THE WAR FOR TALENT ESCALATES
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THE WAR FOR TALENT ESCALATES. ANDREW BLAND 20 April 2006. INTRODUCTION. Unfair dismissal vUnlawful dismissal under new Workchoices law NSW ruling on Casuals and its implications Current legal and financial responsibilities to independent contractors

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THE WAR FOR TALENT ESCALATES

ANDREW BLAND

20 April 2006

© BlandsLaw 2006


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INTRODUCTION

  • Unfair dismissal vUnlawful dismissal under new Workchoices law

  • NSW ruling on Casuals and its implications

  • Current legal and financial responsibilities to independent contractors

  • Anticipated changes under the Independent Contractors Act

  • Implications of Workchoices

© BlandsLaw 2006


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 Unfair Dismissal

  • Workplace Relations Act now applies to all corporations

  • Corporations with 100 employees or less will be exempt from unfair dismissal laws

  • Such corporations may terminate employment for whatever reason without needing to provide warnings

  • However, must still not terminate for unlawful reasons (see below)

  • Corporations with more than 100 employees will still be liable for unfair dismissal laws

    • The qualifying period is extended from 3 to 6 months for bring a claim and claims cannot be made where terminated for operational reasons

© BlandsLaw 2006


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 Unlawful Dismissal

  • No employer can terminate for a prohibited reason.

  • These are

  • Temporary absence due to illness or injury

  • Temporary absence for volunteer work

  • Discriminatory reasons-sex,age,gender,sexual preference,marital status,pregnancy etc

  • Refusal to terminate or enter an AWA

  • Absence due to parental leave

© BlandsLaw 2006


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 NSW Ruling on Conversion of Casuals

  • NSW IRC handed down decision on 28 February 2006 (Secure employment test case)

  • Gives casuals the right to request permanent employment after six (6) months

  • Only for award employees

  • Will not apply to businesses under Workchoices (corporations)

© BlandsLaw 2006


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Dealing with independent contractors- current requirements

  • Self employed contractors now account for 10% of workforce

  • Contractor or worker? Tests include:

    • Control

    • Insurance

    • leave entitlements

    • ability to delegate

    • other sources of income

    • trading as a business name

    • liability issues

  • There are a number of implications if the relationship is a sham

© BlandsLaw 2006


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Dealing with independent contractors- current requirements

  • Payroll - if it is not a contractor you may be liable to large penalties

  • Taxation-the contractor will be liable for PAYE if not contractor

  • workers compensation-deemed worker provisions may apply

  • OH&S - will be liable in any event. Employers are liable for the acts of contractors and are responsible for their safety

  • Will not exclude responsibility for discrimination claims

© BlandsLaw 2006


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Proposed Independent Contractors Act

  • Expected in May 2006

  • Seeks to change relationships with independent contractors

  • Stated aims are as follows:

  • Review the definition of employer,employee and contractor-common law approach is being considered

  • Prevent award and agreements from containing clauses that put limits on independent contractors

  • Legislating contractual arrangements under commercial law not industrial law-implications for s106 of Industrial Relations Act (NSW)

  • Addressing state legislation and deeming provisions

© BlandsLaw 2006


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CASE STUDY 1

  • Ingrid has a business which employees sixty two people. Most of her employees are hardworking and perform well.

  • However there are three employees who have been with the company several years and Ingrid is not satisfied with their performance.

  • Previously Ingrid had been advised that she was required to provide at least three warnings to these employees about their performance and was required to give them ample opportunity to improve their performance.

  • Ingrid has not provided any formal warnings to these employees however she believes that if she did this she would not be able to terminate these employees for at least six months.

  • Under work choices Ingrid is able to terminate the employment of these people immediately without providing them with any such warnings.

© BlandsLaw 2006


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CASE STUDY 2

  • Avery Pty Ltd is a company that employees over 100 people.

  • It has an employee who has been with the company for 5 months at the time that the amendments to the legislation commence.

  • Avery believes that it can terminate the services of this employee and that they will be exempt from unfair dismissal laws.

  • However, as the employee was employed at the time of the commencement of the amendments he will still be able to bring a claim.

© BlandsLaw 2006


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CASE STUDY 3

  • Beckett Pty Ltd has an employee(Jim) that is probably the best at their job of all of its employees. However Beckett believes Jim is a “trouble maker” as he called the Anti Discrimination board on previous occasions resulting from a dispute with an employee. Jim also caused “trouble” for the company by complaining about some bullying that has been going on with another employee.

  • The company is fed up and decides to terminate Jim and gives no reason for it. Jim complains that it is because of his whistle blowing activities. In the dispute an internal memo is found from the Managing Director which says “this guy is causing us grief at the discrimination tribunal. It cannot be allowed to continue. I want him gone.”

  •  Jim will be successful in bringing a unlawful termination claim against Beckett.

© BlandsLaw 2006


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CASE STUDY 4

  • Smith will work 4 days per week-Mondays,Tuesdays,Wednesdays and Thursdays

  • Smith will be required to work at least 9 to 5 and perhaps longer at the reasonable request of Jones

  • Smith will be paid by the hour

  • Smith will be able to determine the way in which the job is done but Jones will determine when it is to be completed by

  • Smith is free to engage with other companies outside of the hours outlined by Jones

  • Smith must carry his own Public Liability and Workcover Insurance

  • Smith will invoice Jones monthly

  • The contract clearly states that Smith is not an employee

  • Jones will allow Smith to use other labour on request.these will be employees of Jones

     IS SMITH A CONTRACTOR OR EMPOYEE?

© BlandsLaw 2006


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About the Presenter

Andrew Bland is the proprietor of BlandsLaw, a firm specialising in Workplace and Business Law.

Formerly a Partner at PricewaterhouseCoopers Legal, Andrew has been advising Businesses on all aspects of their Workplace and Commercial issues.

Andrew works with Business and provides advice that is strategic, commercial and legally sound with the aim of implementing a framework from which his clients can work.

Some examples of the advice Andrew provides are:

  • Drafting Employment Contracts and Employment Policies

  • Advising on Workplace Restructuring options

  • Drafting Independent Contractor Agreements

  • Advising Employers on workplace disputes

  • Strategic advice on workplace options

  • Advising and drafting of Commercial Sale & Purchase Agreements

  • Drafting Service Contracts

  • Setting up Franchise Businesses

Contact details:

Andrew Bland

Mob 0401 244 418

Email [email protected]

© BlandsLaw 2006


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