HR Breakfast Club - Archive

  • salary overpayments

    Salary Overpayments And Deductions: HR Breakfast Club April Summary


    This month John Wilson, Managing Legal Director at Bradley Allen Love, spoke about recovering overpayments from employees.

    John Wilson is Canberra’s leading employment lawyer. He is the Managing Legal Director at Bradley Allen Love and has been a NSW Law Society accredited specialist in Industrial Relations and Employment Law for over a decade. In 2017, John became a member of the NSW Specialist Accreditation Employment and Industrial Law Advisory Committee

    How do you recover overpayments?

    Some enterprise agreements will allow employers to make deductions from wages to offset overpayments. In absence of any enterprise agreement, an employer should come to an agreement with the employee (in writing) about any future deductions from their wages.

    What can you do if the employee does not agree to pay back an overpayment?

    This can happen in two ways, (1) the employee can refuse to pay back the money or (2) the employee can withdraw their consent to have deductions made from their wages.

    In these circumstances the employer can seek to recover the overpayments by applying to the courts for an order of restitution. This is not a desirable outcome – it is much easier to come to an agreement with your employee in the first instance.

    Are there some circumstances where you cannot recover overpayments?

    You can only recover an overpayment for up to  years. If a person has been overpaid for 10 years you will only be able to seek repayment for the last 6 (equally, an employee can only seek to be reimbursed for underpayments for up to six years).

    Generally employers are not able to recover overpayments that arise out of a contract. If the employer accidentally gave the employee a contract with a larger bonus than intended the employer is most likely contractually bound to provide this bonus – even if it was not what they had had in mind.

    Q & A Corner

    Q: What if an overpayment happened 10 years ago but you only just discovered it today? Do you have 6 years from today to reclaim the overpayment?

    A: No, you can only recover overpayments from the last 6 years regardless of whether the parties did or did not know about it.

    The HR Breakfast Club runs on the third Friday of every month at BAL Lawyers. If you would like to be added to the invite list, please contact us. The next HR Breakfast club will be held of 18 May 2018 – for more details, please click here.

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  • wellbeing at work - hr breakfst club march summary

    Wellbeing at work: HR Breakfast Club March Summary


    This month, guest speaker, Lauren Sayers – Deputy HR Manager at the ANU spoke about the importance of developing a wellbeing program for the workplace, and some tips on how to implement one successfully.

    Lauren is an ACT Australian HR Institute (AHRI) Council member & forum convenor and has 15+ years of management and HR experience across Hospitality, Telecommunications and Tertiary Education sectors. Lauren spoke about:

    What does a wellbeing program include?

    Employee health and wellness programs can include activities that promote good employee health, identify health-related risks in the employee population, and
    look to support any potential health-related problems present in the employee population.

    Why should we invest in wellbeing program?

    Employers should work to create a healthy workplace for a few broad strategic reasons:

    • To control the financial costs associated with an unhealthy workplace
    • and to gain the benefits of;
    • A healthy workforce;
    • To build the organisation’s employer of choice profile; and
    • Possible legal implications – e.g. WHS/workers compensation etc.

    A further example of reasons to invest in employee health and wellbeing and the relationship between employee healthand engagement.

    Example interventions and wellbeing program activities:

    The following examples can be used to build a workplace wellbeing program.

    • Healthy @ work- ergonomic assessments
    • Body and Mind & work
    • Winter wise- flu shots
    • Financial wellness – financial advice
    • Relaxation – complementary therapies
    • Physical Health – health assessments
    • Mental Health – R U OK Day?
    • Rest – sleep foundation
    • Summer Safe – Cancer Council
    • Stretch zone – promote workplace stretching and time away from workstation
    • Rest zone – sun lounger/sleep pod
    • Mindfulness zone- e.g. reading, colouring in, Sudoku

    You can download a copy of the slides from the presentation here.

    The HR Breakfast Club runs on the third Friday of every month at BAL Lawyers. If you would like to be added to the invite list, please contact us. The next HR Breakfast club will be held of 20 April 2018 – for more details, please click here.

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  • Workplace Privacy Candid Camera Covert Surveillance

    Workplace Privacy - February HR Breakfast Club Summary

    The focus of Australian labour law continues to move beyond securing core industrial rights regarding wages, towards issues surrounding wellbeing, mental health, reputation and workplace privacy. Speaking on workplace privacy and surveillance, Rebecca’s presentation focused on:

    1. whatprivacy legislation applies to your organisation (noting that all employers are subject to legislation surrounding the privacy of Tax File Numbers and health information);
    2. the impending amendments to the Privacy Act 1988(Cth) regarding reporting of privacy breaches and the European General Data Protection Regulations;
    3. when, and how, you can monitor employees in the workplaceand their IT use (emphasizing the importance of making sure your ACT-based organisation has a policy in place that notifies employees of workplace surveillance).

    Workplace privacy case study video:

    Take aways:

    1. Employee medical files must be kept confidential
    2. Employees must be notified prior to the emails being monitored

    Q&A Corner

    Q: We share so much of our lives online these days, how can people expect to have privacy in the workplace? What are employers supposed to do when sensitive information is disclosed outside the workplace (for example, on Facebook) and is subsequently the topic of discussion among employees?

    A: These days a lot of individuals are willing to share their private lives on social media – but not in their workplaces. It is important that employers comply with the relevant privacy legislation when it comes to information they receive from the employee. Two employees discussing a colleague’s broken leg (after seeing a picture of it shared on Instagram) is not equivalent to an employer discussing an employee’s medical certificate at morning tea.

    Q: What constitutes a ‘health record’ for the purposes of the Health Records (Privacy and Access) Act 1997 (ACT)?

    A: A ‘health record’ is any ‘record’ which contains ‘personal health information’.

    Personal health information is any information:

    1. relating to health, illness or disability; or
    2. (if the employer is a health service provider, such as a hospital) any information collected in relation to the health, illness or disability of a consumer.

    A Record is a record in documentary or electronic form that consists of personal health information. Examples of records are:

    1. Documents;
    2. Photographs;
    3. Emails;

    This answer is, of course, general commentary only.  It is not legal advice.  Readers must contact us and receive our specific advice on the particular situation that concerns them before acting or refraining from acting.

    For more information about workplace privacy, please contact Rebecca Richardson.

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  • Psychological Injury Workers Compensation HR Breakfast Club - January Summary

    Psychological Injury Workers Compensation: HR Breakfast Club - January Summary

    This month, we discussed the impacts of Mental Health Workers Compensation.

    This month, we discussed the tricky minefield which is workplace psychological injuries, how they arise, and when they are compensable. Bill McCarthy, BAL Special Counsel who has extensive experience in workers compensation and insurance law, shared some of his insights on the topic. Bill touched on:

    The different types of workplace psychological injuries:

    • Psychological injury attributed to work-related stress may include such disorders as depression, burnout, anxiety, post-traumatic stress disorder and adjustment disorder.

    Some statistics about psychological injuries:

    • Psychological injury accounts for around 11% of accepted claims within the Comcare scheme.
    • Psychological injury accounts for approx. 30% of the cost of Comcare claims.
    • Workers with psychological injury are staying off work for longer. 55% of psychological claims that reach four weeks lost time continue on to 13 weeks of lost time.
    • The impact of mental harm is delayed recovery, slow return to work and increasing claim liabilities resulting in premium pressures.

    What is adjustment disorder, and why is it controversial

    • The specific signs and symptoms of an adjustment disorder may vary greatly from one affected person to the next. There are currently 6 recognised sub-types of adjustment disorder – Adjustment disorder with depressed mood, Adjustment disorder with anxiety, Adjustment disorder with mixed anxiety and depressed mood, Adjustment disorder with disturbance of conduct, Adjustment disorder with mixed disturbance of emotions and conduct, and Adjustment disorder unspecified. There are so many different presentations of this disorder, and sometimes it feels as though it is a “waste-basket diagnosis” which is assigned to those who fail to meet the criteria for other mental disorders.

    When is a psychological injury compensable?

    A psychological injury is only compensable if it arises out of or in the course of employment. The employment must have been a significant, material, substantial or the major contributing factor to the injury. However, psychological injuries that have arisen out of ‘reasonable action’ taken by the employer are not compensable. For example, if an employee develops anxiety or depression as a result of a (fair) poor performance review, it is unlikely that that injury will be compensable.

    This answer is, of course, general commentary only.  It is not legal advice.  Readers must contact us and receive our specific advice on the particular situation that concerns them before acting or refraining from acting.

    If you would like to join the HR Breakfast club, it runs on the third Friday of every month, please get in contact.


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  • HR Breakfast Club Christmas

    Christmas: HR Breakfast Club - December Summary

    This month, we discussed 6 scenarios that have happened during the Christmas period, and the lessons that can be learnt from them.

    This month at HR Breakfast Club, we had a Christmas themed discussion around some of the notable Employment Law cases that have occurred recently at this time of year.

    One of the most notable was that of Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156.

    A work Christmas function took place in a hotel where employees had unlimited access to alcohol.

    The employee consumed 10 beers at the function. During the function, he told a member of the board to “f*#! off” and asked a female colleague “who the f*#!  are you?” The employee also tried to obtain a female colleague’s phone number.

    After the function ended at 10pm, a group of employees moved to a public bar where they purchased their own drinks. At this stage of the evening, the employees touched a female colleague’s chin, said to another “I used to think you were a stuck up b*+#! ”, kissed a third on the mouth without warning and told her “I’m going to go home and dream about you tonight”.

    This behaviour continued while en route to another venue with colleagues, where he told a fourth female colleague that it was his mission that night to find out the colour of her undergarments.

    Subsequent to the employee’s behaviour that night, a number of complaints were made, there was an investigation and the employee was dismissed. He then commenced a claim for unfair dismissal.

    Lessons for employers:

    • Make it clear when the Christmas function has finished. The fact the Commission held that the employee’s behaviour after the work function has ended was not connected to his employment means this distinction must be clear. Consider, for example, clearing the employees out of a particular function room, ensuring they all know that after a particular time the work function has ended and they are on their own time.
    • Make specific, not general, allegations of misconduct. In this decision the employer did not articulate specific allegation of misconduct; only general allegations were made. This was to the employer’s detriment – the Commission found this constituted a lack of procedural fairness.
    • Consider having a type of ‘alcohol manager’ at the function who has the power to cut off intoxicated employees. Vice President Hatcher made an important observation in considering the role of alcohol at the function. He considered the employee’s ability to continue drinking “notwithstanding his visible intoxication” was “ultimately a result of the fact that [the employer] did not place anyone with managerial authority in charge of the conduct of the function, but essentially let it run itself”. Consequently, Vice President Hatcher held that the role of alcohol at the function weighed “at least in a limited way, in favour of a conclusion that the dismissal was harsh”. The take-home message here is that it is advantageous for an employer to have a “managerial authority” present at the function whose role includes monitoring for intoxication and having the power to cut intoxicated employees’ supply to alcohol.


    Q: Who still gets annual leave loading? Why does it still exist?
     Today, annual leave loading still applies to a number of modern awards and workplace agreements. Employees across a wide range of industries benefit from the standard 17.5% prescription, although this percentage can vary (e.g. Clerks (17.5%), banking sector (17.5%), fast food industry (17.5%), hair and beauty industry (17.5%), architects (17.5%), aged care (17.5%), building/construction (17.5%), teachers (17.5%), ACT public sector (17.5%) Australian Government Industry Award (no annual leave loading, paid at the employee’s ordinary hourly rate).)

    The key arguments in favour of annual leave loading are firstly that a holiday bonus is “necessary in order to allow the employee to meet the additional expenses involved in travelling to a holiday location and enjoying a break from ordinary lifestyle.” Secondly, it is argued that a loading “would compensate for the lack of earnings above the award rate which many employees would regularly receive, such as overtime payments, shift allowances and other disability payments” and other opportunities to earn additional income. Logically, the annual leave loading attempts to address the problem of people trying to fund a (potentially family) holiday on wages substantially lower than usual or at a minimum wage level.

    This answer is, of course, general commentary only.  It is not legal advice.  Readers must contact us and receive our specific advice on the particular situation that concerns them before acting or refraining from acting.

    If you have a question about behaviour at your office Christmas party, or would like to attend HR Breakfast Club, please contact us.

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  • Workplace Policies

    If in doubt, leave it out: Making workplace policies work

    It’s only natural (for some) to try to pin things down in writing (workplace policies). This is particularly true for those in the people management business, and especially for those among them who are exposed to bureaucracy. That way everyone knows where they stand – right?

    And so the drafting of the HR policy manual begins. Cutting and pasting from here and there while adding their lashings of common sense, the drafters of an HR policy manual do their best to spell out all manner of things relating to work. What is the social media policy? What is the organisational policy on the Christmas shutdown? Where are the tea towels kept? Then the CEO and the Board add in a few of their pet peccadillos, and a HR policy manual is born.

    Sooner or later the original drafters leave the organisation. Eventually, the new policy person gets around to looking at the HR policy manual. They notice a gap in coverage, and add a few more policies, drawing from their previous workplace experience and their own brand of common sense. The new CEO and Board members do likewise. The cycle repeats itself.

    Within a few years, the manual has grown to 5 times its original size. The policies overlap. Inconsistencies emerge between the ‘grievance policy’, the ‘dispute resolution policy’ and the ‘Code of Conduct’ and nobody knows which policies to apply when an intra-staff spat breaks out. In fact, the CEO isn’t even sure if the staff concerned know of the existence of the updated policies, since the version published on the intranet isn’t the version that was included in the employee induction pack. Plus one of the staff members involved in the spat is out in the field and doesn’t have access to the intranet anyway.

    Does all this sound familiar?

    Policies are just that – policies. That is: a document drafted by the organisation for the benefit of that organisation. Unless a policy is serving that purpose, it should be ditched.

    For a start, this means policies should be clear, and internally consistent. If they aren’t, the organisation should change them so that they are. Make sure all your staff know where to find the policies, and make sure any updated versions are clearly published to everyone.

    Secondly, policies should not duplicate or, worse, be inconsistent with employee entitlements located elsewhere (for example, in the employee’s contract, the relevant Modern Award, the Enterprise Agreement or the Fair Work Act). This just asks for trouble. While this all sounds terribly obvious, in my practice it is routine to see (for both NFP’s and FP’s alike) HR policy manuals including substantive entitlements (to, say, redundancy and termination of employment) that are different to the entitlements in the employee’s contract or Award. This can have unintended consequences for everyone and is particularly hard to watch given it was a wholly avoidable situation in the first place.

    Thirdly, the promises (if any) made in the HR manual must be achievable. Courts will not allow clear policy statements to act as a ‘cruel hoax’ on employees.[1] Also, on a common sense level, it just upsets staff when their employer doesn’t follow its own rules. So, if the policies proclaim that the organisation ‘will investigate all grievances within 48 hours’, the organisation must be able to deliver on that – in all cases. If it can’t (and, let’s face it, who wants to be pinned down to that anyway?) then the policy should be recast in more aspirational terms. For example: ‘where appropriate, the organisation will investigate grievances within the earliest practicable timeframe.’ Workers are people, and no two people (or situations) are exactly alike. Policies must be drafted to give your organisation the ‘wiggle room’ it is going to need to respond fairly and reasonably to every workplace situation.

    Finally, give some thought to whether the policy should even exist at all by asking yourself “do we really need to write this down?” Remember, the only HR policies that should exist are the ones that are necessary. Specifically, the ones that:

    • avoid legal liability (e.g.: include policies on sexual harassment, workplace surveillance, and work safety);
    • provide necessary workplace directions to employees that, if breached, can be treated as a disciplinary issue (e.g.: regarding the use of electronic communications and social media in relation to work);
    • give information to employees about basic workplace operations (e.g.: this is how to apply for annual leave); or
    • contain statements of aspiration about the organisation (e.g.: ‘we strive to be a family friendly workplace’).

    HR policies that seek to go beyond this list need to be carefully contained and justified. While NFP’s have some compliance obligations they cannot avoid, they are not the public service. This means that if you look carefully at HR policies, you may well find that less is more.

    [1] Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784, [223].

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  • Reference Checking - BAL HR Breakfast Club

    Reference Checking: HR Breakfast Club June Summary

    This month, we discussed the importance of reference checking. Ian Meagher chaired the meeting with special guest Jeremy Boland, Principal Consultant at Gillian Beaumont Legal Recruiting giving some insight on reference checking:

    1. What is appropriate information to release, and ask for, as part of a reference enquiry?
      In all cases, relevance is key. If the information is relevant to how a potential employee may ultimately perform in an applied for position, that is essentially what the potential new employer should be looking for. Asking questions that relate to a potential employee’s values is permissible, provided it is within reason and does not extend into any discriminatory areas.
    2. Do I need to provide a reference, if asked?
      No.  In fact, you may be doing the person a disservice by doing so. Whilst a possibly uncomfortable conversation to have, there may be times when the appropriate answer to being asked to provide a reference is to flag that, for whatever reasons you may hold, the person may wish to consider asking another person to speak for them

    There was also a short video case study about the importance of reference checking. Watch it again.


    Q. Can I direct an employee to not provide a reference for an outgoing employee?

    A. Provided the direction is reasonably made (which, in general terms, should be so), such a direction will be lawful.  The reason why such a direction should be reasonable for an employer to make is because if a current employee gives a reference as an agent of your business, then it will reflect poorly on your business if it turns out to be inaccurate.  Requiring control of such decisions to vest with the directors, owners or such other appropriate senior staff, is thus reasonable.

    If you are interested in attending HR Breakfast Club, please submit your email below and you will be added to the invite list.

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  • Performance Management Video - underperformance policy

    Performance Management: HR Breakfast Club May Summary

    This month, we discussed the importance of Performance Management. Cecilia Blewitt spoke on the nuts and bolts of performance management, including the benefits of:

    • Monthly reviews;
    • Continuous performance management for all staff; and
    • Having clear KPI’s and letting staff self review against them before their formal review to create accountability and ownership.

    Gabrielle Sullivan spoke about the dangers of performance management ‘gone wrong’, including:

    • Inconsistent performance management leading to unfair dismissal and other claims;
    • The importance of organisations following their own performance management policies to the letter;
    • The importance of performance management policies being easy for an organisation to comply with; and
    • The link between performance management, bullying claims, and workplace absences.

    The safest way for an employer to safeguard themselves is to make sure all performance management is ‘reasonable management action’. One way to gauge whether the action is ‘reasonable’ is to seek a second opinion.

    There was also a short video case study about managing performance in the workplace. Watch it again.


    Q. What can you do when an employee who is being performance managed goes on indefinite personal leave?

    A. If the employee has a valid medical certificate, then you must allow them to take their accrued paid personal leave. Once the paid accrued leave runs out, the employee is still considered to be temporarily absent from work on account of illness or injury until the unpaid absence extends for more than three months or an aggregate of three months in any 12 month period.  At that point, consideration can be given to terminating the employee’s employment because they cannot perform the inherent requirements of their position and it is unclear when, if ever, they will be able to do so.  In any event, you should make clear to the employee that their illness is a separate matter and that the management of their performance will continue if and when they are able to return to work.

    This answer is, of course, general commentary only.  It is not legal advice.  Readers must contact us and receive our specific advice on the particular situation that concerns them before acting or refraining from acting.    

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  • Recruitment - BAL HR Breakfast Club

    Recruitment: HR Breakfast Club April Summary

    This month, we heard from guest speaker, Andrew Marshall, on recruitment.

    Andrew, kindly, spoke on the attraction, recruitment and retention of employees in today’s HR world.  Under each point, some of the talking points that arose included:

    1. Attraction

    • Employer Branding: Branding is more than an administrative function, and requires strategic considerations.  How one’s external and internal branding is delivered and received is an important distinction and one that some concerns were discussed in relation to.  Ensuring a consistency between your perception of your brand, as compared to the outside world’s perception, is important.
    • Value Proposition: What is your point of difference in employees wanting to work at your workplace?  As a tip, one way to look at this is from the employee’s perspective.  That is, what is their driving purpose for wanting to work with you?  How can you deliver on that, and get those benefits across, will increase your perceived value to prospective applicants.  This said, it delivering on your advertised value adds is necessary – promising the world may lead to a low retention rate.

    2. Recruitment

    • Evaluating personality profiles is not necessarily straight forward.  Experience and qualifications can be more easily documented, but competencies such as an applicant’s ability to be a leader may be harder to determine at the interview stage.  Understanding why an employee wishes to get into your work field is a useful consideration in determining their drivers – but be careful that you have not oversold the area they are pitching themselves into.  Personality profile tools can be useful, but be careful in using the right model, and don’t disregard your own judgement.

    3. Retention

    • Get the first two right (ie Attraction and Recruitment) and this should follow.
    • Keep consistency between your external brand and internal brand.
    • Recruit people for the right roles, with solid recruitment processes.  Widely scoped recruitment will (often unhelpfully) lead to a greater pool to sift through to get to the applicant you really want

    If you are interested in attending HR Breakfast Club, please submit your email below and you will be added to the invite list.

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  • HR-Human-Resources-Bully-Harassment

    Bullying and Harassment: The New Black in HR

    Being a HR manager, there will often be times you have to deal with employees not getting along.

    You may be dealing with employees complaining about being bullied, requests to be moved to different office locations, claims of unfair work loads and staff taking long breaks.

    These situations can get out of hand very quickly if not dealt with swiftly.

    To illustrate some of the do’s and don’ts of how to deal with bullying claims at work, watch the case study video below that follows Sarah, Jim and Julia through their tales of bullying. This tale is based on a true story, but for education purposes only, of course.

    The video highlights Sarah’s story as a manager at an accounting firm, and her actions around some of the employees she supervises.

    Jim thinks Sarah is putting too much pressure on him and makes a bullying complaint to the HR Manager.

    Julia makes a complaint to HR that she is being bullied by Sarah her as well, citing that Sarah ‘monitors her breaks’.

    Sarah, in turn makes a complaint about the two employees that have made unsubstantiated bullying accusations against her, she also feels that they have been spreading rumors about her.

    The claims end up in front of the Fair Work Commission, who note that these issues should have been dealt with on a HR level, and not have been allowed to escalate to this point.

    Bullying at work occurs when: a person or a group of people repeatedly behaves unreasonably (objectively!) Towards a worker or a group of workers at work, and the behaviour creates a risk to health and safety.

    Take Note: bullying does not include reasonable management action carried out in a reasonable manner.

    It is important to refer to your office bullying and harassment policy, to make sure you are treating employees fairly and reasonably.

    If you need help dealing with bullying and harassment claims at work, please contact the employment team.

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