Thursday, 17 November 2016

I've agreed to be a support person, but I don't know what that means

As a support person you play an important role supporting, but not advocating, for your friend/colleague. First let's start with some background on the role of a support person

Why employers offer a support person

The Fair Work Act (s387(d))  states that if an employer unreasonably refuses an employee's request for a support person to the present at a meeting which may lead to a dismissal, the dismissal may be considered harsh.
This does not mean that every meeting that you are invited to bring a support person to may lead to dismissal, many Companies offer a support person as good practice for any meetings that are part of an investigation (even where you are being interviewed as a witness) ,disciplinary process, or consultation on workplace changes (for example, that may lead to redundancy).

The role of a support person

The Fair Work Commission has given us some direction here. As a support person you:

  • need to be aware of confidentiality. It probably goes without saying, but you are required to keep the meeting confidential and not talk about it with others unless there is good reason (e.g. obtaining legal advice)
  • are not an advocate. This means that you are not to speak on behalf of the employee. You are there as a witness and support. 

Although you can't speak on behalf of the employee, you can speak to the employee and give them prompting/ideas/questions to ask. You should also keep good notes of the meeting. Your friend/colleague will have a thousand things running through his/her mind, so having notes to go back to is a good idea. You can ask for permission to record the meeting. If you do not ask permission and record the meeting, please first reference the relevant state/territory legislation regarding this, and also be aware that the Fair Work Commission generally views convert recordings in the workplace as unacceptable. 

Preparing for the meeting

It is a good idea to be prepared and ask your friend/colleague for any information they have regarding the meeting. This will help you both 'brainstorm' some questions that you may have prior to the meeting. You can then make sure before the end of the meeting that you have had these answered and you are clear on next steps.

Next Steps

Don't leave the room unless you are clear on what the next steps are. You shouldn't agree to anything on the spot (e.g. signing any documents, deciding between redeployment or redundancy), but have the opportunity to discuss and decide after the meeting.
If you are concerned about the way the matter is being handled, or the possible outcome, then it may be a good idea to seek some independent advice.

More workplace tips
Whether you are an employee or run your own business, we'd love for you to join us at Savvy Business Women, our Facebook group dedicated to information, collaboration and support.

Thursday, 3 November 2016

Am I an employee or a contractor?

You see your dream job advertised, go for the interview, they offer you the job.. hooray! And then they ask you to provide an ABN and your rates.

This recently happened to Simon* who was left feeling a little confused. The Company told him they would provide him with training (which they said was worth $4000), they would provide him with the clients, hours and days to work and all the tools required. So, is he an employee or a self employed contractor?

Photo credit: bark via Visual hunt / CC BY

The Fair Work Act provides a list of indicators that can help to determine if you are an employee or a contractor. These are:

  • Degree of control over how the work is performed
  • Hours of work 
  • Expectation of work
  • Risk
  • Superannuation
  • Tools and Equipment
  • Tax
  • Method of Payment
  • Leave
There are also penalties for any employer trying to disguise an employment relationship as a contracting one (this is called "Sham Contracting"). It is not enough to simply state that someone is not your employee.
In Simon's case, as the Company would be providing the clients, directing his hours and how his work is performed and providing tools and equipment, this would more than likely be seen by the Fair Work Comission to be an employment relationship.

The ATO also has a very good tool to be able to determine if you are an employee for Tax purposes (which is one of the Fair Work indicators above). You can find this tool here.

As I write this, I received a notification about a case in the UK where two Uber drivers have been found to be employees, and not contractors. Naturally, Uber is playing down the potential ramifications of this decision, but it is an interesting one where Uber drivers in Australia are currently considered contractors, but Taxi drivers are employees. As the "share economy" continues to grow, there are likely to be more of these cases brought before the Fair Work Comission for a ruling. You can read about the British decision here.

What to do if you feel you are an employee and not a contractor?
You should seek advice from an employment lawyer before agreeing to anything, or if you are already working in this scenario, then you can still seek advice and claim for back-pay of Superannuation, long service leave etc.

More workplace tips
Whether you are an employee or run your own business, we'd love for you to join us at Savvy Business Women, our Facebook group dedicated to information, collaboration and support.

*Simon is not his real name

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