Five things to consider when hiring a new employee
April 19, 2023
Author name
Hiring employees is an important part of growing your business, bringing new skills and perspectives into the workplace. However the hiring process can be overwhelming. Ensuring that you have started the employment relationship with thorough and accurate knowledge of your responsibilities, and having all the correct documentation in place, can be daunting. As part of our Bailiwick Workplace employers’ series, we will talk you through some of the legal obligations that you should know when engaging your new employee.
1. Your Legal Obligations
Do you know where your legal obligations stem from? Is the employment relationship covered by the Fair Work Act or state legislation? Will your employee be covered by an award or enterprise agreement? It is crucial that you know what your employment obligations are and where these arise from, and ensure that you are up to date with any recent changes.
2. Permanent, casual or contractor?
In deciding to take on an employee, you will have considered the capacity in which to engage them: full time or part time, permanent, casual or fixed term or for a specified task.
However, just because an employee is called a ‘casual’, even in a written employment contract, this is not conclusive of their status. There are a number of legal authorities which state that even though in the contract of employment the employee was described as a ‘casual’, and paid as such, the employee was entitled to the benefits of a permanent employee.
Similarly, with contractors there can often be a fine line as to whether they are contractor or employee. Again, a written contract may not be definitive of the status of a contractor (versus an employee). The ATO has a useful video guide to help you make this distinction: https://www.ato.gov.au/Calculators-and-tools/Employee-or-contractor/.
If classified incorrectly unpaid entitlements may become payable. As every case is different, employers that are unsure should always seek legal advice.
3. Paperwork
Do you have the necessary paperwork in place? Has this been provided to your employee, and signed and returned?
As well as your employee’s taxation and bank details, it is important to consider what other paperwork should be prepared.
An employment contract can be important in mitigating your risk as an employer and ensuring both parties are clear on the terms of employment, an issue we will cover in more detail in a later article.
Other documents that you should consider include: an induction manual, workplace policies and procedures, a copy of the fair work statement (if applicable), and a copy of any applicable award or agreement. Have you taken copies of identification, qualification certificates, driver’s license and visa details (if relevant)?
Please note that as of 1 July 2019, unless an exemption applies, all employers are required to have joined the Single Touch Payroll scheme. For more information see: https://www.ato.gov.au/Business/Single-Touch-Payroll/
4. Training
With greater focus than ever on workplace safety, and recent increases in fines, it is essential that every employer considers their workplace safety and health obligation for every new (as well as existing) employee.
This includes the requirement to train employees appropriately. Section 19 of the Occupational Safety and Health Act 1984 (WA) (OS&H Act) states:
“(1) An employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer (the employees) are not exposed to hazards and in particular, but without limiting the generality of the foregoing, an employer shall —
…
(b) provide such information, instruction, and training to, and supervision of, the employees as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards;”
In circumstances where an employer is grossly negligent in breaching this requirement, the OS&H Act provides for fines of up to $550,00.00 for an individual, as well as 5 years imprisonment, and $2,700,000.00 for a body corporate (increased last year from $500,000.00 for body corporates).
Please note that there will be further significant developments in this area if the Western Australian Model Work Health and Safety Bill (WHS Bill) is passed in parliament this year.
Employees should receive ongoing information about health and safety matters affecting their work. Some things for employers to think about when bringing on a new employee are:
- Has your new employee:
- been given a tour of the premises and adequate induction?
- been given access to workplace safety policies and guidelines?
- received training on all equipment required to perform their role?
- Are safety instructions available for all equipment?
- Does your employee require any supervision?
- Is your employee aware of hazards or potential hazards?
- Is a safety briefing required, and how often?
We recommend regular training needs analysis with each employee, which should include consultation with the employee about their training needs. It is important to document all training and meetings, and to retain this documentation to protect your business.
5. The end of the relationship
Although you have just taken on a new employee, it is important to think about what happens at the other end.
You would require a crystal ball to see when and under what circumstances the employment relationship will end, however, from a risk management perspective, it is important to consider the following matters at the beginning of the relationship:
- Will the employee be privy to confidential or sensitive information that may damage my business if disclosed?
- Do I need to put measures in place to protect my client base?
- How much notice will I need to find a replacement, and should I allow the employee to be paid in lieu of this period?
These are matters that can be dealt with in a written contract, and if handled correctly, may save a lot of pain (and money arguing the point) at a later date.
There are many resources available to assist you when taking on a new employee, and we will be happy to have a conversation with you if you have any questions.
TIP: The Australian Government’s ‘Business’ website provides a helpful checklist to assist small businesses to learn about their employee obligations: https://www.business.gov.au/people/hiring/taking-on-an-employee-checklist
If you would like further information in relation to how the above matters may affect your business, please contact us on (08) 9321 5451.
Please also subscribe to our newsletter to be alerted to further articles in this series. Next time we will be looking at employment contracts and what should be included.
For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au.
The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
Our June 2024 newsletter is now available. Have a read to find out what we have been up to in the first half of the year!
The International Sustainability and Carbon Certification (ISCC) System has come to the attention of many Western Australian farmers recently, as the scheme has changed one of its policies regarding aerial spraying. What is the ISCC? The ISCC is one of the world’s largest voluntary sustainability certification schemes enabling participants to demonstrate they are producing materials in a sustainable way that meets or exceeds community expectations. In Australia it is widely used in the canola industry, enabling Australian canola growers to access the European biofuel market. CBH Marketing and Trading holds certification for the ISCC EU and ISCC PLUS programs, that cover canola, barley, oats, wheat and lupin, allowing WA growers to participate in both programs. Participating in the ISCC program can result in a premium on grain, however participants are subject to more stringent measures to satisfy sustainability accreditation requirements. Recent decision on aerial spraying ISCC Principle 2.6.2 prevents aerial spraying from taking place within 500 metres of a body of water. CBH has successfully lobbied for an exemption to this Principle, for farm dams and salt lakes of low ecological value. As part of its lobbying, CBH provided expert reports to the ISCC on the hydrology and ecology of WA farm systems. For farmers who are signed up to the ISCC program, this removes an obstacle during the season for weed management. The Principle does still require a 500 metre buffer for other bodies of water, including freshwater lakes, rivers, ponds or creeks. However, for those who farm yabbies and marron, this change may not be welcome. Marron and yabby farmers have noticed impacts on their populations where aerial spraying has taken place close to their properties, and aerial spraying can unintentionally damage natural vegetation, including young and old growth trees. For growers, it’s always prudent to follow best practice guidelines for aerial spraying to avoid spray drift – including monitoring weather conditions and the effect of water added to the chemical. For some farmers, this decision may prompt an examination of whether signing up to the ISCC program might be best for their business. In this circumstance, it is important to weigh up the potential benefits of the program compared to the sustainability accreditation requirements. For others, this decision is a timely reminder to stay up to date with best practice guidelines when it comes to spraying, particularly during the seeding season. For assistance with all of your agribusiness needs, contact Bailiwick Legal on 08 9321 5451 or email office@bailiwicklegal.com.au By Ciara Nalty (Solicitor) For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
How does the Annual Wage Review affect workers and small business owners? Each year, the Fair Work Commission reviews the National Minimum Wage and the minimum wages set out in awards. Cost of living and inflation are front of mind for both employers and employees, and this year’s Annual Wage Review is likely to see an increase in the minimum wage and award rates. The Annual Wage Review is conducted by an Expert Panel, which takes submissions from interested groups, including the Federal Government, unions, and business lobby groups. The Federal Government’s submission to the Wage Review this year called for an increase to the minimum wage, though not specifying an amount. The Australian Chamber of Commerce and Industry has advocated for an increase of 2 per cent, at most. The announcement will likely take place in early June and any increase to the national minimum wage will take effect in the first full pay period on or after 1 July 2024. Failure to pay employees at least the minimum rate that is set out in an applicable award can result in penalties, including requirements for back pay and fines. The Fair Work Ombudsman uses its enforcement powers to issue compliance notices to employers, and recovered $14.8 million in unpaid wages in 2022-23. Small and medium businesses are subject to the same scrutiny as large businesses. For business owners, this is a timely reminder to review employment agreements and payments to staff. You should be conscious of which awards cover your staff members, as award rates for each level increase commensurate with the national minimum wage increase. It is also important to be aware of employee entitlements and set-offs, to ensure you are paying employees what they’re entitled to and avoiding future claims. If you are not sure what award your employee is covered by, have a question about employment conditions or require any other assistance with employment and workplace matters contact Bailiwick Legal on 08 9321 5451 or email office@bailiwicklegal.com.au . By Ciara Nalty (Solicitor) For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
Working with you, working for you
