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Australian businesses wrestle with one of the most complicated workplace relations systems in the world. The rules around wages — known as awards — are notoriously complex. Many countries have one minimum wage. In Australia, we effectively have hundreds. You need to be sure that you’re paying your staff the right amount. Don’t risk trusting the wrong advice. It’s too easy to get wages wrong.

I called to get clarification on an award and was absolutely amazed at the quality of the free information they provided. Very informative and helpful."

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Racing Services, QLD
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Employsure founder Ed Mallett featured on Sunrise.

Ed appeared on Sunrise on September 9th, 2020 to discuss the latest changes in JobKeeper 2.0.

Interested in hearing more? Check out our weekly live streams, every Friday at midday on Facebook.

Ed Mallett On Sunrise, 9 September 2020
Now Australia is facing its worst recession on record with millions of Aussies relying on government subsidies to survive. But at the end of this month businesses, workers, and the unemployed are in for some big changes.

Sure are, both the JobKeeper and JobSeeker payments will drop. New research has revealed just how concerned Aussies are. Here's what you need to know.

It's being referred to as the JobKeeper cliff and Aussie businesses are fearing the drop.

We know that JobKeeper and JobSeeker are keeping the whole country afloat at the moment. We know that it's keeping families going but it's also supporting businesses keep going during this time especially in places like Victoria where they're shut down.

From September 28 the fortnightly payments for full-time employees will be reduced from $1500 to $1200. That will drop again on January 4. If you're a part-time worker, payments will half to $750 a fortnight at the end of this month, and scale back to $650 a fortnight at the start of next year. The JobKeeper scheme is set to end altogether on March 28 next year. For JobSeeker recipients, payments will be cut from $1100 a fortnight to $815 from September 25 and remain in place until December 31.

I think it's a huge mistake to scale back both JobKeeper and JobSeeker. The only way we're going to recover as a country is if people have the confidence to spend.

New research by Mozo shows Australians are concerned. There's a lot of nervousness in the air in many households around the country about how people will be able to manage their finances and pay for things like rent and the mortgage and even groceries once the payments scale back. Mozo's data reveals 1 in 5 would no longer be able to afford their current place of residence. A further 1 in 5 are worried they wouldn't be able to afford groceries, and 1 in 10 predicted they wouldn't be able to afford child care if the subsidies ended too soon. Treasurer Josh Frydenberg says the payment will be tapered as businesses adjust to the new environment, supporting a gradual transition to economic recovery. Now to qualify for the extended JobKeeper scheme you still have to show a decline in sales for the September quarter. For companies with the sales over a billion dollars, that decline's got to be 50% or more. For companies with sales under a billion dollars, it's 30% less. And for charities and not for profits it's a 15% drop in sales.

You need to be very careful with it, for example you've had employees stood down during the last few months and you no longer qualify for JobKeeper, you're going to need to consider whether you need to bring them back which may in turn lead to you needing to consider things like redundancy programs.

And for those on JobSeeker, unless you live in Victoria, you must now connect with employment services and undertake four job searches a month. And if you refuse a job, there will be penalties. Now it is important to note that after September some people on JobKeeper may also be eligible for a part payment of JobKeeper. Your earnings will have to be below $1275 a fortnight so if you're receiving JobKeeper at a rate of $1200 a fortnight with no top-ups from your employer, you may be eligible for a part-time JobSeeker which is about $276 a fortnight, this would take your total payment to $1476 which is close to the original $1500. So there are a few tricks around it to make sure your income can be supplemented.

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Workplace relations can be difficult to understand, and the time and money spent on understanding and implementing changes can be costly.

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Employsure | Confidence In Running Your Business
Man: I'm sure I don't have to tell you that running a small business can be challenging. And the last thing you need are problems from your staff, the very people you hired to make your day easier. But, unfortunately, workplace problems can arise every single day. And as a business owner, you need to be able to navigate some of the most complicated workplace laws and wage systems in the world all while doing your day job, running a successful business. So, who can you turn to for help?

Woman: Good morning. How are you today?

Man: Good morning. I'm very well. How are you?
Ask the experts at Employsure because our day job is dealing with complex workplace relations and awards so you have the confidence and control to get on with your day job. Employsure, one of Australia's leading employment relations experts, offers peace of mind to business owners. Our experts take the time to get to know you and your business and the unique situations that you face. So, you can be sure the advice we offer isn't just a run-of-the-mill robot reply.
Congratulations Tina, and welcome to Employsure.

Woman: Thank you so much for coming today.

Man: But rather completely tailored to the challenges your business faces. What's more, we stand by our advice and we can help you should you ever find yourself faced with a claim. Now, you can't get surer than that.

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Employsure's consultants are available 24/7. No matter what your fair work issue, we're here to help. Peace of mind is just a phone call away ...

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Why is the Employer Helpline Free?

Because we're confident you’ll find the Employsure experience so beneficial, we’re happy to offer this initial consultation free of charge.

This way, if you encounter more complex, ongoing issues with the Fair Work Act, you’ll already know that Employsure are the experts you can trust.

Besides, employees have unions, industry associations, the Fair Work Commission.

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Employsure takes the complexity out of workplace relations to help small business employers protect their business and their people.

I can't afford a big HR department or lots of lawyers in house. So I outsource it to Employsure."

David Koch, Pinstripe Media
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Client Testimonial | Pinstripe Media
Kochie: And now Employsure, not sure if you've heard of them. I don't mind saying I've used them for
years in my business. Because, being a small business, it scares the hell out of me, the employment workplace health and safety issues that we've got to deal with. And I can't afford a big HR department or lots of lawyers in house. So I outsource it to Employsure and basically I'm not not the only one Ed, you've got quite a few business owners like that.

Ed: We do, we do we've got about 27,000 small businesses that subscribe to our services across Australia and New Zealand.

Kochie: Because I came across you when you were a startup.

Ed: You did.

Kochie: Started, just started I loved the idea.

Ed: Yeah I'm grateful for the business, now it's been a crazy few years of growth and certainly like a lot of businesses we're getting our first days of a really big seismic challenge now as well, to handle that.
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Fridays With Ed Live Stream - 13th November 2020

In today's live stream, Ed talked about Fair hiring during JobMaker to avoid discrimination, Practical tips on HR and employee management, Business and Crisis Planning and chaos and Leadership and Management

Fridays With Ed | Leading Through COVID-19
Welcome. I hope that everyone is well. A little bit to catch up on today. I'm gonna start off with our usual why. And I'll explain why in a moment. And then we're gonna go through a few updates both in Australia and in New Zealand relating to workplace relations.

So our why is principally, as I've said before, to provide you guys with a resource to keep up to date with workplace relations issues, both through the crisis and beyond. We are here as long as we are helpful to you. So it's more and more the diehards that are watching it now. I think we've all moved out of crisis mode, and we're into a longer term routine of how we're performing.

That doesn't mean, though, that workplace relations issues have disappeared. Quite the opposite, actually. I think that there's gonna be an increase in workplace relations issues that you're gonna have to grapple with over the coming months. So here we are to help, if we can. And that also helps me in that it provides me with a good reason to stay on top of everything that's going on and a chance to connect to other business owners and people that are going through the challenges that I'm also going through myself at the moment. And we'll talk a little bit more about that at the end as well.

So what are we gonna talk about today? So some updates for you. I'm gonna talk a little bit about minimum wage increases this time next week. You've got seven days until that might be occurring for you in your award. I'm gonna talk a little bit about Aged Care whilst we're talking about wage increases and what's going on in the Aged Care world and whether there may be a wage increase there. Also, contractors. We spoke briefly about this last week. There's some more news about Deliveroo riders and so forth. And contractors may be relevant to you, and I just wanna give you an indication where I think things are going in that regard.

And then, finally, before we go on to the HR-y leadership stuff, health and safety in WA, we're gonna talk about, and then New Zealand updates as well. Auckland had a couple of cases that came out last night, and we're just waiting, actually. Probably as we speak, they're updating as to whether they're gonna go into some other form of lockdown again, so we're keeping an eye on that for any New Zealand businesses watching. And as Mary points out, it is Friday the 13th, a very spooky day for us all, but let's hope that this isn't a spooky session.

Right. Minimum wage awards. So as you will hopefully be aware of, this relates to your industry. Certain awards have had a clarification as to what happens to casuals and overtime, which is resulting in some pay rate changes that take place on November the 20th. What I would urge you all to do is, if you're a client of ours, give us a call, ask if this applies to you.

Either way, you can go onto our website, and you can get a minimum wage increase document there, e-guide there, that you can download, and it will give you a clear idea as to which awards are impacted, what the rates of increase in pay are, and when and how to introduce those changes. So please do go and have a look there. That's free. Even if you're not a client, go and have a look and download that. We'll put up the link on here as well so you can get it. We're only a week away from this, guys. So if you are at risk of having pay rate changes, make sure you get on top of it.

There was an interesting article yesterday in the press. I think Woolworths had their annual general meeting. And the chairman of Woolworths said, look, he takes responsibility for the underpayments that occurred. And it turned out to be very sizeable, we had about $500 million at latest count. But he did flag that, he said, "Look, as we've been saying all along, if Woolworths can't get it right, there must be a problem with the system as well." And this is exactly the kind of slip, trip, banana skin that could catch out the unsuspecting employer, so please do go and have a look.

Right. Next to that, I saw an article in the media yesterday about Aged Care, which has had a submission to the Fair Work Commission to following on from the Aged Care inquiry that's gone on. There's been a suggestion that there may be an increase in pay under their award.

The HSU, the relevant union, is seeking a $5 pay increase for carers, flagging that the inquiry basically said, "Look, it's very hard to get talent to work in the industry, and perhaps increasing pay might reduce some of the problems that they've seen in that industry." So that isn't a change yet. It's an application that's being made. Watch this space if you work in the Aged Care industry at all, although I'm sure you are watching it already.

Contractors. So we talked last week about the fact that what has happened in California, and you might say that's not got much to do with me, but I think it's always important if your business model relies on people being contractors, not employees, to consider what's going on at the world at large in issues like this.

So I met a guy this week who runs a really interesting business in the NDIS space, where he's providing carers to disabled people and the NDIS scheme. And typically, those carers are provided, in his relationship with them, on a contractor basis. But there are issues as to whether they are contractors or not. And cases like the one, or the legislation that went through in California last week that we briefly talked about on here may well end up being relevant to his business model, so it's important to look out for these.

But what we saw in California last week, as I explained, was almost a class of contractor that is closer to an employee has been established. So it was the result of some of these big tech companies like Uber campaigning pretty hard to avoid their drivers becoming seen as employees because of all the associated costs that go with that. And they were pushing hard for them to maintain their contractor status, but with some additional protections in there with regard to insurance and other things to ensure that where there might be vulnerable workers, that they weren't being taken advantage of.

So there's quite a lot of noise in the media this week following that, saying, "Well, what about people like food delivery drivers in Australia? They seem to be vulnerable workers." Quite often, immigrant workers, international students that have little optionality, often they've been caught here during the COVID crisis and have no form of income and so are vulnerable to things like exploitation.

And there seems to be a meshing of problems there. The issues really are, are people receiving wages below the minimum wage just by tweaking and pretending they're something other than an employee? And then, second of all, there's the safety issues that relate to that. So what we would say at Employsure is that there is a fairness issue. Are people being treated fairly in accordance with minimum wage, which is the very starting point for fairness? And second of all, are they being treated safely? So it's a fairness issue and a safety issue.

And there's no movement on this in Australia at this stage, but watch this space because I think, increasingly, as this gig economy continues to grow, and you have the competing strains of people wanting to work with greater flexibility in companies, seeing business opportunity in having a workforce that has greater flexibility versus the minimum protections that are needed to ensure fairness and safety.

And right now all it is a hot topic in Australia. It seems to be, given the California move, less likelihood that we're gonna move to a situation where delivery drivers, Uber drivers, and so forth are ending up being considered to be employees, but it may be that we find this middle ground in Australia where they get some protections to prevent them being taken under the bar on fairness and safety. So watch this space. It's a hot topic and will continue to be so.

It's a classic topic, to be honest. It was a hot topic before the crisis. The crisis came, and it kind of subdued it, just as underpayment of wages. And you remember there was a lot of talk about wage theft, a phrase I hate, as it applies to businesses, this idea that businesses were, in some way, they're trying to steal money from their staff by underpaying them. I think you'll see those things bubble to the surface again now that the crisis seems to be getting relatively well managed in our region. And we're all moving back to what we might term a new normal way of operation.

Those problems haven't gone away. We've just been preoccupied with crisis. And I think what you'll see is that those problems start coming back into the narrative again and start being a concern more and more for your businesses, things like contractor status, underpayment of wages, and so forth.

So that was a little bit on contract workers. There was a bit of noise this week about JobMaker, which got passed into law this week. There was a bit of toing and froing in government about that in that there was some debate as to whether extra protections were needed with JobMaker to prevent people getting sacked in order to be replaced with people who were getting a wage subsidy, which employers would therefore get.

And Josh Frydenberg made the point very well, which was that the existence of JobMaker doesn't mean you can start sacking people in order to re-hire people that do get JobMaker qualifications to help you with your wage bill. The Fair Work Act and all the laws relating to unfair dismissal and discrimination and general protections all still apply to all of your staff. There's no green light to get rid of people in order to get people on board who are subsidized.

So if anyone is thinking that, and I've said, you know, I know from the audience who watches this, seem a lot more knowledgeable in that that anyone would be rushing out to sack people to bring on JobMaker eligible people. I think it seems reasonably obvious that that could result in things like unfair dismissals. So do take care in that regard. And if you've got any questions about that, we'll see if we can answer them today.

So a little bit of JobMaker. WA Health and Safety was passed into law this week. The WA Work Health and Safety Bill passed into law this week. It won't actually come into effect until next year when the regulations are published. But basically, what it does is, after far too long, brings WA on to the same health and safety footing as the rest of the national framework. And includes in it, for example, an industrial manslaughter law, which means that people can be fined and imprisoned indeed for industrial manslaughter if that occurs in their workplaces.

So for those businesses in WA, it only really enhances the need to ensure that you are providing that fair but also safe workspace to your staff. And watch this space. We'll be communicating to our clients in WA about the need to ensure that you're keeping your safety systems up to scratch, and what this law means to you.

Finally, then, before we go on to HR and leadership stuff. So just quickly checking, has New Zealand announced anything about what's going on there. So they had I think three cases overnight. Yeah, it looks as though they're not gonna go into some form of lockdown, which is really quite pleasing. I was a bit worried. They had three cases overnight.

We got a message as an employer in Auckland, for example, overnight that said, "If your staff..." bear in mind, New Zealand doesn't have any social distancing or anything at the moment, they suddenly said to us at the end of the day yesterday, "If your staff can work from home, they must tomorrow." I mean, that sort of stuff...I get why they're doing it. The approach they're taking there is to completely eradicate the virus. And they've had great success in it.

But this idea that businesses can turn on a dime, we have 150 people in our office there, and the idea that, you know, you get a message at 5 p.m. saying, "No one should come into work tomorrow," and you have the ability to function and operate the next day with a notice like that, it's frustrating, to be honest. It's frustrating because we ended up turning around to our staff and saying, "I'm sorry, we need you to come in because we don''re not set up to work from home in a number of your roles tomorrow. We can't just yo-yo in and out of the office like that. It's not a practical way of working."

And then you obviously have to deal with the HR issues, which is people start to worry about it. If the government is saying, "You should work from home," but my employer is telling me to come in, what does that mean? All of these things that create problems for us. And we, like any other business, we trade on confidence and lack of friction and simplicity. And the more and more these things come into play, the more and more erratic the decision making, the more problematic it is for business. I think what we're all craving at the moment is the consistency and clarity and concise messaging, those three Cs of messaging, so that we can build our confidence and move forward.

You saw, frankly, just what a little dose, a little shot in the arm, forgive the pun, of news about a vaccination did to the financial markets this week, which all went through the roof as a result of people getting that sense of confidence back into the system. And we, at a micro level, as small business owners, need to have that confidence going forward. Confidence is obviously undermined by lots of short-term decision making. But it looks like New Zealand is fortunately taking a bit of a sensible approach up having told us all to go home for a day. It looks like they're saying that we can carry on operating over there, which I'm pleased to see.

So there's some updates a little bit on the HR leadership stuff. Two insights. So I spoke last week about how, at Employsure, we are using the running metaphor that you find in Jim Collins's book, "Good to Great," where he says that...he uses the example of this high school running team that does very well and starts winning championships.

What they seem to be doing differently is that they have stationed, one mile before the end of the race, they stationed someone to tell the runners that they've only got a mile to go. And then second to that, they measured the runners on how many people they passed between that marker and the end. And in doing that they created a KPI framework, essentially, that enabled people to really do their best work at the end of something, and really finish hard and finish strong.

I think if you watch...this is me giving away my interest in rugby, if you watch the difference between the All Blacks rugby team and the Wallabies rugby team, for anyone that still watches rugby, maybe it's just me, the All Blacks rugby team always finishes well. You watch them, they always look like they've got extra energy in the bank for that final 5 or 10 minutes. The Wallabies team, on the other hand, always looks like they're flagging at that stage. And if they are winning, they're just holding on by their fingernails. They don't cross the finish line at pace.

I'm trying to change the attitude of our business to make sure that we are now seeing that there is a finish line to this crisis and that we are running best at the end and we're finishing strong in that regard. So I've now got a countdown with the team that I'm doing until Christmas. I think it's 32 business days now until Christmas. And we're focusing hard on everything we're gonna achieve by then.

And then the idea being that once we refresh and come back in the New Year, we're in a new normal. We're back to the way business used to be, to some degree, a new version of it no doubt with some updates and changes and always the lurking risk that this virus hasn't disappeared. So it may reappear in some form or other. But we need to be able to deal with that and not constantly be in a crisis mindset because that's exhausting. I think it ties your team to be constantly thinking in crisis as though they're in a fight constantly, and we need to get out of that and into a more measured way of running the business and operating.

So we've got this message of, I sign off a message to the team every night, which I'm now signing off by saying, "We run best at the end," and reminding the team of that. I wanna count down to Christmas, really pushing hard to it. We will have these wobbles, like this one in New Zealand, but it doesn't change the fact that we're now really pushing hard into that final mile.

So I'd encourage you to be looking at some form of similar messaging so that we can close a chapter. Christmas seems to work pretty well. We're all pretty keen, I think, to close the chapter on 2020 and move on to a fresh mindset for 2021. And from a leadership perspective, I think that's a really healthy thing for you to be doing in any business now to be saying, "Look, let's collectively finish this crisis well." Close that chapter and move on to the next one for next year.

So those are the things that I'm focusing on in leadership at the moment. Another final thing, before we go onto some questions, I found it really interesting this week, actually. I sent out a message to our team know, we have this platform called Workplace, which is a bit like Slack or something that we use to communicate with each other. You guys might have something similar. You might use WhatsApp. I don't know what. You probably got some way of communicating through to all of your staff.

And I just put up a post on there that... It was sort of experimental, to some degree. I put up a post saying that I'd had a crappy day on Tuesday, and I felt pretty flat. And I explained to the team how I pick myself back up out of those situations and get back to trying to lead with some drive and energy, which for me is I do, first of all, sort of do a quick scan on myself and say, "Am I sleeping all right? Am I exercising? How is my diet?"

If all those three things are in check, I tend to be in reasonably good form. If all those three things are in check, and I'm still flat about something, the way in which I pick myself up out of that lull is to remind myself of my individual purpose, my why for myself, which is led by trying to look after and provide for my family.

And then second to that, my business or work purpose, which is I'm constantly, I derive energy from trying to challenge a status quo from not accepting that Employsure is just another advisor doing things the way they've always been done but trying to change it up, trying to think of ways that we can help businesses better. And I normally find some energy in reminding myself what my purpose is. I explain that to the business. I say, "Look, I'd love to hear from you guys as to how you deal with it."

I was blown away by the amount of responses. I think there were over 100 responses from our team of people saying, "This is what I do." And they were very thoughtful responses, very useful. I learned a lot from them. I'm only raising it now in the sense I think that there's a really good lesson to be learned there in leadership, which is just a sense of vulnerability. I think people like hearing that from their leaders, and they like being able to engage in a vulnerable place without being judged.

And I think there's a great power in being able to do that as a leader. If you can show vulnerability and invite people to be vulnerable, you'll end up breeding a positive culture in the business. It was just a really good example and insight of what happened to me this week, what I learned this week, and I thought you might be interested.

So that's it from me in terms of me waffling on. Just a couple of questions today. I'm just gonna go through these and see if I can answer them. So Kep says they saw one of our cars in Carindale in Brisbane this morning, Creek Rd., which is great to see. And then another one all the way down in Coogee/Clovelly. That's what Deb says. So, Deb, that is very close to me. I'm just in Bronte. I can tell you it wasn't me, though, driving the car this morning, but I do know there's two or three of our team that live around Coogee/Clovelly.

So, you know, just as an inside to this. So anyone that does spot the Employsure cars, we actually stole the idea for the cars from this real estate agency in the U.K. that did a really clever thing, I think, from a marketing perspective. They were kind of the first real estate agency to do the branded cars. And what they did really cleverly was that if you were a new employee, you've got a certain type of car. And then once you'd earned the right and you'd proven yourself in the business, you've got a slightly better car. And then there were sort of two or three layers of cars that you could get into.

And we have a similar thing for our team in that when you first start with us, you start in a white car. So if you see any Employsure white cars, it means the person has been with us for less than two years, typically. And then when they get to what we call an ambassador level, when you've been with us for two years, and you've been performing at a certain level, you get a better car, which is one of the black ones, and it's the slightly higher grade of car with more features and so on. And that's part of the reward for being there for two years. So if you see any black cars, they've been around with us for longer.

And then, finally, there is a category of car, which isn't branded, so you wouldn't see them around, for those who have been, even longer and typically performing been at even higher level, they can get into an unbranded version of the car. So we stole, with pride, that idea from this agency.

The other thing that we took from that agency is that, and we hope to increase this with time, is that they used the cars, and they frequently updated them with different artwork and news. There were different ways that they thought about having a fresh version of the artwork each year. And we'll start doing more of that. So each year they'll change slightly.

And we've found, actually, as Kep and Deb have pointed out, that it's been a fantastic marketing tool for us. And so many people see the cars around. And it really gives a sense of the breadth and scope of who we're helping. And of course the people are driving around in exactly the areas where our clients are, so it really provides a great opportunity to get our name out there.

Tony is asking a question, an employee question, talking about cars. If you've got a car allowance, does that get affected if you're on JobKeeper? So the wage condition in JobKeeper means that you've got to be paid your 1,500 bucks. I don't believe that the wage condition is satisfied by you getting paid a car allowance. I think that that's not considered wages for JobKeeper. Someone from Employsure, scream out if I've got that wrong, please, in response to Tony, but we'll double check that for you.

But if you have a contractual car allowance, you should get it whilst you're employed. The only possible change to that is if you are stood down and otherwise just getting JobKeeper, then depending on the terms of your contractual car allowance you may not be entitled to that when you are stood down. So, not a simple answer, unfortunately, to that one, Tony.

But the short answer is if you're working, and you're getting paid, you should get your salary for what you're working, even if that's then subsequently covered to the employer by JobKeeper. Your car allowance, right, it sounds that it's not your salary, so it should be separate to that. If you're not working, you've been stood down, if you're on JobKeeper, you still got to get the wage condition satisfied, but it may be that your car allowance doesn't carry through if you've been stood down. It depends on the contract.

Dylan says, "Redundancies are on the cards for us, and some will be over 35. I'm now worried about the second with this older worker thing. Am I still okay to go ahead?" In principle, there's no reason you can't carry on with redundancies, Dylan. The over 35 thing really relates to this idea that you would be doing redundancies, a sort of sham redundancy, I suppose, in order to re-employ younger people who are being subsidized. So if you're doing that, I'd say put your brakes on. Let's talk about whether these are real redundancies or not.

But assuming you've got real redundancy situations, you're going through the correct processes, nothing has happened to change the law to suggest that you suddenly can't do that for people over 35. Just be very careful not to manufacture schemes. It means you're trying to get rid of one group of people just to get other people in, because they're conceptually cheaper because of the JobMaker subsidy.

Michael says, "I've got an avid COVID hoaxer on my staff but another who's super health conscious and trying to get us to abide by all of the rules. I'm worried about potential conflict and tension as we spend more time in the workplace. Any advice on tackling this?" Really, I wonder what makes a COVID hoaxer. Is the hoaxer on this sort of constantly sort of coughing and spluttering in order to wind other people out there? You saw all these awful situations at the start of the crisis where people were coughing in the face of public transport drivers and things like that, and you were getting arrested and fined for that. That seems to have gone away.

So the way in which I would suggest dealing with this is that you've got to operate not to your standard as to what you think is the right thing to do on how people should behave at work with regards to the COVID safe rules. But almost to the lowest common denominator, so what the most conscious person might do.

So to give you an idea of that, this problem that occurred in Auckland yesterday. Apparently, what happened was a staff member rang their manager and said, "I'm not feeling very well." And the manager said, "Come in anyway," rather than saying, you know, not in normal circumstances, someone not feeling very well might result in them coming into work. Indeed, we're not in normal circumstances. You've got to sort of heighten your level of sensitivity and say to that person, "Stay at home."

So in practice, what that means to you is having a very clear COVID safe plan, making sure it's communicated to all of your staff, and then consequently adhered to. So don't cut any corners on that, within some level of reasonableness. You know, for example, encouraging people to sanitize regularly, making sure the social distancing is adhered to in the workplace. You might encourage people to wear masks, depending on the nature of their job. All of these things that you would put into your COVID safe plan, and make sure that that is published and communicated clearly. Because the person that you are setting up your plan to operate to is the super health conscious one.

As to the COVID hoaxer, I'd just be making sure that whatever that is, if it is someone trying to stir up problems, that you're stamping it out quickly and even going through disciplinary issues if the person is really trying to agitate problems and so forth.

Tammy says, "With everything that's happened in Canberra this week, is an employer allowed to outright ban intimate relationships between employees? Does this infringe on their privacy and personal life?" Really interesting question, Tammy. This is such a topical and I think polarizing debate. On the one side of it, you'd say, "How dare you? I can have a personal relationship, and it's up to me as an adult to make sure I don't bring that into work." On the other side of the debate, you'd say, "Yes, but these are highly complex areas, particularly where you have imbalances in seniority in people, and it's rife for problems."

So I'll tell you what we do at Employsure, which I think is a happy medium between the two. So we don't have an outright ban on relationships. What we do have is a requirement that if people enter into relationships at work that we're made aware even on a private and confidential basis into our talent HR team so that we can assess any potential conflicts of interest.

So, for example, you know, you wouldn't want a situation where a manager is seeing a subordinate, but that manager has responsibility for choosing that person's pay and things like that. That's rife with problems and potential discrimination claims. So we make it a requirement through our employee handbook to make disclosure of that through confidential channels, you know, if you don't wanna put up on the pin board that you're having a relationship. And then we would provide training and guidance to the people in that relationship or maybe even move around reporting lines to avoid any potential conflicts like that. So that's one way of doing it.

Outright bans are a potential way of doing it. It is problematic, though, as you say, because, you know, there's technically no reason you can't have an outright ban other than that you might find that people are just...if you have a very authoritarian rule like that, that people might be less inclined to work with you. I'm just trying to think if there are any potential discrimination issues that might flow from having an outright ban. I don't think there are. I mean, you could potentially do it. It's pretty authoritarian and probably quite reflective of the culture that, like, say, might result in people not wanting to work there.

Whatever you do, be very careful with stuff that looks and sort of smells a bit gender-specific when you...I always remember, there was that David Jones case years ago. And then I think the same sort of thing happened at Channel 7, where a junior employee, who was female started seeing a male employee who's senior. And their relationship broke down, and then it ends up kind of the female started getting squeezed out of the business. You know, that's rife with discrimination issues, where there seems to be a tendency to look after the more senior person who happens to be a male in those circumstances and then so forth. So be very, very careful around situations like that.

Sharon. "If a permanent part-time employee under an award takes sick leave for two days, can the employer ask for a sick certificate, and does this need to be written into their contract?" Absolutely, you can. I'd recommend putting it in a policy. So we have, at Employsure, I've [inaudible 00:34:56] for years, is whether this is the right thing to do. But even on one day, we ask people to provide certification. And the reason [inaudible 00:35:04] is that it feels a bit like we don't trust people in that regard.

But in essence, what we said is, look, we're just gonna set the bar at its lowest level, and everyone has to follow it, and that's just the way we're gonna operate rather than having this situation where we raise the bar and then find that in any way it gets abused and it ends up inhibiting trust. So I don't know I've made the right decision there, but that's just a decision we made from day one. But you can certainly do it for two days. And I'd recommend having that in a handbook. Just double check whatever the relevant award is to see if there's any provisions around that in there.

Wayne. Good to hear from you, from Camp Goodenough. Ed and Duke. Duke is here. He's asleep under my desk, and also have littered around me a whole roll of chewed toilet roll, as you can see. So I'm at that stage with Duke at the moment. That wasn't me, by the way. That was Duke that did that. "Please advise. We have our first school camp returning this week, 20th...eight months with no income. Confidence is rising to be able to get back to what we love doing."

Great news, Wayne. You've been a long-term supporter of me in this livestream, so thank you for continuing to do that. Pleased to advise that you're getting going. I'm pleased to hear it, really pleased with that. Great stuff, Wayne.

Jill on behalf of a friend Joe. "Joe just got a new job, but the incumbent is refusing to leave the office and keeps threatening legal action." Joe has just got a new job, but the incumbent is refusing to leave the office. I mean, that's fundamentally, it's not Joe's problem. It's Joe's employer that needs to deal with that. I'm not sure what's happened with the ex-employee. It sounds like they were meant to have been sacked, but they're not going, but that's a problem for...Lee says, "Yeah, very funny." Sorry, Jill. You've got me. A beauty. It's a U.S. election joke. Yes, very good. Very good. I feel silly now. Well done, Jill.

Jill's had a client, let's see if I can...she says, "Many thanks, Ed, for continuing your livestreams for all of us here trying to make sense of the world. Have a great weekend." Thanks, Jill. I will go away and lick my wounds at not having picked up the U.S. election joke. And I appreciate the humor, Jill.

Have a good weekend, guys. I shall see you next week. Feel free to reach out to me and ask any questions that you have. Remember, our small business circle is there. I chip into that as well just to answer any questions on there, if you do wanna join up. Go and grab the e-guide if you're worried about what might be happening with minimum wages for you.

Oh, one more question. Craig. "What's Employsure's recommendation for those with long-term systematic casuals given the high court case? What about those who preferred to stay casual and declined permanency?" So, Craig, my recommendation is this has to be transparent in your advice to communication to any casuals that you have that might be affected by that in your business to say that you are waiting for the high court outcome. And at this time, that you're not going to be providing any benefits or back pay even in relation to that outcome.

You need to see what happens in the case. And essentially, put a go on pause, carry on treating them as though they are casuals, paying them in accordance with their casual rates without providing them with things like annual leave or paid sick leave and so forth at this time. And the same thing goes as to those who want to stay casual and declined permanency. I think we'll get some clarity out of the case around that. And we'll have to see what happens in the case. So watch this space for now, Craig.

Thank you very much, everyone. See you next week.

Fridays With Ed Live Stream - 6th November 2020

In today's live stream, Ed talked about the casual pay-rise, the latest minimum wage increase, Guiding a business through crisis and chaos and managing and motivating employees

Fridays With Ed | Leading Through COVID-19
Ed: ...on our Friday session with me. So we were just laughing here before we got going and saying that it is Fridays with me, not with Stu. I want to be very clear about that. I had a funny conversation with a couple of people here at work yesterday and we were musing about why people seem to have an interest in these session. And the two guys at work were both saying it's definitely Stu, I think he just...he adds an air of easy calm to these sessions and it's all about Stu. And I was obviously mightily irate with that. And I want to reinforce that this is called "Fridays with Ed," not with Stu. And so Stu can stay very much in that backing singer role, but I'm the Harry Styles of One Direction here. A bit of a pop culture reference.

But anyway, so aside from that slightly random intro, why are we doing this, a reminder of the why of these sessions. I I was just scribbling some notes to do this, I thought, "I wonder if it's boring to always start with why?" But I need to do it because it's...that's how I encourage myself to communicate and in turn, I suppose, by reference to you guys, as well. I always think that communication, you're only just making your point when you're sort of bored of saying it out loud.

So in terms of why we're here, we are here in the hope of helping you guys with updating you on workplace relations issues that might be happening across Australia and New Zealand. And workplace relations issues obviously spread into smaller business issues generally, and so hopefully there's a bit of a resource to you in that regard. And as I've said before, it also helps me [inaudible 00:01:50] speed on what's going on, but it reminds me that I'm not on an island here in trying to manage a business through this crisis.

In that regard, the session today is going to have four sections, which is going to talk about updates in Australia, a little bit on updates in New Zealand, an update that applies to both countries and the world really in terms of the question of contractors versus employees, and then finally just some of those HR and leadership type tips on a couple things that I've been looking at this week.

So Australia, no huge changes. I think probably what we're seeing in the businesses at large is a move back into the offices, people are getting more and more confident in Australia and in New Zealand to be back in offices. We've got increasing numbers of people in our workplaces. Even in Victoria and Melbourne we've been able to get people in this week.

Just to give you some sense of the basis for that. You'll see the narrative in Victoria remains if you can work from home, you must work from home. Now we interpret that as having a sense of reasonableness in it. We think that there are various reasonable reasons to say, "Actually, we want certain groups of our staff to come back in." First and foremost is their own health and well-being, and the need in their roles to work in a team or community. And related therefore to that is their performance in their roles.

And funny enough we saw...just in getting our Victorian team back in this particular department back this week we saw their productivity go up by about 50% to 60% just in two days. Which gives you a sense of just how much the lockdown in Victoria has been burdening people and suppressing things like their performance.

Now in a world where people are under fear, frankly, of having job instability, potentially losing work, we want to minimize that fear by helping them to be excellent at their work. And we think that it's reasonable therefore to get them back into the offices. I mentioned last week that we had the problem with the landlord seeming to say that we weren't allowed. And fortunately they backed down on that, so our office is back up and going, despite the race that sort of semi half stopped the nation on Tuesday, just chucking in an extra challenge to get the engine going in Victoria again.

So aside from that, I was lucky enough to be invited onto Channel 7's "Morning Show" yesterday morning to talk about casual employees. So a very nerve-racking process actually I had to go on, you know, on sort of morning sofas and try and look like you're totally at ease and comfortable sitting there whilst sweating profusely and being nervous about being on live TV. But it was a good experience. I was curiously sandwiched between a real-life Barbie who had had some 300 cosmetic surgeries, and then two stars from "Home and Away." So I don't think it merits getting into the viewership figures for those three segments, I suspect I didn't win on that regard. But casual employees may be interesting to us, but have nothing on the "Home and Away" team at least.

So what were they wanting to know about casual employees? A couple of things really. So there's...Christmas is a time that we often, particularly in retail and hospitality, see an increase in casual workers. And they were saying essentially, "Is there anything to watch out for as people get back, not to just employing people, but having to deal with some seasonal demand?" And the answer to it was, well, yes, there is actually because we've got some pending changes to a number of awards for casual workers in relation to overtime taking place towards the end of November. So our clients at Employsure, you'll be hearing about that directly from us. If you're not a client and you need help, keep an eye out on our website for resources and fact sheets about these changes on the 20th of November and if they're at all awards that apply to you.

Really interesting changes in some of the awards. It will basically mean that some casuals for overtime will end up getting about $6 an hour more than they were before. So somewhere in the region of over 20% pay increase, with respect to some of the hours that they work. So really watch out for that, guys, it's a really tricky issue. And you need to understand if that applies to you, that as you're coming into the Christmas season you might be employing more and more casuals, whether you're going to have problems with employing those casuals in terms of the cost of them in these difficult times.

So watch out for that, that was one issue that they were interested to talk about yesterday. One of the other issues was in relation to the long-term employment rights of casuals, "If you've been a casual for a period, do you get the right to become a permanent employee?" We've talked about that on here before, there is no right to become a permanent employee. A number of awards have trigger clauses that say you can convert, but there's no obligation.

So, but be aware of those sorts of things together with the decision that's currently going through the High Court about long-term casuals and holiday pay and other benefits. We're still waiting for that decision, there's no clarity on it yet. But I just wanted to flag that again as we go into the season and you do have your casuals. That was something that they didn't seem to be aware of on the show yesterday, so hopefully it's something that you're increasingly aware of now.

Talking of the absence of a decision on that casuals point and the need for one. I read a really good article, I love reading her stuff actually, in The Australian by a lady called Judith Sloan. And she has a very powerful voice for what you would say is the opinion of small business, I'd say, certainly when I read the articles. And I actually pinged her an e-mail just to say how much her work resonates with me. Sometimes, yeah, her opinions feel very much aligned to how I feel about industrial relations, which is what she writes about most of the time, and how it relates to employers, and particularly small business.

And she was talking about the problem with casuals, amongst other things, and saying that we've just had this period where we were promised so much change in industrial relations because this great committee was going to meet and talk about what was going on. And it was a union and employer group love-in and everyone was going to have a good chat and come up with great solutions. Now actually what's passed is that we were expecting to hear some form of draft bill as to what was going to happen out of that, and nothing has happened. I suspect Judith Sloan got there before I did in predicting that nothing would, but you'll have heard me banging on for weeks or months on here that I didn't think it would go anywhere.

She's says a couple of things that are really powerful, I think. She... First of all, she calls the whole thing a Zoom-fest, which I thought was quite an amusing term. And then she said that in essence the problem was that they went to groups of...both employer groups, but also unions. And she says that they elevated those groups to levels that were "neither defensible nor useful." That's her words, not mine. Given how unrepresentative of employers and employees those groups are, they're not the people that employ people, they're not the people that represent employees either. So they were asking groups of people that really didn't have a clue to come up with ideas. Not only do they not have a real finger on the pulse, they also speak in very polarized terms because they've got such diametrically opposite political views rather than approaching the middle ground, which is actually practically what employers and employees tend to think.

She also highlighted the work that apparently the government has spent huge sums of money on a big fancy consulting firm called the Boston Consulting Group to go and do an analysis on the enterprise agreement system. Which is just, again, a sort of mind-boggling waste of money when you see all this criticism that's going on at the moment through you saw the senior boss at the ATO getting a kicking and the head of the Australian Post getting a kicking, as well, for sort of frivolous spend in their organizations. And there's the Fair Work Commission in the midst of all of this commissioning things, commissioning very expensive consulting companies, to tell us what we already know, which is that enterprise bargaining is a naff resource that no one actually uses.

It's just it serves so little purpose to your average employer, particularly small business. If you are paying at or slightly above award, you're in reality not going to get into a position with an enterprise agreement that actually benefits you as an employer in any way. So I could have done that for a lot less than BCG, I reckon, but anyway.

So there's a bit on what's going on in Australia. In New Zealand there's quite an interesting thing for Aussie observers, as well. So they've got this thing called the Pay Equity Act coming in on the 7th of November, tomorrow. And what it doesn't do much new in the law over there, it just allows people to make pay equity claims more easily. But just to...I'm not quite sure whether they realize the can of worms that they've opened really in that regard. And it's not to say that I disagree with it.

And just a brief pressie on what pay equity is. So you might have heard of equal pay, which is the principle that men and women should be paid the same amount for substantially similar work. Pay equity is a sort of sub-branch of equal pay, which is that even if the jobs aren't the same, if they are of equal value, then men and women should be paid the same.

So classically in other countries where this has come about has been where you get things like government employees who have a sort of ranking and pay grading system. And you might get someone that, let's say, is doing some form of manual work to do with infrastructure, laying roads or something like that, who gets paid X, and then you get someone who works in something like a school canteen, a government school canteen, and gets paid Y. And the argument becomes let's compare those two roles. The role that typically has more females, the canteen role, versus the road-laying role. Why are we saying that that canteen role should get paid less? And they did go into a very complex analysis as the whether the jobs have enough of a similarity or equal value to justify the same pay.

Now in the UK there was a whole industry of this, there still is a whole industry of this, of lawyers getting paid millions and millions of pounds over there going and disputing these concepts of equal value. And I worry that in New Zealand that they've literally just cracked the seal on that industry. And what you're going to see sprouting out are huge volumes of claims over there of people alleging that job type A should be compared with job type B in order to work out whether they should have the same pay or not.

So watch this space. It's a... I sort of feel like any change in law that really just leads to loads of claims through which the only people that benefit are lawyers is probably not a great change of law. That's not to in any advocate that people shouldn't receive equal pay, but it's trying to find a way that just doesn't lead to huge volumes of claims that are highly complex, take huge volumes of time, and ultimately don't really benefit the end user, the employees. So watch this space in New Zealand.

The next one was this really important point about contractors. So if you've been reading the news at all in recent months or, frankly, even if you've not been reading the news, you've just been stuck at home using Deliveroo and so forth as much as I have, you're probably aware of the contractor versus employee issue that's going on in the gig economy, as it's called. And the issue there is this, is that Uber, Deliveroo, other gig economy businesses, marketplace businesses where they're matching tasks with labor, typically those businesses don't employ the labor that is being provided through their platform.

So if I go and get an Uber today, Uber says, "That's not my driver, it's someone who has chosen to offer their services through our platform." And they would argue that the reason it's definitely not their driver and therefore their employee is that they don't have control over that person, there's no mutuality of commitment to them that they will provide them with a certain number of hours or that that person has to do a certain number of hours. So they would say... Oh, and also that the person provides their own equipment, their car. They would say that all of those things go to the fact that that's not their employee.

Now it's obviously to their benefit, the person not being an employee, because they don't have to provide the car and have the cost associated with that. They don't have to pay wages in accordance with award, which might include, for example, paying them for fallow time, or waiting time, whilst they're waiting to get passengers. They don't have to provide them with the benefits employees get, sick leave, holiday pay, and so on. They don't have the insurances that go to employing someone, particularly in relation to workers' compensation, also covering insurances for their cars and things like that.

So they're putting the burden of a lot of those things onto the individual, that becomes a lot cheaper for them and frankly makes their business model functional. Remembering that most of these businesses at any scale are just not profitable businesses anyway. So Uber loses, I think, billions of dollars every quarter globally still even two years after it went under new management with a mission to become a profitable business.

So they...when it started to get challenged by various factions, and understandably so, there''s certainly what you don't want to see in any profession, is sham contracting where really all you're trying to do is avoid liabilities to people and to get them to do jobs on the cheap. And people started to allege that that's really what's going on in the gig economy and actually there's not that people are going into having flexible jobs and the ability to do some bit of Uber driving here or there, this sort of wonderful picture that gets painted of Uber driving, you know, "During the day I do this, and then I actually quite like going out, being an Uber driver at night, and it gives me a bit of extra pocket money," or something like that. They're saying, well, that...there may be some pinup examples of that, but the reality is different. And if you look at particularly in the delivery of food, it's often immigrant workers who are, when they're looked at on an hourly basis, not receiving minimum wage and are vulnerable to things like accidents without insurance and so on.

And that's really been underscored by...and highlighted by...I saw in the paper here that there have been a number of people that have died unfortunately whilst delivering food on bicycles and things like that. And then, of course, you get other issues, criminal behaviors in things like ride type business like Uber and so forth. I read a stat about Uber the other day that they were having, in the U.S. this is, about one allegation of rape in their vehicles every week, until the recent change in management.

So there's a huge volume of problems that occur and there's an increasing level of noise therefore that's saying, "Well, let's make these people employees and therefore make the businesses much more accountable to them, as well as ensuring that those employees are not in any way taken advantage of."

And the argument flows from that that basically the Ubers of the worlds say, "Well, we can't operate like that, we'll never be a sustainable business like that. And if you do that to us, then all of these people that do get this income and have the benefit of flexibilities and so on will lose out. And by the way, Mr. Public, you'll also not be able to get an Uber and all of the things that you find incredibly useful to you now will get taken away from you."

So anyway, that's a long run up into this issue that there have been various decisions around the world that have said, "Yes, they're employees," "No, they're not employees," and so on. Basically people are crying out for better consistency. And while ago over here in Aus there was some talk about saying, "Look, maybe they're not employees or contractors, let's put them in the middle of the two and create this new thing. We need to move with the times. The world is changing, people want some of the benefits and the flexibility, but we don't want to leave them open to abuse."

In California, just a couple of days ago, there was a victory for the tech companies. So what had happened is that they had put forward a bit of legislation which said, "Let's create this extra category of person, basically. We'll... As tech companies, we'll put away some money for things like insurances and medical insurance and other things in the U.S. We'll also guarantee that over a certain period they get at least X amount of money. But they're not employees in the truest sense as to some of the other facets of employment." And people had been waiting to see if that law was passed. President Trump was very anti the law, he's very...he was saying, "No." He took the side of the potential employee, if you like, to say, "No, there's too much risk of them being abused in that regard." But just in the last couple of days the law was passed in California to create this extra type of employment, or non-employment, whatever it is.

And it will be really interesting to see whether that's what other governments do, what they do over here in Australia, for example. There's a sort of...a growing tide around the world, including in Australia, a sort of anti-tech company tide, as to whether that's...people are really going to want to pass a law which is seen as kind of shoehorning into the middle of employment and contractor states is this extra thing just for the benefit of tech companies. You know, why are we creating new roles just to help tech companies out? They'd obviously say that "it benefits the people that advertise their services on our platforms." But that's a development that's quite interesting, "Is there going to be a new type of employee, or non-employee, in Australia and in New Zealand in due course?"

So that's a little bit about that. Then finally, the sort of...I call it the HR stuff, but because I'm a bit sheepish and call it leadership advice because I'm not sure...I don't feel like I'm necessarily in a position to start spouting that on the World Wide Web. But a couple of things this week. We work with as a business, it's really interesting, a business called the Business Benchmark Group down in Melbourne. And they do coaching and training basically to help people run successful businesses, so they align with us a lot. They don't do employment relations specifically, but they've got a great business. They're helping out huge volumes of businesses in being better. And that includes, if you ever have a look at their website, doing things like P&L checks and so on. This isn't a sponsored ad, by the way, I'm not getting any cash from them, from Stefan, down there at this stage. We'll have a word about that, Stefan.

No, all it is is me saying essentially a bit of a self-plug. Stefan, one of the things he does is he does podcasts with various business owners. And I did one with him the other day which I really enjoyed, actually. I had a conversation with him about Employsure, how we've grown, what the difficult things have been, what I think we've done well and not so well and so forth. And we're going to post it on our social channels, I think, over the coming days.

And talking of podcasts, I listened to really good ones this week that you might enjoy, as well. So this is one called the Founders Project, which is a lady called Alexa von Tobel, I think her name is, interviews various business owners again and, unlike Stefan interviewed me, the big American ones rather than just random English guys to answer questions. But of the people she got on that was the founder of a company called Slack, which you might have heard of, which is a kind of Facebook for work type app. And then what was really interesting about it compared to the second podcast I'll mention in a second is that it's clearly a very successful business, it's worth billions of dollars, blah, blah, blah, but the founder couldn' my view, couldn't for his life explain what it is that he did for a living. He was asked quite clearly, "What does Slack do?," and he just spouted off a load of Silicon Valley jargon about cross-value communication and other things like that that none of us understand what it means.

And it just reminded me that as a leader in our position as storytellers the most fundamental thing that we do is explain what on earth it is that we do. And second to that, why we do it. So they're both entwined, obviously. But if you can't explain what your business does... And I'm sure you've all had it where you go onto someone else's website and you just want to work out what service it is that they provide and you just can't, you can't work it out from what it says. And I've always been really keen, I'd be interested to hear if we get this wrong at Employsure, but really keen to make sure that Employsure is very, very simple in the messaging of what it is that we do. Why we do it is to help...we say, to help build better business, to help you guys, ultimately. But what it is that we do is really important to be able to explain that.

And the second podcast was on that "Masters of Scale" one that I sometimes refer to where they interviewed the guy that is currently the MD CEO of a business called H&R Block, which you've probably all seen, an accounting, global accounting, practice that you often see in shopping strip malls and so forth. And they... I just think they're a phenomenal business. It's the sort of thing we see a lot, but don't know much about. They've got a huge presence in the U.S. helping individuals and small businesses with their tax returns and associated bookkeeping services and so forth. And they're really quite an understated business, you don't hear a lot about them. But they, like I say, have a huge impact on business both particularly in the U.S., but a little bit over here, as well.

And if you listen to what the MD of that says what they do and how they do it and why they do it, it's really quite impressive. He's a very, very articulate guy and quite inspirational, I think, to use as leaders to help us understand the importance of being able to communicate the why, the how, but most importantly what it is that we do.

So that's, I suppose, really as much, rather than any advice this week, just a bit of a reading/listening list for people. Now over to my backing singer, Stewie. Sing us a song. What have you got for us?

Stu: I'm just being very calm here.

Ed: Yeah, you're very soothing.

Stu: Ed, hi. We've got a couple of comments to kick it off this week. We have from Karen, she says, "Morning, Ed. You do help immensely to our mental state, so thank you."

Ed: Thank you, Karen.

Stu: And Kim says, "I'm back this week, I missed you last week because I forgot about daylight saving for all our Southern friends, as some people have done previously, as well."

Ed: Yeah, I'm now able to explain, Kim, why there was only one listener not [inaudible 00:27:24], so thank you. So you and Karen, good to have you both back.

Stu: [inaudible 00:27:28], thank you. Ed, from Mark, a minimum wage question. "Just need to confirm because now I'm doubting myself. The awards covering my employees were all included in Group 1. There's nothing I need to do with this November increase?"

Ed: Mark, if you're a client of ours, give us a call and have a check. It depends on whether... Obviously it sounds like you are conscious of whether the award applies to you or not. But I would double-check it, that you've got a belt and brace set. So give us a call and we can have a talk with you about it specifically.

Stu: Ed, this one from Clare. She says, "How can they honestly be considering pay rises for anyone right now, let alone $6 an hour?"

Ed: It's amazing. So be careful not to be too literal with me on that, so that's just some positions under some awards will get up to $6 an hour. So it's not everyone is getting $6 an hour or anything like that, I wouldn't want that bit of news to catch...get any momentum. But it is a massive pay rise for some people under some awards, which is disappointing. I suppose you could live in New Zealand though where they're talking about a 20% pay rise across everyone in the midst of all this crisis. So be thankful for little things, that we're not over there getting hit with that.

Stu: Ed, a very interesting one from Robin. She says, or I'm assuming she says, "One of my employees has been sharing information on Facebook about the U.S. election being 'stolen.' Going back through her posts, she's also shared some pretty worrying conspiracy theories. This is her personal account, but it would pretty easy to track her profiles back to being one of my employees. I'm worried about the impact to our business reputation. Is there anything I can or should do?"

Ed: So be careful is the first point, Robin. You know, so remembering that sort of discrimination, I suppose, takes all forms. And there's a risk that you can assume, particularly in this election where there's such polarized opinions, that people either side of the debate are somehow wrong in what they're saying. And therefore jumping down on any of their views could result in some problem, particular when someone feels passionately about them, as this person clearly does if they're putting up these things.

So that doesn't mean that you're helpless though. What I'd recommend is you have a private conversation and say, "Look, your social media, first of all, is very accessible. That's a matter for you, generally. But to the extent that it's being done either on work time or might otherwise impact work, I need to ask you to take those things into consideration."

And then, I suppose, second to that, and this is sort of underpinning the house a bit. It's not going to help you with this immediate problem, but you need to check, Robin, whether you've got a good social media policy in place, particularly usage of it and how people represent themselves on it, relative to your business needs.

You might remember there was the reasonably high-profile case in Australia last year, I think it was, when that famous rugby player, Israel Folau, put various comments on his social media that related to his religious point of view. And there was a big debate about whether he was entitled to do so. It looked like his contract and any policies they had within the sporting body of the Australian rugby union didn't actually prevent him from doing that, from what it seemed. And therefore it was his own personal opinion on his own personal time and so forth.

So pulling back from that, trying to distill it into some practice advice for you. First things first, question whether these are really just personal opinions that go against your own. And if so, unfortunately there's not a lot you can do. If they go beyond personal opinions and they're somehow made in the voice of the business, you can deal with that. The first stage of which would be to have a conversation about taking them down or limiting access to social media profiles.

Then in the same point goes if there's personal time that's being use, you can't do a lot about it. But if it was being used on work time, you can make the point to them they shouldn't be doing that, potentially moving into disciplinary issues. But if you don't have clear policies around all these sorts of things, I'd recommend getting those in place, as well.

Stu: Ed, this one from Chris I think might have something to do with your mention of partitions at Employsure a few weeks ago. He says, "Do partitions between desks need to be any particular medical or scientific quality, or can I build them out of stuff I can get from Bunnings?"

Ed: I think a lot of people have built them from wood stuff from Bunnings. I think there's two things to say about this. We went through this, as well, in that we engage with two or three potential contractors to give us quotes and so on. And as part of those quotes they all offered different sizes of partitions. It would probably come as no surprise that the smaller ones were the less expensive and I was quite inclined to take those.

I got some pushback from the relevant team here though who said, as much as anything, it's not about whether there's some sort of technical requirement, you know, like the PPE face masks and things like that. You know, most of the face masks that you see around, by all accounts, are scientifically of little value. The medical grade ones people don't tend to wear, there's all sorts of fashion ones going on and so on. But what they do do, face masks or any old partition, is give a...first of all, a recognition of the need to maintain a level of social distancing. And second of all, they create an environment of understanding and, I suppose, accountability or sensitivity. And people are therefore more inclined to come and work in that environment.

So just the act of having some partition is better than none, but I'm not aware of there being any particular standard as to, you know, what the Plexiglas needs to be made of and so on. And I am aware of plenty of clients going and doing what you're suggesting doing. We probably would have done the same if I was practical in any way. But if I'd been making partitions here, they would be probably razor sharp on the edges and be more of a problem than a help.

Stu: Ed, this one from Karen, "How do I get more information about pay rises under the awards?"

Ed: Give us a call, Karen. Or we'll give you a call, one of the two.

Stu: And then from Mike, "What is the current status with the Workpac High Court appeal and casual holiday pay?"

Ed: So hi, Mike. As far as I'm aware, I'm not sure when it's due to sit, I'll maybe find that out this week to see, but it will be months rather than weeks before we get anything. Which is part of the reason this article, Judith Sloan, she was saying that it's a missed opportunity there. The top thing on the agenda of the Zoom-fest, as she liked to call it, should have been dealing with casual workers and understanding that, and that doesn't seem to have been addressed at all. Instead we're going to have to wait for the judicial system to work, which is quite a lengthy process.

Stu: Thank you. Ed, this one from Steven, "I have a casual employee of 10 years and they were eligible for JobKeeper. Though in September they needed to take some leave for their mental health. I couldn't give them paid leave, as they are a casual JobKeeper employee, so they resigned. They are now all better and want to come back to work. Can I rehire them and put them back on JobKeeper?"

Ed: Yeah. Actually, I mean what they should have done, which is..."should have" advice is not my juice, but is actually they could have gone off work on...sick without pay, but they would have got JobKeeper because they were JobKeeper-eligible and they would have carried on being your employee under the terms of JobKeeper for that. So there's a chance you can go back to the ATO and explain that and see whether that would mean they essentially could have continuous employment. Otherwise you'll need to have a look at the eligibility rules around people coming back to work that were otherwise laid off for a period. And for two reasons I can't tell you the answer to that. One, because I don't know off the top of my head. And even if I did, the eligibility of employees is something you should really ask your accountant.

Stu: This from Elise, "I'm in the fortunate position of being able to hire right now. I've had an applicant over 35 who genuinely isn't right for the job, but I'm now worried about discrimination because of the new rules. What should I do to cover myself?"

Ed: As you should do with any recruitment process. So first of all, great news that you're hiring, Elise. But when you're going through a recruitment process... I'll give you a sort of story tale I'm slightly embarrassed to have been involved in in part of my career. So when I was a barrister in the UK, I used to work on these cases where this guy had worked out how to make a living out of discrimination claims. And what he would do is this, is he would send in... He was of Indian descent, with various qualifications and so forth. And he would send in an application for a job based upon his real name with those qualifications in his CV. Then he would send in the same application with the same CV, but giving an Anglo-Saxons name and making the application to the job. And if he got any form of differential treatment, he would sue. And he was... I'll put it this way. He was doing so bloody well out of this that he was hiring pretty expensive barristers to go and argue the cases for him. And that's all he did for a living, was go around making those applications.

So yeah, what you learn from that is that you need to have objective processes behind your hiring practices. Which is very hard because in truth, particularly in small business, a lot of hiring goes on gut and instinct as to whether someone will work well with you and within your environment. But you should be keeping notes of interviews to say why you don't think someone is the preferred candidate or what their pros and cons are, obviously making sure those notes are not discriminatory themselves. But as long as you're going through that.

And I suppose the final thing is just to sort of up test, if you like. If you look yourself in the mirror and say that this person is genuinely not being...not selected on the basis of their age, then...and you've kept a good, thorough process and you can justify why the other person is better, then you should be fine.

Stu: Ed, this two-part question from Debbie. "Hi, Ed. If a casual is on JobKeeper and has taken ill with prenatal depression and will be off indefinitely, can we continue paying JobKeeper?," part one. And part two, "Can we...can an employee use personal leave for IVF treatment?"

Ed: So part one, a person is on JobKeeper and has gone off on a form of long-term absence. And yes, is still employed, by the sounds of it.

Stu: Casual.

Ed: They're casual, are they? So if... Well, if they're a JobKeeper-entitled casual, the way in which JobKeeper would work is that they're in essence entitled to be off and not accepting shifts during that period. So you would carry on employing them under JobKeeper in that regard.

Can someone use personal leave for IVF treatment? So the rule with regard to personal leave is that you're not fit to work. So it's not a very clear distinction. You often see where people try and use personal leave, say for example, for a dentist's appointment. I don't want to be flippant in equating the two. But if your personal leave isn't for things like a dentist appointment, your annual leave you can use for that. So the question is, "Is this person fit to work if they're going for what ultimately amounts to a treatment that is taken on their option?," then no, that doesn't...that's not sick leave. But if they want to take annual leave for it, they can if you'll agree. But if they had side effects to the treatment and weren't fit to work, then yes, that would be sick leave.

Stu: One more, Ed, from Sharon.

Ed: Yes, please.

Stu: She says, "I have a question about JobKeeper. We were accepted for the JobKeeper extension on the 21st of October. STP pay events were lodged on the 24th and the 26th of October, but the ATO hasn't yet matched them up for us to claim JobKeeper. Have you heard of anything like this? Is anyone else having this problem?"

Ed: I haven't heard of that, to be honest, Sharon. I'm sorry, I'd love to give you the comfort of... That doesn't mean there is a problem, but I haven't heard about that. It does sound a little bit like an accounting question to ask to your bookkeeper or accountant, as well.

Stu: And just to wrap it up for this week, Ed, a comment from Sam. "You guys could be like ABBA and have two singers."

Ed: What happened with Fleetwood Mac? They had a rift in there. We could be more like Fleetwood Mac and did something wrong.

Stu: If you wish.

Ed: I feel like one of them married the other one's wife or something, so let's not do that. That would be crazy, but yeah. Yeah. No, I don't... Yeah. The whole two lead singers is not what I'm after, I'm very much after the One Direction setup, yeah.

Stu: Okay. We'll talk about that.

Ed: Yeah. We'll take that as more my generation ABBA. Robbie Williams, that's who I'm going for.

Good, excellent. Well, thank you, guys. See you next week. Cheers.

Fridays With Ed Live Stream - 30th October 2020

In today's live stream, Ed talked about Handling your HR in the age of COVID, Managing a business through crisis, Leadership tips and insights.

Fridays With Ed | Leading Through COVID-19
I'm getting through. I'm doing it solo again today. Stewie no longer...well, he is my wingman but he's just not live with me today. But I am here answering any questions that you have during the course of the stream. But I'm gonna start with a couple of other things, a reminder of the why of this session, as we always do, just to really make sure that we follow the purpose of the session and understand what it's for. And I'm here to give you some insights and updates on all things workplace relations as they might affect you, as small business owners and managers. And things that are going on in that particular world. It helps me as well. It helps me keep up to date with things. I'm gonna go through a bit of an interesting challenge we've got at the moment, actually in Melbourne, with our office there. It maybe something that you guys are encountering as well. It'll be interested to hear your feedback.

And in doing that, what it does is, I suppose, keeps me understanding and connected to you guys and understanding what's happening in the world of small business as well and reminding me that I'm not alone through this crisis. We're all going through it. But I will also at the end of today's session, give you a bit of a sentence as to how I'm managing through the crisis in our business and some tips on HR leadership, I suppose, which might be useful to you.

So on that note, I'm gonna turn to a few updates. Talking of Melbourne initially. So great news that as you guys have started to come out of lockdown, a number of you may have not been on the stream last week with your AFL Grand Final public holiday. I said at the time, I'll say it again, I can't quite believe that you get a public holiday for that, but never mind. And so you may well be finding yourself back at work this week, which I hope is the case. And I hope that you have now found a way to approach your current form of normal. What I would say is that there's quite a bit of agitation in Melbourne and agitation tends to in my mind come from confusion, where there hasn't been clear, consistent and concise communication, those three C's again. You tend to get a bit of confusion which results in some agitation. So I'm certainly seeing quite a lot and I suspect you guys are in the media both formal and social media, about people saying that social distancing and the requirements on businesses post opening up in Melbourne are not being followed everywhere. Starting to see a bit of a worrying trend, for example, in restaurants where people are being called out for not following COVIDSafe Plans. That worries me in the sense I don't wanna see any business owners unfairly picked on during the crisis.

But I would say this, I'd say make sure that you've got your COVIDSafe Plans in place. We'll put up the link on here to the resources on Employsure's website with how to set up your COVIDSafe Plan and get that in place. It's been a while since we've been operating in Melbourne. So people could be forgiven for being a bit dusty in terms of what their obligations are in terms of COVIDSafe Plans. So let's make sure we get those in place, and we're operating properly. We've seen in New South Wales that the state government goes in and makes examples of businesses to try and really ram home to others that they need to be operating in a COVID safe way. And I don't wanna hear that any of you guys are getting whacked with any intervention or fines. The last thing we need at the moment while we're all on our knees anyway is to get another kick in the proverbials. So be careful. Get your COVIDSafe Plan in place.

The next thing I was going to update on is...almost, as the crisis sort of seems to settle a bit, the first thing that comes back into the media about business employers is wages. You may have seen today that there was an announcement that 7-Eleven owes some inordinate amount of money, I think 750 million in wages to their employees. There's also been a class action struck up in Queensland against a supermarket company called Drakes, which you may or may not know. You know my view on this. I'm pretty protective of employers on this question. I hate the idea of wage theft being banded around. Theft requires intention. I don't think that that's what occurs in most businesses. I think that there's confusion rather than intention. People have the right intent to actually pay the people the right amount, it's just bloody hard to work it out. That's why you see big businesses, not just 7-Eleven but businesses that you'd never think were big had the potential to underpay staff like the ABC, for example, that they were found to have underpaid staff significantly. These are big businesses getting it wrong. It's not part of their business model to try and cut a corner. And when you then get into the small business land, it's even more pronounced that people are just bloody confused.


I've heard recently, there's gonna be no such thing as a small business award. So we can't expect any real simplification of the award system anytime soon. It would have been fanciful to expect that anyway. But we've got what we've got, and you therefore need to be very, very careful about the way wages that you pay. I saw probably the most grating comment I saw in the media about this, and I guess that...probably a bit like me getting asked on some media, sometimes you get [inaudible 00:05:58] on because you say reasonably controversial things that people...either annoy people or they like. I saw an economist on the ABC website today, a lady called Alice Pennington, who described what's occurring amongst employers as systematic regime of wage theft, systematic regime of wage theft.
And that the problem was that the penalties are harsh enough to deter businesses from having in their business model, a desire to under pay staff. I mean, frankly, a ludicrous comment by someone that wouldn't have the first clue anyway, how an economist would understand what small businesses are doing day-to-day in terms of how they decide what to pay their staff and so forth is beyond me. But presumably, she's only been invited along to say controversial things on the ABC. What I definitely don't see is any systematic regime of wage theft, I see the most confusing wage system in the world and small businesses being the ones that are getting it in the neck for quite fairly and reasonably making errors in a bloody complex system.

So that's a bit from me on what's going on in the world of workplace relations. Not that much. That's the short answer. If you're in Melbourne, you'll be battling with trying to understand all the ins and outs of your obligations. I'll see if I can answer any of those if you've got any questions about whether you're allowed to be open and so on. The thing I was gonna mention in Melbourne for us is sort of somewhat amusing in a way that we are bringing our teams back into the office in Melbourne next week, and we had one other team pop in yesterday just to ensure that everything was ready to go and we were okay to get people back in. We believe that we're entitled to get people back in under the rules. So the rule at the moment in Melbourne is that if you can work from home, you should work from home. Our position with these teams is that we don't think they can work any longer at home. First and foremost, for mental health reasons. We don't think it's reasonable to continue to ask people to work in isolation at home when they're not optimally set up to perform in that environment. They're optimally set up by way of office space, by way of technology, and finally, they don't have the team support that they would have to collaborate and communicate in an office environment.

We can actively see the consequences of that environment not being right in the team performance. And my worry is, of course, that if team performance continues to go down in a particular state, and we need to look at recruiting extra headcount, I don't wanna be making decisions like okay, we'll do headcount in Sydney, but not in Melbourne because the Melbourne state government won't let us go into the office. So I believe that we're entitled to go to the office. And, funnily enough, the building manager in the building that we're in on Bourke Street, doesn't agree with us and tried to stop us from going into the office. So I thought there was something sort of amusing about all this that after it all...what we're running the risk of I think is people starting to get a bit police like in their tendencies and thinking that they have some authority or power to start stopping things like that when, first of all, they were wrong. But second of all, I don't see that it's their right anyway. We've been paying rent in this building to sit empty for months now. And the landlord should frankly be pretty pleased that we've been paying rent to them at all. And now even when we're allowed back in the manager is saying we're not. So I'd be interested to see if anyone else has had any frustrating problems like that in any of their environments.

So I'm gonna take bit of a swerve over the ditch to New Zealand here. A really quite interesting thing is happening in New Zealand today in that they have a cannabis referendum going on right now, in fact, in true form where people try and steal attention from this live stream. They were actually due to announce the results of the initial vote on their referendum at midday our time. I don't have any news up in front of me that can tell me the answer to that. If anyone from my team or anyone else has any feedback on whether you are now allowed to smoke weed in New Zealand or will soon be, let me know. It'll be interested to see whether that leads to an outflow of people from Australia to New Zealand. I know that the trend recently has been the other way. People are very worried about the economy in New Zealand and have been coming over here on mass for some years now. It'll be interesting to see if there's a swerve the other way.

Overall, in New Zealand, what I'm saying as a business really fascinatingly, I think, is that the numbers and metrics that we see is that their economy seems to have been hit harder than ours, notwithstanding their shorter, sharper lock downs, and the fact that COVID didn't take a hold in New Zealand in a way, even relative to how it's affected us let alone the rest of the world and what we're seeing in Europe and so on. There has certainly been a lot of kudos given to the leadership over there for the approach they took to protect their country. But equally in a country that's so impacted by tourism, they're now really struggling economically, I think, even worse than the positions that we're in over here in Australia. And the burden of that having just had their election is that they're now being told, employers are being told that they're gonna have to do a few things I've mentioned on here before.

First of all, minimum wage is gonna go up. I'm saying these things. I know the audience here is predominantly Aussie, sometimes Kiwi as well, given that we do business in New Zealand as well. They want to increase the minimum wage there again so that over the course of I think just 18 months, it will be, the minimum wage in New Zealand will have gone up by 20% to $20. Just imagine that in Australia, if someone came and say...we obviously have our minimum wage increases each year. We debate whether it should be in single digit percentages typically how close to CPI it should be. Imagine if your wages had gone up by 20% by requirement of the government in the last 18 months and that part of that, the final 10% of it was gonna be now when you're on your knees having just been shut down by that same government, some period. I suspect we might be a little bit frustrated, let's say.

The other thing they're looking at doing over there I've talked about here is doubling sick leave. I've urged them not to do it over there. I don't think that that's a solution, nor is it a real employee benefit. What you see is trends in workplaces that people basically just take as much sick leave as they're entitled to. You double sick leave, you're gonna end up with less productivity, again, at a time when the economy is faltering significantly anyway. Removing or reducing productivity doesn't seem like the right thing to do. And finally, they wanna add to their public holidays. I think they already have 12 public holidays in New Zealand so one a month, which even takes on Melbourne for your...the public holiday down there. I know that they're obviously gonna have a second odd public holiday this year in Melbourne, following AFL Grand Final day when the grand final wasn't even in your state. And then now you're gonna get the Melbourne Cup public holiday on Tuesday, which seems generous given that no one's actually even allowed to go to Flemington.

Anyway, in New Zealand they're talking about having 12 public holidays. Again, these things for small businesses, they're highly impactful. That's another day that you might not be able to get revenue or you might have the additional cost of paying time and a half or whatever it might be in terms of your staff wages. So they're big deals these things. It shows a bit about the intent of New Zealand. There doesn't seem like there's much desire for it to be driving a thriving economy. As I've mentioned on here before, I think probably the way New Zealand's going is to become something that resembles the sort of Norway of the South Pacific. Let's hope Australia doesn't follow for all of our sakes.

So let's go on to the final bit before I start answering some questions. So the final bit was that just something I've been through this week in terms of trying to lead and manage our team here. So I've been conscious for a while that one of the hardest things you can do, and I use the metaphor of doing some exercise with this or running a race, let's say, running a running race. One of the hardest things you can do in running a running race would be to do a race that you didn't know how long it was. We've probably all been for a jog at some stage and not knowing where the finish line is, or not knowing how long you've been going for and how long you've got left is a really hard way in which to do things. Certainly, it's very hard to perform optimally. You can end up trying to pace yourself to something that you don't know when it will finish. So you end up going too fast or too slow.

And one of the odd things about this crisis, continuing that metaphor is that it hasn't had a finish line. And if we thought early on that it did have a finish line, and we were all running furiously to that line, it then shifted significantly, leaving us to try and regather our thoughts and try and create a new pace that we could actually maintain for a longer period. And I've been worried for some time in managing our team that without being able to present them with a finishing line, there was always just the risk that people would just fatigue and start drifting off and not being able to carry on getting up each day. They'd get quite despondent, particularly, say, you're locked into a work from home environment, and you might have a propensity to be despondent anyway, you might suffer from mental health issues. And those that just don't know when this is going to end, we're more likely than others to suffer.

So I've been conscious for a while. I've been wanting to create and help my team understand what we're actually trying to get towards. So our mission at Emplysure through the crisis has been to achieve business success throughout the crisis and beyond. Now, when you don't know when the crisis finishes, it becomes harder and harder to fulfill that mission and to keep racing to it. So I was looking at the position in the various locations in which we operate last week, and with Melbourne being the kind of, I suppose, the most restrictive place, the place that was still deepest in the crisis, with the light at the end of the tunnel there I thought this is the perfect time to start to communicate to my staff where the finish line is in this crisis and start running towards that.

Now, I can't and I need to be quite open with our staff that I can't promise that that's where the finish line is. We could end up with third waves, more circumstances of lockdown, all of those things are very real. But I can put a best foot forward and say, "Look, subject to change. This is the finish line I'm now asking you to race to." I'll get to why this is relevant in a moment, all this finish line and running stuff. I should add that I'm a terrible runner. So it's not really a great metaphor for me. In my communication with staff and also both my senior exec level, but also to the business overall, I thought, "Okay, I'm gonna set this finish line." So, I have been doing a daily communication to all of our teams. We have about 900, 950 people. I've been communicating to each of them every single day. And I've said to them that that's now gone on for I think 160 business days. I've said, "Okay, I'm gonna communicate up until 200 days, and that 200 marker, unless the crisis changes direction in any significant way, is our finish line." That is where I'm asking you to work towards in this crisis. And then after that, it's the new normal. We're not in crisis anymore. Let's take the language of crisis out of our business. Because that's highly energy sapping, fast paced. It's not a normal level of momentum and speed in a business. I want people to get out of the crisis and get into a new level of normal thinking. So I said, "Look, 40 more business days, which roughly takes us to Christmas, and that's where I'm asking you to run to."

And I then also...we have at 8:30 every morning a meeting with our local board, the exec team, to work through our crisis management. I've said on here before that as the crisis has gone on, we've become better and better organized. We've become more and more on top of the crisis. Those meetings have got shorter and shorter. We've said, "Okay, from next week, we're not gonna hold that meeting anymore, but we're going to just reconvene it if there's any problems at any stage." So again, trying to take the business to a new normal and give them the sense that things are coming to an end.


Why is that important? So if you haven't bought why I've said it's important for people to understand what they're pacing themselves to, you might be more convinced by this. It's certainly not my thinking. I wouldn't suggest that I'm that good at thinking about leadership. In fact, it's just plagiarized or nabbed from one of the best business books I've read, and I'm sure a number of you guys have, which is Jim Collins' "Good to Great." And you might remember, if you have read it, he talks in there about this running concept and he uses this example of a high school, cross country running team that for forever in a day had been pretty mediocre. And then they started to get better and better. Eventually, they were winning state championships all the time and they were consistently better than their nearest rivals. And when they were asked why that was, what it is that they were doing better than anyone else...their pool of talent hadn't changed. It was just the way in which that talent was performing.
And the answer to that was quite simple that they had first of all created a very clear mission, a very clear why, which was that they wanted to be the best in the state. They had second to that created a very clear how, and this was the magic of it actually, is that their how was not just that, you know, how are you gonna become best in the state by winning races, they actually went into how they were gonna win the races. And specifically, they did something quite different. So most runners apparently are running to a consistent form of pacing, checking their time against certain checkpoints and things like that to try and understand how to run their race. This high school went for a very, very simple methodology, which was that they had their coach stand at the marker of the final mile. When you got to that marker, the coach will tell you how many people were ahead of you and your objective became to pass as many people as you could in that final mile.

The important thing there is that the KPI that they were using, passing people, moving up the ranks was the right KPI. The wrong KPI would have been actually how quickly can you do the next mile. Because how quickly you can do the next mile wasn't the determinant of success to their mission, being the best in the state. And by setting this challenge to each of the runners to say, "Okay, how many people can you pass in this last mile?" They were ruthlessly focused on this final mile. And they had this mantra which they said was, "We run fastest at the end." And it's a mantra that I'd nabbed and I'm using in the business now at Employsure. And they were very proud of the idea that they run the fastest at the end, so much so that they used to give out...I think they were like stickers or medals for every person that they passed in each race. So it became a collection item that the more of these stickers you had, the better you'd done.

It really resonated with me, that idea of having a very clear why, a very clear how but also really focusing in on that how to being very specific to what it is that you need to achieve. And then also, beyond that, having it work in a way where the team clearly knew where the finish line was. They knew it was a mile from that marker where they saw the coach, and they would run hard from that mile running fastest at the end. The effect was there or the outcomes were there in terms of them becoming best in the state.

So I've taken that concept and I'm trying to adopt it and adapt it for Employsure in saying right, "Okay, I've just announced that we're in the final mile. Now we need to run fastest at the end. How many people are you gonna pass on your way?" Now the people that you pass in different roles could mean different things. You might have some internal competition against the person that sits next to you about how good the advice you're giving is, or whatever it might be. It's in our case, it's not that we don't look at external competitors in that way. We wouldn't spend our time focusing on trying to get past them in terms of size, or whatever else it might be. That's just not the culture that we have. But we'll focus on healthy competition between ourselves to get to this finish line for our sales reps, for example, that might mean doing more business than their nearest rival in the team did or something like that.

So that's just a little bit about how we're managing through the crisis, trying to run fastest at the end. I thought it might be useful because I get asked quite a bit that...around things like JobKeeper where people are finding that they're getting HR issues come out of that where people seem to be sort of reluctant to come back into work, or enjoying being paid to sit at home, those sorts of things. How do you create an environment that is high performance and people are keen to work with the business to come out of the crisis successfully? The answer, like anything, starts with a clear, consistent, and concise communication plan. Then second to that making sure that you are very clear on what your mission is. I said for Employsure business success throughout the crisis and beyond, then you're very clear on how you're gonna achieve that mission, and we've just changed that how to setting this finish line and running fastest to the end.

So guys, there's a bit from me. You may or may not find that useful. If you didn't, don't worry about it. Just put it at the back of your mind. If you did, then great. So I'm just looking to see if we have any questions. Yeah, we do. And we've got a couple of things to update on. Interestingly, in New Zealand more people have said no to the cannabis than yes, 53%. They thought given that there was this big swing to the left in the election that that would have resulted in a much higher vote for people saying yes, but very interesting. It seems that New Zealand remains a little bit conservative, even through all this.

And so some questions. Angela says, "Hey, Ed, I'm a Melbourne business owner finally allowed to open my doors. I'm trying to do my best around contact tracing. We've had some customers already refuse. Any advice on this, or from other business owners in the group?" Really interesting. So when you say contact tracing, what I believe you're doing is asking for details. You'll hear some people refuse on the basis of privacy. One of the big things, for example, with these apps that have proliferated as a result of this is that there's a very big concern about how the data that's being submitted to these apps where you're scanning QR codes and things like that. So you will potentially get people refusing.

Now, my understanding of your COVIDSafe Plan is that you've got to have a plan in place and you've got to use reasonable endeavours to put it in place and as long as you are trying, I don't believe that you are then responsible for the fact that if someone says no. If you wanted to be an absolute stickler to it, you could have a plan which said, unless people agree to it, then I won't allow them in. And that may be one way to go. But let's be realistic in the context of businesses that are trying to get back up. That's a quite a hostile business pitch at the start. So try and be persuasive in the way you do it. Just say, "Look, for you and fellow customers, I can assure you that this data is being used only for the purposes of contact tracing. It won't be shared with any third parties," and so on. If you're very clear about that, you start to negate the need for people to say no. But you might get some sticklers and you've got to make a business decision whether your COVIDSafe Plan says in which case, I won't serve them, or I will. And it's up to them to decide whether they wanna share data or not.

Elena says, "Hello, Ed," Hello Elena. "I'll be looking to do some hiring. I want to access the JobMaker scheme. Any thoughts on the risk of discrimination If I only look for candidates under 35? Can I specifically advertise a role for under 35s only?" There's undoubtedly a risk of discrimination there, Elena. And it's not just a sort of, you know, employment relations expert hypothetical one. I'm over 35. If I'm over 35, and I see a job ad that says only under 35s apply, and I'm in desperate need of work, I may well be a bit pissed off about that, and consequently, look to challenge it. So the way in which I'd recommend and we as a company are recommending our clients do is to not put things like that in an ad. That is prima facia discriminatory. But to recruit people based upon your interviews with them and who's best for the job. If they happen to be JobMaker eligible, then you'll get the benefit of the subsidy but tread very carefully in trying to go like an arrow to find people who are JobMaker eligible. Remember that to be on the JobMaker scheme, they've also got to have been getting government support in the period prior to coming and working for you. I'm gonna really really be fascinated to see is that a real situation that's gonna really impact and help businesses. But you're looking for quite a narrow group of people where, someone who needs a job, has been on government support, and happens to fit your needs and also is under 35. So it'll be interesting to see whether JobMaker really actually does much.

So Ian, hello Ian. He says, "We're a cafe in Melbourne and grateful to be able to start trading again." I'm chuffed for you as well Ian. "We had a long-term casual who has already been unavailable for three shifts we've offered. She's on JobKeeper scheme, paid anyway but seems like she's just avoiding work. Am I able to remove her from JobKeeper if this continues?" You are potentially but you should be going through a disciplinary process potentially. You've got to take one of two routes with this. You have said that she is a long-term regular systematic casual. She is, contrary to that and the characteristics that would make her a long- term regular systematic casual, she's saying no to shifts. So you can do one or two things, you can either speak to her informally and say, "Look, we seem to be on different pages here. We applied for JobKeeper on the basis that your are regular and systematic, which means that by its very nature that when we offer shifts up, you do them. And if you're saying no to it, it must be that you're not regular and systematic. In which case we shouldn't be, quite probably, shouldn't be applying for JobKeeper for you." And if that doesn't shake a tree and get her back in, then yes, you could go to explain to the ATO that you shouldn't be applying for that person that you misunderstood the employment relationship.

The other way of doing it if this person is regular and systematic is pick up the phone to them and say, "Look, because you're regular and systematic, we need to speak to you about refusing to come in and do these shifts without reasonable excuse. Please come in. We wanna consider some form of disciplinary." So you can go down either one of those paths. But the primary aim, of course, is to shake the tree presumably to get the person back to work if you think they're any good, and you want them to carry on working for you.

So Susan says, "We have staff working from home. One recently sprained her ankle and is sending us the invoice for physio treatment. Are we obliged to pay any all of her costs? And who has the burden of proof that she actually sprained it while working?" So the answer to that is no, I wouldn't be paying her physio treatment. If she's saying that she sprained her ankle in the ordinary course of her duties, then she should be making a workers' compensation claim. So I don't think that's a reasonable approach. You may well ask her in advance of making that point to her why it is that she thinks you're responsible. What was she doing when she sprained her ankle and so forth? But you shouldn't be paying a physio until it's suggested that there's a workers' compensation claim.

And in terms of burden of proof specifically, Susan, in essence what you'll find is that it's not that structured with the insurers. Technically, the burden would be on your employees, Susan, to prove it. But the insurer quite often will prima facia accept the claim until they decide that they can't or something like that. So let's see whether it actually goes towards a claim. But you might find that the insurer accepts it quite readily. Depending on your size, you shouldn't worry too much about workers' comp, because you may well not be what they call claims affected. You need to be above a certain size of business to be claims affected, which basically means if you have a claim your premium goes up next year. So typically, smaller businesses won't be claims affected. So it shouldn't be too worrisome for you if they do go make a claim.

Greg says, "Hello, Ed. Can I re-employ former staff as freelancers or independent contractors. I need some help for a business pillar but don't want to commit to long-term employment to people in such a volatile environment." You can, Greg, as long as what you're doing...I mean, you could also employ them as casuals, by the way. There'll be a premium on the casual hourly rate compared to what you might have otherwise paid to them. And you should do the engagement as a casual if what you already need is an employee. So what I always say on this, if it looks like a duck and quacks like a duck, it's a duck. So if you've got someone that you need to come in and do what they were previously doing for you, which they were an employee in doing, then they're probably an employee still. So just calling them a freelancer or an independent contractor doesn't change that. And you would have the associated risks of sham contracting if you started engaging people on the basis that they were not employees, but really they were just doing the same thing they were when they were employees.

What's the difference? Ultimately, it's control. So if you were basically saying to these people, "I need this set of tasks done, you do it on your own time, at your own expense, in your own way. Just deliver me the results." Then that's someone that looks like an independent contractor. Not knowning specifically your business, Greg, it's hard for me to make that assessment. But I would say your litmus test would be if they're gonna do the same thing they were and they're employees, then you're better off trying to get them back in as casuals, rather than on an independent contractor basis to avoid sham contracting.

So, Janine, "Do casuals have access to unfair dismissal? I'm pretty sure they don't. But who knows anymore? I need to stop offering work to someone but don't want to land myself in court." Really good question, Janine. You are right, in principle, but the curveball that's in there...I think we're doing some stuff on one of the channel seven shows next week about this is is this concept of the regular and systematic casual, someone that you've employed for casual for so long and on such a regular terms that in essence, they turn around, and say, "I'm not really a casual. I know that's what you call me and you pay a premium for it, but I'm not really a casual. And I get all of the rights that you would actually normally associate with a permanent employee, which includes unfair dismissal. And in that case, I'm gonna sue you if you just stop my shift."

So there is a risk depending on how long someone has worked for you for, what the level of consistency in their hours and so forth was. So tread carefully. If you're worried at all, I suspect it's because this person's been with you for a while and worked pretty regularly and you might need some advice on it to avoid going to court. Because, remember, guys, when you're getting into something like an unfair dismissal claim, it's the exact thing that you do not want at the moment. So to defend an unfair dismissal claim, you can do it on your own. You don't have to hire a lawyer, or Employsure or anyone else. But you do run the risk of losing it. And then if you go and hire a lawyer, typically, you'll end up spending a fortune on it. And this is money that none of us have to spend at the moment. We want to make sure that we're running tight ships. And the best way to do that is to avoid hitting the iceberg in the first place.

So Karen is gonna wrap us up. She says, "Thanks to the weekly updates. Watching live, which I don't often get to do. I think you said the other week that there are perhaps not as many watching live, but I'm sure there are many of us who love to catch up on your updates at a later time. So keep up the good work." Still good numbers of people watching, I'm relieved to say. Just my self esteem as much as anything. But no, we still got a really good group of people watching and a few thousand are watching each week. I think the reality is we are now setting this new finish line and we're running towards it. And crisis isn't perhaps the right way to describe what we are now in and I would encourage everyone to move out of that mindset, because we at some stage have got to acknowledge that this is gonna be here for a while, this new state of affairs, and we need to run that race, rather than a crisis race which will lead to us all flagging too quickly.

So from there, I'm going to say thank you and have a good weekend. Those in New Zealand are not going to have a cannabis fueled weekend by the looks of it. So anyway, we'll see what happens over there. But thank you for your support, guys, and see you next week. Cheers.

Fridays With Ed Live Stream - 23rd October 2020

In today's live stream, Ed talked about practical tips on HR and employee management, Business and Crisis Planning and Leadership and Management.

Fridays With Ed | Leading Through COVID-19
Ed: Hi everyone, Ed here. I'm coming to you for our usual Friday slot. It'd be interesting search to see who's around. Victorians bludging off on another public holiday pretending that there is an AFL final that they should all be getting ready for it. So now I understand the tradition down there, but a slightly odd one that you get a day off for a game of sport, but maybe I'm just jealous. So without alienating any more of you, I will get on with what we're actually here for. A quick reminder of why we do this. So just to provide you a resource by which you can get any information that you might need managing your business on Workplace Relations issues. And second to that, selfishly, it provides me with a reminder as to what our purpose is here that we're all about helping to build better business. And we do that by helping small businesses, particularly with their workplace relations, and health and safety issues. And I find that this reminds me that in the midst of everything that's going on in the world right now, that what we're doing is hopefully a valuable thing and something that we are helping people with.

So talking about valuable things and purpose. I was fortunate enough this morning to be invited to a charitable event called CEO Dare to Cure, which is basically a range of different MDs, CEOs, directors of businesses taking up challenges, dares in order to support the Children's Cancer charity and to hopefully do some good things for them. And it was a fascinating event, it was brilliantly run. First of all, I just give a shout out to Cameron Bayfield the CEO there who really did put on a fantastic event in trying circumstances. When he was setting it all up, obviously, he had no idea whether it was actually going to be permitted to go ahead, but it was quite nice to be out and about this morning here in Sydney at that event. And it was all for a very good cause and the stories of which really drove home when you're there, very saddening stories about young children with cancer and it was very impressive to see so many people rallying around that cause and doing good things for them. Amongst which were dares like CEOs being put in a bed of snakes and walking across hot coals and doing fitness challenges and all sorts was going on. It was pretty fun seeing that.
It gave me a chance to see a few faces that I hadn't seen for a while. I saw our first ever IT provider, for example, a chap called Scott Crawford, a good guy. He used to help us with our IT when we first started up. Michael Murphy, who we did a dare together, he's got a very impressive insurance business. And I had a good chance to catch up with others, like Nicholas from Strategic Wealth Management who currently...he runs an's a wealth management business, and currently refers a number of clients to us. I had all these great run-ins with people there, but none more so then, Kelly, who was running the event with her Flying Ruby event. I felt famous for a moment, which was great. Kelly came over and said that...she said, "You're the Jobkeeper guy," which is not a label I really want to go to my grave with, to be honest. I hope at some stage in my life, I do something more than being the Jobkeeper guy. But Kelly would be watching these streams. I suspect she's still packing up the event. I won't be watching it today. But I've been watching these streams and found them somewhat helpful. And that gave me a bit of a spring in my step.

And great to see Kelly in a couple of regards. One as an events business, she's been doing it tough. You know, there's probably no businesses that have been doing it tougher than events businesses have been just shut down in just about every possible way in what they do. So great see her up and running in New South Wales here with a really fantastically put on event. I was blown away by it. I don't think I've ever seen anything quite like it in terms of the professionalism and organization of it all and Flying Ruby events were are at the heart of that. And second of all, just to have a chat with someone who's going through that and now coming out the other side. And it was inspiring just to hear her resilience and will, which I'll talk about towards the end of the session today. A good reminder to me about the relatively fortunate situation that we've had at Employsure in that we've been busy trying to help people. But also a reminder to me of the importance of having a purpose in what you do.

So it gave me a chance to pause, I feel a little bit reinvigorated. That might was a very early morning, so it might be the extra coffee that I've had. But we'll see how we go through the rest of this session. But I'm gonna get back now to my day job, the purpose of this, which is like I say to provide you with a resource with regards to workplace relations in your business. And I'm gonna start with a bit of an update as to things that are going on in crisis management that might be relevant to you. Then gonna talk a bit about workplace reform, here in Australia. And then I'm gonna finish with some HR or maybe leadership tips, things that I've been reminded of today actually.

You can probably see talking about being reinvigorated, you can probably see outside my door there's quite a bit more movement today than there has been in recent months. And we're doing this thing in the workplace where we bring back different teams each day. So some of our teams have been in the office now for a while, others are still working from home. We're still socially distanced in the office here in Sydney. Our Melbourne office right now is closed. I'll talk about that in a moment. But we've got one of our advice teams, the guys...a number of you that are watching that are clients might be calling and speaking to day-to-day. It's been a great buzz this morning, just having my door open here and listening to the advice that they're giving out to small business on a whole range of things, but really great to have them back in the office.

So what about the update, then, talking of closed Melbourne offices? So this sounds like it's gonna be another update from Daniel Andrews this weekend, possibly accelerating the move out a lockdown. He's taken quite a lot of flak this week from business about how cautious he's being. I think it's fair to say that a lot of that's pretty well deserved. You know, if you're in a place where one person a day is getting sick from this, the idea that there should be any form of lockdown going on seems frankly ridiculous, to be honest. I just I think we've all become so mired in data in this crisis, that sometimes it just...people are petrified of things because of numbers. I suspect there's one person a day getting some totally scary disease in Victoria or New South Wales, whatever it might be. But we don't shut the economy for whatever that is, because we don't hear about it. We've got all this data and information, yet so panicked by it. I'm actually trying to sort of discipline myself to stop looking at...there's website called, which I look at far too much. But I'm trying to stop looking at it at the moment because I'm not a data scientist and I've got no context to look at these things.

So I hope that Daniel Andrews has got good data scientists around him though and he is getting some context to say that if you're getting one infection a day, you can probably start opening up the economy and allowing people to earn their livelihoods and protect their jobs, albeit that he seems a bit uptight about that when he's challenged on it by the federal government. So let's watch the space. For what it's worth, the beginning of November, I think it's the second that Monday, we are planning on opening our office in Melbourne. You might have a similar date if you're in Victoria to do that. We believe that we are entitled to bring parts of our workforce back into the business on that date, on the basis that it's reasonable to do so. And that's a step that we're gonna be taking unless the position changes. So if you're an office business and wondering if and when you can open, that's whenwe'll be doing it and you may be looking at the same.

So New South Wales, couple of tweaks to the way we're operating here. If you're in the hospitality industry, you probably know that group bookings have gone up to 30 from 10. If you're a gym business, you don't need to have a COVID safe office at present unless there's over 30 people. So quite niche changes. I see them all as progress though. My hope is that quite soon we'll start to be looking towards reduced concepts of social distancing in places like offices. We have on at least one floor in our office, we've put up, and up in Brisbane as well, we've put up plastic screens between each desk so we can actually bring more people into the office. A frustration I have to say. I remember back to when people first started looking at coming back into the office back in what? Probably was May or something like that. And I remember thinking I hope small businesses are not gonna be ending up having spent huge sums of money on plastic screens and things like that that have probably got fairly dubious epidemiological benefits. I'm one of those businesses. I think we've spent about $50,000 on plastic screens. It's just a hideous thought to me that there are businesses around the country having to spent money on these things that really aren't doing much.

The idea that having a plastic screen between two people that sit next to each other for nine hours on a day just seems...the likelihood of that having some scientific benefit seems pretty slim to none to me, but you're having to pay out money on it. But there we go. Worrying is not thinking. Bitching and moaning isn't helpful, and he didn't tune in to hear that. So that's the progress in New South Wales. New Zealand, Jacinda just got re-elected. We did a bit of media overnight in New Zealand, where we've got business just talking about the Workplace Relations changes that seem imminent over there. So, Jacinda, as a part of her election promises, said that they were gonna double sick pay from five days to 10 days, i.e. to match Australia. And what we were saying overnight is be very careful because Australia has incredibly generous sick pay.

I've heard through questions on here and through speaking to clients that sick leave and absence is the bane of a lot of employers. It's been troublesome during JobKeeper, people pulling sickies, and getting JobKeeper money that people feel frustrated that they can't challenge. Doctors signing off on sick certificates without apparently much thought to the consequence, just signing someone off who might be sick and all that sort of stuff.

The reality is in Australia, we have a very, very high degree of sickness and absence compared to other OECD countries, particularly the UK. We have about double the amount of sick leave in Australia that they have in the UK. Quelle surprise, we have about double the amount of sick leave entitlement here as we do in the UK. So the way in which this tends to work in my view is that the higher the entitlement, the more people are gonna be inclined to use it. So in saying in New Zealand that they're gonna double sick pay, my worry is that where businesses should be looking to engage their staff and increase productivity at the moment, they're going to maybe get happier staff through having higher sick leave. But it doesn't increase engagement or productivity, it just is likely to lead to more people pulling sickies, frankly.

And to that as well, there's talk over there of adding a public holiday. I would say this...and I made the opening point about Victoria, public holidays to business owners, as you guys all know, are very, very disruptive, regardless if you own a business in things like the hospitality sector and having to pay penalty rates and things is very disruptive. I know a number of hospitality businesses that just closed down on public holidays, despite the fact they might have demand because they just can't make money out of it. But even for businesses that are not in that sector, it is very difficult to manage your way through in Australia, lots of different public holidays at different times. This is kind of...these last few weeks have been a bit of a minefield of that. And it disrupts your ability to get momentum up and to do business and bring in revenue and employ people, ultimately, which is what we're all trying to do.

And finally, just talking about increasing wages, notwithstanding very high minimum wages in New Zealand. So some quite, you know, no great surprises in that she's a left-leaning Prime Minister. But I raised them here because I think they're relevant to Australia as well, because it just gives you a bit of a sense as to what can happen, that even in the face of a crisis where people are losing their jobs all over the place, Jacinda is still going ahead with quite socialist views as to how she thinks employment will increase by adding to the benefits and the cost to employers. I don't see that person as an employer. I think if it costs more to employ people, you're not likely to employ more of them. But it seems that notwithstanding that, that's what's going on in New Zealand.

So second thing reform. So lots more talk still in...I suspect it's gonna get to the stage where I'm probably the only person interested in this. And until the talk turns into action, you might not be too fussed. But talk about reform in the IR space in Australia. There was a drum being banged by us amongst other people saying let's get a Small Business Award in place to help small businesses to employ people to simplify wage rates and so on. That's been said to be something that they're not going to consider, which is a shame. They have said that they're gonna look at simplifying the hospitality award. Good news, the hospitality sector employs so many people, bad news in that, that's just one of 110 really confusing awards. Not everyone works in hospitality, not every employer is a hospitality business. So it would be useful to have some more consistency and simplicity across industries but it seems they're just gonna target that one.

Then finally a bit oddly, they say they're gonna invest more in the regulators to help compliance with wages, which seems a bit odd. They've got this obsession with this idea that somehow technology is gonna solve the confusion of the award system. I had a really good chat today with a chap called Ross Heron, who runs a really cool business called Payroll HQ. And he runs the payroll for all sizes of companies. And I said to him, I said, "Am I missing the point here, but I don't think there's any technology out there that helps you answer how much you're meant to pay someone." Everything relies on the human input of understanding all the variables that exist under an award, you know, how old are you? What job do you do? What time of day do you do it? Do you work on public holidays? Do you work on weekends? All of these other inputs, technology doesn't solve. Technology has never been a solution to those questions. All it does is...the fairly rude phrase is with technology is that if you put shit in, you get shit out. Because ultimately, technology just computes things that are subject to your own human error and to what your inputs are. So I think the government seems somewhat naive, to be honest, in how the modern awards system works, and how technology can help improve compliance. I think actually you're only gonna get better compliance by simplifying the award system.

So there's a bit of an update on things and a bit of an update on reform. And before we go to any questions, I'm just gonna talk a little bit about...I suppose it's just seeing that event this morning that has drawn me to it, including having a chat with Kelly from Flying Ruby. I think that we're all at this interesting stage both personally and any of you that have got management teams if you like in your business where people might be flagging now, they might be knackered, frankly, from the last few months. You only need to sort of think about what it was like in March to realize just how long this year has been. We're only six and a bit months on from that, but it feels like an age. And we'll all have gone through this high-intensity period, which in a physical sense is being like sprinting rather than running or jogging. And normally, in businesses, yes, there might be some high degree of energy expended on certain things. But most of the time, we get to a realization that you can't sprint for long distances. You can only find a more measured pace in order to run longer distances as business owners and avoid that sort of burnout.

And that's a very real thing, burnout amongst business owners. And I've said on here before, I believe that I don't think burnout is solved by a quick trip to Bali or you know, a couple of longer nights sleep or lie in on a weekend. It's not really a purely physical exhaustion, it's largely mental, I think, for business owners. And I think probably the thing that's really not yet known from this crisis is just how much impact, mental impact that this has had on everyone but also on business owners in particular because of the weight of the burden that they've been carrying for their survival, the continued employment of their staff, their ability just to keep going day-to-day. All of those things really do exhaust people and drag them down. And Kelly was chatting to me today about how difficult it had been essentially having her business shut by the crisis. And now she's coming back out of that. She managed to find the positive in it talking about how as a business owner, she struggled to give the right amount of time to her family as her kid was growing up but had found some great time to do that. So it's lovely to hear that.

But it made me think in... I had this conversation actually with a friend who was was talking to me about their business and saying how they sort of felt like just giving in basically. It made me stop and think about what is that pool of energy? How do we actually get up for the fight each day? How do we avoid as I've said on here before having that mojo drained out of us so we've just got nothing left to give? And the answer is continually trying to find your purpose. You'll probably have some sort of business purpose. We have at Employsure this purpose that we're all about helping to build better business, we're helping small businesses day-to-day. And that certainly gives me a purpose. But you've also got your individual purposes, and you've got to work on what they are. Because it's when you forget about that purpose, I think, that why, that journey, that mission that you're on that you end up feeling flat, exhausted, drained.

In talking to my friend last night, it struck me that...I'm gonna use a metaphor here that...if in some degree, we're all prisoners of some sort and you're in a prison. The prisoner that actually survives the sentence is the one that has the picture on their wall that knows what they're doing the time for. Whether that's their family or whatever it is, but they've got that bigger picture as to what they're gonna get through the mud for in order to get to the other side. And we all need that, as business owners, what is that big picture? What is that thing that we're working towards? Because as soon as you take that picture off the wall, and you tear it up, or you lose it, then it just becomes a sentence. And that that's pretty hard to deal with I think.

So it's really important for all of us and whatever that is that we make sure that we're connected to our why our purpose at all times to get through what can be pretty dark periods. And just when you're flagging, you need to draw on that energy resource to keep driving through, rather than as I suspect a number of businesses are at the moment, just quitting because it's all become too hard. So there's a little bit from me. I'm gonna turn to Stewie, who is being very patient over there listening to me waffle on with hopefully with some questions.

Stewie: Ed, a couple of comments to open up this week from Nick, "Hi, Ed. I hope you've thawed out from the ice bath a bit earlier.

Ed: I did yeah. I didn't say which dare I did. I did the ice bath. I'd intended to only do the ice bath but mainly because the other dares all seemed too scary, having snakes around you and walking across hot coals. I felt like an ice bath was something I could stomach. So I did that. But then Kelly...I don't know why I've been giving her so much bloody praise during this because she actually came and put a snake around my neck which was hideous. I've never done that before and don't plan to do it again. But yeah, so I had some sort of python around my neck today which was not much fun.

Stewie: Comment from Julie from Auto Rent. Hi, Ed, I'm still watching you from Queenstown in New Zealand even though our business is wholly Tasmanian based. Dependability to technology I guess.

Ed: I know Julie, I know from early days of Employsure so yeah. Runs a car rental business. Is, let's say, stuck in Queenstown. It's not a bad place to be stuck, Julie. But is over there at the moment with her husband so thank you, Julie, for continuing to watch. And I hope'd be interesting times in New Zealand, Julie. I think coming up you know, you've now got the Labor government over there that's...and I know your employment, your business is in Tasmania but what's gonna happen in New Zealand will be fascinating. Until now Employment Relations hasn't been high on the agenda mainly because in a coalition government the Labor government can stick their neck out too far. We heard Jacinda murmur during the crisis about moving New Zealand to a four-day week and things like that. I have no idea how that works on a scale basis. I understand individual busines is doing it but it will be fascinating to see what happens next.

Stewie: And Ed, just one more comment from Joe around saving, only 15 minutes late today with AEDT, not an hour like last week. I should be on time next week.

Ed: Good. Well done. It's very important to be on time.

Stewie: And because it is the Festival of Footy coming up this first question is quite topical. Paul, has an AFL related question, Ed, a bit of a left-field question. But do you think North Melbourne, I'm presuming the football club, are lucky that they did not potentially have a WorkCover case on their hands for negligence, which caused stress and anxiety that led to Rhyce Shaw, Rhyce Shaw, I believe, the coach, his mental health issues. So the question is, do you think that this could potentially be an issue for some employers agreeing for employees to work from home as a result of the COVID pandemic?

Ed: So I think trying to step back from that and it's good to see the real-world examples. I'll come to a really interesting real-world example in a moment I meant to talk about and didn't. But if you have people that have a causal connection between their health and your work, whether it's done at home, or whether it's done in a more traditional workplace, you can still be liable for that, undoubtedly, whether it's mental health or physical health. We talked on here before about the risk of someone having a WorkCover claim for catching COVID-19. Now, if you actually look at that, in practice, drawing that causal connection is quite hard. And that's why you end up with WorkCover investigators and people go through the claim and understand it, to try and see whether the situation has been caused by work. And often, that's very unclear. It's a very hard test to prove. So I don't actually know the North Melbourne case specifically, it's another aspect of AFL I know very little about. I'll go and read up on that afterwards. But if the question is that someone has mental health issues, and they seem to be caused by work, whether that's the stress of the environment or things like bullying and harassment to work, certainly liability can flow from that. But it is very hard to prove.

The other thing I'd add is that one thing that lawyers learn very early on in their training is that there's this concept called the eggshell skull rule, which basically in law means this that if someone's very fragile, and they consequently suffer an injury at work, mental injury at work, let's say, just because they're fragile, it doesn't mean it's not your fault. So if someone is fragile, you have a burden as an employer to treat them with sort of extra sensitivity. So it's important, I think, in understanding that being, first and foremost, a human as a manager, and understanding your people well enough to know when to push harder when to pull back. Because if you do have people that have pre-existing challenges, making them worse can still become a WorkCover claim.

Stewie: Just had this come in, Ed, from Kelly from Flying Ruby events.

Ed: Oh, she's watching.

Stewie: Yeah. Thanks for the shout out. I'm watching during the bump-out.

Ed: Yeah, thanks. Do some work Kelly. You've got everyone else doing your bump-out for you. That seems a bit...that's not exactly part of the team Kelly, come on. Not thanks for that snake this morning, it was not welcomed in any way. But it was yeah, it was nice to meet you, Kelly. And also we worked out as well that I actually used to play rugby against Kelly's husband Marcus. So he was a hell of a lot better than I was. It was good to see him as well.

I'm just gonna jump in there and talk about this case that came out I think is really interesting in the week. A few of you might have read it. It was in the newspaper in Sydney about a cancer center here. And the cancer center was suing or is suing an employee for defrauding them of money because they were pulling sickies basically. Not only are they suing them but the police have become involved for defrauding them. It's fascinating. In all my years of doing this, I've often wondered and thought that that is something that should happen. I'm amazed as to why the police...when you look at the amount of time that this person they said to have defrauded the cancer center out of about 10 or 20 grand I think, which is a lot of money. But it's not like you know, they've been pretending to be sick for two years when, in fact, they haven't. There was a period that they said they were sick, there's some suggestion clearly that they weren't actually sick and they were taking sick pay and the police have got involved.

It's quite an interesting fight back for employers. I've long been banging on feeling like I'm a bit of an echo chamber of no one listening other than myself about how frustrating it is for an employer to work in an environment where people can so freely take sick leave and you're expected to pay them for it. That is a fraud to my mind someone saying, "I'm sick today. I'm not coming into work, give me some money," when they're not. And it seems actually the employer, in this case, has fought back and somehow that police have become interested in and as I understand that this person has been charged and has also been sued in civil courts for defrauding. So quite interesting stuff. Watch the space on that.

Stewie: Ed, this next one from Naomi a long time viewer of the live streams.

Ed: There we go. I'm getting good at this. Either I know you all really well or there's only three of you.

Stewie: We're experiencing the sick/personal leave issue right now. An employee not returning to work as they have said they are caring for a family member. I've asked for a medical certificate and leave from. The doctor provided a medical certificate stating "Patient name has attended our clinic today and stated that they've been looking after their terminally ill grandfather since the 12th of October 2020 and will continue looking after him." Essentially the medical clinic has given them an open-ended medical certificate. They are currently getting Jobkeeper payments as they have no leave available.

Ed: Infuriating, I'd say Naomi. The problem with could ask the employee to clarify how long that will go on for. Or to at least put a date on which is gonna be reviewed. Or you could put a date on that to say, "Look, I understand you've been given this open-ended certificate, but we are gonna review it on this date to see how long that might be going on for." There's nothing to stop you from having that kind of HR, what would typically be called a welfare meeting, where you'd call them in to talk with them about their ability to return to work and when. And then say for the sake of argument, as much as the saddening situation behind this with the terminally ill relative. But if that was going to go on indefinitely, then there's the possibility of going down what's called a capacity or capability dismissal there. You might be saying to someone that essentially you just don't have the ability to do this role anymore because you are needing to commit yourself to this other part of your life. But that's not the stage you're at at the moment but you could set up on a periodic basis, let's say monthly a welfare meeting to ask and see how they're going and when they think they might return to work. Document it so that if you ever do get a situation where you're saying that this employment relationship can't continue in this vein, then you've got the history of what you have done to try and make things work.

Stewie: Ed, this is from Vanessa, she says spot on Ed. Honestly, no one has thought about business owners only caring for the employees, including the employers who have to worry about them whilst wondering how they will survive. I heard how many mental health-related WorkCover claims during COVID-19 have been accepted in Victoria. That's a joke when most employees hadn't even been working.

Ed: Yeah, it is. I suppose the other... Looking at it another way, I don't doubt that a lot of people have been...I can only imagine themess that sits beneath the skin of this crisis of people with all sorts of mental health problems being stuck in places that were not designed for them to work from or being stuck without work suddenly having any potential fractures in relationships exposed because you're spending much more time with people than you were before. There's just a whole mess of problems there. What does seem difficult is that where they've been attributed to workplaces, and there isn't that casual [inaudible 00:32:39] The insurance should be taking a critical look at that to say is this an unfortunate consequence of the crisis? Or is there some cause of liability that the employer is responsible for? Business owners as you say haven't been top of the agenda of people that really struggled through this. We've all got our problems. But what we do know about small business owners is they tend to take on other people's problems as well.

And actually, I've got some of our marketing team here. I'm gonna announce this to them now. They love it when I do this. But I was talking to one of our team, a lady called Gwen down in Tassie, that some of you might have dealt with this week about this exact issue. And what we resolved to do was to...she's currently looking for a third-party provider that can help us as a business with counseling for business owners, with relation to their mental health. And she's gonna go and speak to a handful of providers. And what I'm proposing that we do is we're going to spend some money on engaging those counselors or counseling service, once we find them. Then go out to our client base and offer it to our small business client base. Partly, it's a goodwill gesture. If there's a selfish aspect to this, it's that I listen to our advisors day-to-day. And a lot of what we do ends up being counseling, we're not just speaking about Employment Relations, which is great that we can help people with that. But there's a flip side to it, which is a lot of people take on the burden of that here as well. And I wanna make sure we're looking after our advisors because they deal in some pretty upsetting and difficult scenarios, day-to-day. And if people are needing a different form of professional help, we wanna divert them to the right place.

Stewie: Great answer.

Ed: Yeah. You guys love just having extra work to do, just running around and solve that. Reminiscing on good old days, Stewie, when we know, the government would make up a new job something and we would say, "Yep, no problem. We'll try that tomorrow."

Stewie: Absolutely. We're that nimble.

Ed: Yeah.

Stewie: Diane asks, looking for your thoughts on culture. What markers do you use to determine if an employee isn't the right cultural fit in your business, and how can you trust that culture will be sustainable if you're not there to personally enforce it?

Ed: Okay, really good question, actually. So, two aspects of this. I'd say trying to apply your cultural framework before you accept people into the business is a key one. So what do you do during the interview process to work out someone might be a right fit. And we do that principally by, you know, we know what our values are as a business. We have them written down, we try to make sure everyone understands what they are. But we interview based on those. So we at Employsure, our values are commitment, adaptability, honesty, and that we treat our clients as king. And we interview based on the interpretation of those. And if we don't feel people share our values, however good they might be, we won't select them. That's not a perfect science, of course. You can make errors on that but we do... There are then little litmus tests I use pretty rigorously and they might be unfair on occasion. But I reckon I exclude more wrong people than I do the right people by using these kinds of litmus tests. So for example, I will never interview someone if they turn up even a minute late for the appointed interview, I just won't bother going out to meet them if they're late.

What else won't I do? I won't interview someone if they bounce around a lot in jobs. If people have worked for, you know, less than a year in multiple jobs. It just doesn't look to me like they have the kind of commitment that I value. So those sorts of things I have in place to try and stop people coming in that are the wrong fit. Try to keep people that are the right fit. There's a great quote, I think about culture, you know, cultures, I'm going to bastardize, paraphrase it, but it's culture is what happens when you're not there, or what people do when you're not there, something along those lines. So by its very nature, if I'm having to enforce it, it's not our culture. And really, you know, we're lucky enough to have grown to have a lot of people. I see culture as really emanating not from me, but from all the people layer upon layer of people that have come over time from our first employees who are people who live and behave and work in the ways that they work. They're here still after that long time because they live and work and behave in ways that marry up to what I wanna see in the business. And collectively, we've build the business together on that basis. And they become the examples person after person of how people should behave in the business, rather than me telling people what to do all the time.

Because if I was telling people all the time the culture, it is still a culture but the culture would be much more directional, much more command and control. And classically, it would be much more like a military organization. That's very much...if I'm not here to tell you what to do, you'll probably won't do it. And so you become very direct in that way. We try not to work in that way here. We wanna trust people ultimately. But in order to trust, you've got to have this strong set of values everyone knows and understands. And remember, the final point I'd make is that values are kind of very risky in the sense that they can become slogans that don't mean anything unless you help translate them to people. So we have below our values connected to each of those values, a sequence of behaviors which we call our values in action.

So what does commitment actually mean? Commitment for us means amongst other things that you deliver on promises, you don't just say you're gonna do things and not do them. And if you don't do them, we'll call you out on it and we'll keep you accountable to it. We won't just shrug our shoulders and say, "Ah, never mind." And it means right down to a micro-level that we see turning up on time to things is important. And I've got to live that because if I don't no one else will see it. But as long as I repeatedly do it, then it should get deep enough into the culture that I don't then need to be there to police that. I hope that gives a bit of an answer to that.

Stewie: Yeah, that's true. This one from Alison, she's a client. We've been shut down since March, we run a gymnastics club. We have some trainee staff who only started with us in January, and we won't be able to take them back straight away when we can eventually open. So can we offer them to come back and do volunteer work if they want to? We'll take them back again as soon as business picks up but if they wanna stay in touch and come and help out with some classes, is that okay?

Ed: It's a bit risky, Alison, to be honest. Ultimately, that's gonna be okay until it's not. So, you know, if it's purely voluntary, you don't have to do it. You just want to stay in touch. There's always a risk that the person doesn't see it that way, sees it as you trying to take advantage of the situation, believes that if they don't do it, then they won't get the hours at a future date. So I think it's a bit risky. But all of that is predicated on not knowing exactly what your relationship is with these people. If you've got strong relationships with them, and they're understanding your business predicament, and they're willing to do it on a truly voluntary basis and they don't feel like there's some sort of coercion or requirement that they do it in order to get the hours at a future date, then you could give it a go. But it's not technically going to be a lawful thing to do.

Stewie: Ed, this one, from Mark in his own words, a curious question. Can the Prime Minister sack someone who doesn't work for him? That is, especially for buying Cartier watches? I wouldn't have thought that's a breach of workplace law.

Ed: Well, put it this way, if you earn as much as Christine Holgate does then you don't have many legal protections in the eyes of the law. So as long as she gets paid her notice period, then you can...some that's over the unfair dismissal cap can be sacked pretty easily. There's always a risk that they sue for discrimination of some sort. But in her case, and having this sort of external party, I don't know what this specific, you know, charter as to how the Prime Minister...what authority he has over a public body or publicly owned body like Australia Post. I'm not sure about that. So maybe he does have the authority to sack her ultimately. Maybe he doesn't. But it's quite an interesting question. From a private business perspective, if you think about the number of times that you might get a complaint about your staff member. And quite often, the complainant might say something along the lines, "I want to get rid of them, they were rude to me," or whatever it is. You might have to work out what to do as a business.

On the one hand, you risk your reputation in running the business by having someone that's getting complained about. On the other hand, you have workplace obligations to that person. And you've also got cultural obligations that if you don't show loyalty to that person, does it end up eating away at your business? So the short answer is you build from the ground up and that you start off with what the law says. If someone rang me today, and fortunately, they don't, but they say they rang up and said, "I think so and so staff member is terrible and they're rude to me." What I wouldn't do is walk out and fire that person, I would say, "Thank you for the complaint. Thanks for making me aware of it." We'll go away and investigate it and we'd look at it. And we'd probably then, you know, subject to privacy issues, give some communication back to the complainant. Say, "Look, we have engaged in this process and you can be assured that certain actions have been taken." If that turned out to be what needed to be done. But you don't tend to be able to as an employer work on the, and you shouldn't, work on the command of a third-party external to the business.

Stewie: Thanks, Ed. This one from Darren. He says, "Ed, we're looking at redundancies, we have less than 15 employees in the business. So I thought that we would be protected from unfair dismissal. However, an associate of mine mentioned that we may need to think about associated entities. Do you have any advice on that?"

Ed: I do have a bit of advice generally. So you're not protected from unfair dismissal. What you might be protected from, depending on your award is redundancy payments. So that doesn't mean that you can just walk out and dismiss someone. I was stunned last week, actually. I was doing a bit of work for a friend who was made redundant within a five-second meeting with no consultation, no warning. I don't think there was malice intended. I think the business in that case just didn't understand and they thought that as a business with less than 15 staff, they didn't have the obligations to go through processes and so forth. You still do. You can still be sued for unfair dismissal. But you might not have an obligation to pay redundancy pay. So they're two quite different things. If you're gonna make someone redundant as a business with less than 15 staff, you still have to if they have unfair dismissal rights, by virtue of their service and so on, you still have to go through the right processes. So be very, very careful on that. It just might mean that you don't have to pay them redundancy pay but you do have to go through the process.

Stewie: Thanks, Ed. This one from Jane. Ed, will the lockdowns and restrictions affect the way I notify my staff about Christmas shutdowns. Some of my awards require formal notification but I'm not sure how to approach it this year.

Ed: I can't see how if the award requires formal notification, you probably would have put in writing anyway and so forth. So you should be able to do that still. So check the award, make sure you comply with that. But I presume maybe you're thinking about things like notices to staff and so on. But you should be able to do that by email and then making sure you ring around to check they've been received and read.

Stewie: Time for one more formal question.

Ed: Sure.

Stewie: From Tammy from New Zealand. If they increase sick pay, will they also toughen the rules around the employee proving their illness?

Ed: I doubt it, Tammy, being frank. Toughening the rules doesn't do anything. I always think...over here, for example, Tammy, there's...great to have so many people watching from New Zealand, by the way. I will never forget it. When I was first setting up this business I was driving to see a client up in the Sunshine Coast in Queensland, I swear I was. I wasn't just buggering off to [inaudible 00:46:14] what my wife calls a fake business trip to go and have some quiet time away from my kids. That wasn't what I was doing I swear. What I was doing is going to see this client and over the motorway on a billboard had a sign advertising that you could get sick leave certificates from a pharmacy. The very clear implied message being that you weren't particularly sick, but you could just get signed off at the pharmacy. And they were selling them for...I can't remember what the fee was now, about 50 bucks I think. And that to me marches coach and horses through the spirit and intent of the legislation around someone being sick. But it's to me the medical profession has got a big thing to answer for, for what they've done with that in not critically pushing back on people who are just looking for time off. And I know that it's the same in New Zealand at the moment. And I don't think that that's good. I can't see a way other than the medical profession getting a grip of it, of changing that.

Stewie: Ed, just a couple of really nice comments to finish up here from Karen. She says, "Ed, great to be listening. You're in competition with the U.S. government today. No competition as far as I see it. They should vote one for Ed, who's with me? Thanks for the great job you do."

Ed: I think they've got the presidential debate right now.

Stewie: I think they do, yeah.

Ed: I think that's probably the only place you'll hear more nutty things right now. More ranting on here than anywhere else, actually we advertised today. Come here for more one eyed rants than you'll hear anywhere else.

Stewie: And a lance of insight as well.

Ed: Well, occasionally. In the debate or here?

Stewie: Here. And from the Design Dental Group, we've received great advice from Employsure, in recent weeks. Thank you.

Ed: Great, great to have you onboard, guys.

Stewie: And Nicole says, and I concur, great idea, Ed, around the counseling.

Ed: Good. That's good to hear, Nicole. I'll see whether the team shares when everyone's running around trying to make that work in the next few days. But yeah, hopefully. I think it's...I openly speak about that myself. I've definitely had times where it's hard just to remind yourself just to get up and keep going. Not least because it's bloody hard to run races when you don't know where the finish line is. I don't know if any of you have ever done that when you...whether it's a sporting club, or whatever it is, but not know how long you've got left makes it really hard to do things. And the only way that I can propose doing that is to know that there isn't a finish line. You're working to a bigger purpose that you'll probably never actually achieve. And you've got to somehow pace yourself to be able to consistently run at that purpose. Good. Thank you very much, everyone. I shall see you next week.

Fridays With Ed Live Stream - 16th October 2020

In today's live stream, Ed talked about guiding a business through crisis, leadership challenges and self-management and managing and communicating with employees.

Fridays With Ed | Leading Through COVID-19
Ed: Hi, guys. It's Ed here on Friday, just tuning in from the office. Once you might say. That's certainly what everyone behind the screen is saying here that, good of you to turn out to work, Ed, for once. I've had a couple of weeks doing this from home but I'm back and raring to go in the office this week. And we've got some interesting things to go through today.

This is the structure that I'm going to adopt the items that I'm gonna go through. The first is I'm gonna talk about IR reform in Australia. There's more and more murmurings in the press about what's gonna happen with any IR changes. I've been a bit of a naysayer saying nothing is gonna happen. And I'm gonna say a bit more of that today.

The second thing is, you may have read in the paper about a decision that went against Qantas relating to JobKeeper, the court decision that Qantas lost. It suggested that that might be relevant to all businesses. And I just want to talk a bit about that, in case you're worrying about that.

Third, one, just briefly. New Zealand election coming up. So I think it's tomorrow, isn't it? So I'm no political expert. Looks like a pretty foregone conclusion from what I can work out that all being done in a much better spirit than the one over in the U.S. at the moment. And I'll just talk a bit about IR platforms over there and what's happening.

Finally, I'm gonna swerve a bit away from IR Employment Relations. I'm gonna talk just a little bit about the concept of lockdown and small business and what that means for us. And then also how that's translating into my own COVID planning here, what we're doing as a business, the decisions that I'm going through at the moment which may resonate with you as to what you're trying to do in your businesses.

So let's get cracking, IR updates. So I've been saying all along that this was all a bit of an exercise in pointless futility. I think that putting a load of people in the room, many of whom don't really understand the true issues relating to IR, particularly as they relate to the majority of employers in Australia, which are you guys, small businesses.

You've got a group of people arguing about things like enterprise agreements in a room that seemed to get heated at stages. And now it's full of leaks and this what was meant to be this confidential process. But everyone's coming out in the press saying that there will or won't be agreements on various things.

The net result of it is I don't expect to see much change coming out. I don't think... And I think in fairness to Christian Porter and the government, I think their early optimism that somehow we're on some kind of wave of goodwill in the crisis, given a lot of the short-term temporary measures that were put in place, that that wave was gonna transition, or they were gonna ride it all the way, testing my surfing knowledge here. But they were gonna ride that wave all the way into the shore, really to actually push through some IIR change that no one had ever been able to affect before.

Such the distinct polarized views in Australia are about things like wages, such fundamental things to the employment relationship. So there hasn't been much sense that there's been much agreed. I mean, most we saw this week was a concession by the ACTU and you heard me say this here before as well. I'm not quite sure why their voice is so loud. I think they represent less than 10% of private-sector workers. They'll represent even less than 10% in small business. Small businesses are rarely unionized.

Some industries are but very few small businesses are. One of the hot topics has been the concept of wage theft which we're seen creep in in various states into law. And there was a concession by the ACTU that wage theft would not be used as a blanket terminology or it's not their intention for it be used as a blanket terminology for every form of underpayment, which I'm amazed it's something that they actually have to say out loud with a straight face. The idea that every time someone underpays in the most complex wage system in the world, that they would be decried as being a thief and the ACTU has stepped back from their initial sort of bombastic approach of saying that everyone underpays wages is a thief.

I think that you know, hopefully, that's just dose of reality that they're realizing. Because in the same week this week, the Fair Work Ombudsman has put out its annual report, which, again, shows lots of scary numbers about how many of us are getting sued for various Employment Relations issues. And they noted in there, for example, that they recovered over $120 million in underpaid wages this year, $120 million. It's a huge sum of money. Now, if it is right that we as employers are a bunch of thieves, then we're probably the most successful thieves in Australia. I don't think there's many people running around doing $120 million of theft, let alone the ones that got away with it this year.

The reality is that there is such a huge degree of underpayment because the system's just far too confusing. And what we should be doing is clubbing together and helping understand that it is in everyone's interest to have fundamentally a simple system whereby employers can pay their employees the right amount of money.
There is no more fundamental principle in the workplace in this that if someone engages to provide their time and their effort to you as an employee, that you obviously in return, pay them for that, and you pay them the right amount. I would never suggest anything but that. But the fact that that doesn't happen in Australia, and much more so than any other country in the OECD. Australians get that wrong, not because Australians are worse than everyone else at maths, I don't think. Tell me if you think I'm wrong on that, but because their system, the system here is just so bloody complex.

So anyway, it looks like this whole sort of very headline-grabbing narrative that wage theft is going to die down slightly, which is good. There's some talk about coming out of these groups that there's going to be government incentives to use software to work out your wages so don't get them wrong so often. That for me is just a massive statement of the nativity of the people that have been in that room. That's sort of the equivalent of a board of directors sitting there and trying to claim they know actually what's going on at grassroots level in a big business. I mean, the people that have said that obviously have no sense at all as to how payroll works and some sort of presumption that we're not already sitting there using calculators to work out how much wages should be paid. There is no such thing as a mythical piece of software that will solve how much you pay your staff.

There are a couple of companies out there that will do award interpretation for a narrow amount awards. But fundamentally, what every piece of software that's out there needs, everything needs, in terms of wages is a human interpretation of what your employee does for you, and therefore, what category they should be under the relevant award. What is the relevant award, is another question I have to answer. And you need to do a calculation of that. Now, whether it's software, a spreadsheet, or a calculator, they can only help you do that calculation once you've done the human inputs. And the errors here, often come in the human inputs unfortunately.

So they seem to have sort of feel like they've done their day's work by just announcing that the government was gonna invest in software. Software seems to be the answer to every business problem in the world at the moment. But in my experience, software doesn't solve anything. People solve things by working out what the problem was, breaking it down, coming up with a solution, and then sometimes use software to help in that solution.

But I think the government's going to, unfortunately, either do nothing or look a bit silly in what it tries to do following these IR updates. So that's the stuff there, much to do about nothing, basically. Then on to the Qantas decision. So you might have read about this. It's one of a number of things that Qantas have been getting a kicking for. And I have to say, I don't think anyone that runs a business couldn't feel some sympathy at the moment for Qantas to be... It's a reminder to us all, I think, that sometimes as small business owners, you can feel like you just don't have the clout that big businesses must have to get things done. And they always seem to have these friends in corridors of power that sort of make everything easier for them whilst small businesses are slaving away the hard way.

I think the crisis if anything has shown us that actually big businesses don't have that much clout either. So, Alan Joyce is probably wondering what he did wrong and who he forgot send a Christmas card to in terms of the behavior of a lot of the state politicians in ruining his domestic airline business when in plenty of other countries around the world, airlines are now back in the air in various different ways. And then on international basis, there is now murmurings and the language in the recent budget suggested that our borders are gonna be closed for another year, meaning that there'll be very limited Qantas flying during that time. So I feel a bit sorry for Qantas. I feel even more sorry for them because they've just had another kicking in court. It seems whatever they do they get kicked for their industrial relations stuff.

And in this case, what happened was this is, is that they have employees both paid fortnightly, some paid monthly. And broadly, what was happening was this, is that where employees were working less than the $1,500 JobKeeper wage condition in any given fortnight or period, Qantas was allocating, sometimes when they had earned over that $1,500 amount in another period, they were allocating the overs to the unders periods, so that they essentially were paying them the 1,500 bucks and not more in one fortnight and then having to top up in another fortnight. Now they was found that they weren't allowed to do that. If you look at it from...if you actually stand back from it, and just say, look, the objective of JobKeeper was to keep jobs. I don't think that's particularly controversial, making that statement given that's what it's called. And the idea of keeping jobs obviously is not for employers just to act as a bank in handing over money from the government to their employees. The idea was to support and ultimately subsidize the income of those employees so that their jobs could be kept, and that the employers could carry on employing them. So what Qantas we're definitely not doing was taking money from the employees, the employees were at very least getting paid the money for what they had earned.

What Qantas were doing was avoiding what they perceived to be an unfair situation where they were paying out JobKeeper to an employee in excess of what they had actually earned in one fortnight and then having to pay wages over and above the $1,500 in another fortnight. So in essence, they were saying, look, it doesn't seem right that we're paying out this extra money. We're not being subsidized at all, and the employee is actually getting more money. So they interpreted the JobKeeper rules as saying, "Isn't it right that the employee gets what they were intended to get by way of what they're earning?" And actually, Qantas gets some financial support to pay those wages in what are plainly difficult times for the airline.

And the court amazingly found that that wasn't right. And in fact, just because the employees are doing better off than they should be by the hours that they worked is not for Qantas to get the benefit of the subsidy, the employee must keep it. So they're appealing that decision.

There's some talk about how that will affect lots of other businesses. I don't see it, personally. Shout out now if you're a business that's tried to reallocate income to different wage periods to try and flatten out how much you pay your employees. But if there's a criticism of Qantas, it does feel a bit sort of artificially constructed. They can apparently do it under their enterprise agreement. But I don't, in my experience, see many small businesses shifting around payroll dates and things like that on that basis. But tell me if you're seeing any practical problems on that basis. I'd love to see if I can answer them.

Okay. Quickie on New Zealand. So, New Zealand's got its election tomorrow. I'm feeling like putting cats amongst pigeons here today. So I think that, as I said earlier, that it looks like it's gonna be a shoe-in for Jacinda to get in there for another term. And you've heard me say on here before that I'm full of regard for her as a leader. Nothing to do with her policy or politics. I just think that as a leader she carries herself very well and I admire her for that. But it does seem to me that, you know, another term there will probably, and I say this as a business owner in New Zealand, that New Zealand seems to be heading in a fairly consistent direction to becoming the sort of Norway of the South Pacific in that it's increasingly having these socialist laden policies which make it quite difficult to employ people over there.

And again, I say this from experience, the industrial relations framework in New Zealand aside from the wages which is far more complex over here in Australia, but actually managing people in New Zealand is very, very difficult. And it's only gonna get harder I think. There's also other things that seem to be done in a very liberal verging on socialist view of the world like... They're about to have a referendum on cannabis use, which I'm told by people over there, they think will end up with the legalization of cannabis.

Now, I don't hold a particularly strong view on that either way on a personal level, but I would say this, as an employer and as someone that helps employers, it will cause problems in the workplace in that suddenly you will have additional cost and regulatory needs to check that people coming in working in your workplace, particularly those handling machinery and things like that need to have drug tests and things like that.

So there are some problems that flow from those sorts of things. Problems and red tape, and policy and cost. None of those things add to entrepreneurship and ultimately having people wanting to get into business and create jobs. So it'll be interesting to see what happens, both in that narrow policy issue, but also as New Zealand moves further and further into some of the concepts it has in its society at the moment, which seem to me to be pushing against encouraging entrepreneurship and job creation.

Very interestingly, for example, I can say that as a business with business in New Zealand and in Australia, notwithstanding New Zealand's arguably more successful dealing with COVID-19, I think the economic impacts in New Zealand for what we can see as a business are just as big as what we're seeing in Australia. They seem to be willing to accept that impact, notwithstanding the fact that the crisis never got as bad over there as it did here.

So there's a bit on New Zealand. I wanted to talk briefly about an article that I read. I'm still a bit too tied to my pommy roots. And most evenings I'll read a couple of English newspapers and see what's going on over there. And it seems to be, whether it's just the papers I read, I'm not sure, but to be...I think the technical term is a complete shit show in the UK at the moment in the way that people seem very confused about what their lockdowns mean, how they're gonna behave, and so on.

And I have to say, it does, having just given New Zealand a kick in how frustrating it can be to do business there sometimes, I am pleased that relative to the UK, things just seem so much more ordered here and in New Zealand. And, again, going back to the qualities of Jacinda Ardernas a leader, her communication through the crisis has been excellent. And whether or not you agree with how she's locked down the country at certain stages and so on, she's been very clear about what needed to be done and executed on it compared to the confused messages they're getting in the UK where you've got traffic lights, tiering, local lockdowns. They've stopped using the term lockdown now because that seems to have a negative connotation. So they're talking about circuit breakers and all sorts of things go on. And it is utter confusion over there.

What is clear over there, and I've certainly found this in conversations with friends and colleagues over there, that I think that there's a sort of...there's quite a different view about lockdown depending on where you sit in probably in the workplace as much as anything. So what I see is that business owners and those that are having their businesses impacted by the crisis tend to be very anti-lockdown and want to get back to work. And they see the balance of health and economic success as being leaning towards economic.

We then have a big, chunky group of let's say workers. I loath to use the term but the middle-class workers, white-collar workers, a lot of whom are still very pro lockdown, very pro the idea of not going back into the workplace, very pro the idea of health being absolutely paramount, and it being an offensive thing to suggest that should ever be balanced against the economy essentially. And then you get perhaps blue-collar work, where people have really found that their jobs have been affected by the crisis in the same way that business owners have been affected and they seem to be anti-lockdown as well. People that perhaps you know, say work in restaurant hospitality have lost their jobs, they're the ones that are saying, "Okay, guys, we just really need to get back to work because I can't pay my mortgage."

I read this article in the UK Telegraph. I think we're gonna post the link up here on the stream, and it was entitled this. It said, "Wealthy Supporters of a Second Lockdown Ignore the Extreme Hardship This Would Cause." I'm going to read out a little bit of it. I think it speaks to us as those that are trying to run businesses through this in the fact that it just...wherever you're based at the moment, Victoria, obviously being the standout for us locally in terms of the impact that we're suffering from this, but I just don't think that people really understood just how much impact is going on.

I don't think that as a country, either here or New Zealand, we've got a real idea yet as to what's happened to the economy in that, what you've still got is a lot of people as I say, that are pro lockdown. So I'm just gonna read a little bit out from this article that said this, that there are various wealthy supporters of a second national lockdown in the UK. I can't think of a single reason why there wouldn't be. None of them is likely to lose their jobs, let alone their homes in the next 12 months. No matter how many people die from COVID-19 in the coming weeks, they'll be able to claim that the number would have been smaller if a second lockdown had taken place. So long as the public focuses solely on COVID-19 related outcomes, and ignores everything else, the compassionate, high status, virtue signaling opinion is to support lockdown.


And that seems to me to be that, if you like an argument that has been lost. And I don't know how the business lobby and how all of those workers that are losing their job and not able to pay their mortgage didn't coordinate better to tell the story as to the impact that is now being suffered. And instead, this middle ground of people that are still very pro lockdown seem to want that debate. This idea that the health crisis is bigger than the economic crisis, on numbers seems to be farcical to be honest. But numbers just don't seem to have won the day in the storytelling around this.
It says that a bit later down. It says, "Remember when lockdown was a last resort to prevent hospitals being overrun." That was the reason we were all given at the start. Protecting the health service was the only reason given when, in the UK, Boris Johnson appeared on television in March. Most of us signed up to that. But since then..." and it goes on to explain everything that's been done. But notwithstanding the fact that we're definitely not in a position in Victoria, where the health service is anywhere near overrun, nor is it suggested that that would happen if a lockdown was stopped.

We're gonna see this weekend that the announcement, I suspect that there's gonna be no acceleration of the move out of lockdown. So none of that goes to suggest that I'm totally callous and I don't care about loss of life and things like that. But I just do, I worry in all sorts of respects, I worry as a business owner, I worry for the long-term livelihoods of the people that are pro lockdown even because I think that they will start to lose their jobs over the coming period. They just haven't seen it yet.

And I worry for the education of children, and things like that. I worry for a generation of children as to how the hell they're gonna get jobs over the coming years. So none of the worrying though is I'm expressing there is thinking. It's not my job contrary to me immersing myself in these articles to be a COVID-19 expert. What I do have to do, and this is just to finish on this before we move on to questions is to execute a "why, how, what" at Employsure, a vision, a strategy, a plan as to how we're going to get through the crisis.

And you've heard me say it here before. But we do that at Employsure by saying, "Look, our mission for this crisis is to achieve business success throughout the crisis and beyond. How are we doing that? We consistently prepare for the worst." So you've already heard me saying that I don't think that we're gonna see much relief in Victoria this weekend. We are preparing as a business to carry on with the status quo that we currently have in Victoria, which means our office there is shut at the moment, for example.

We're also preparing for business in preparing for the worst that as soon as we're seeing some growth in cases New South Wales, I don't know where they're gonna go, but we're preparing as though things are gonna get bad here again, as well. And by that focus of preparation, we enable ourselves to be, I suppose, as we have been so far, consistently in a better position than we have prepared for, which is an easier way to respond to the crisis.

And what that has meant is this is that right now I've got quite a weird phase in a way and that we came into the crisis, and it was intense and all-consuming. We seem to think that we were coming out of it. I remember saying on here and to our staff internally that we're definitely further out of the woods than we are in, thinking that we're closer to the end at the beginning of the crisis, and then Victoria happened, and then the second lockdown in New Zealand happened and so on. And it felt like we were back at the bottom of the ocean again and we were not coming up for air.

And again, it feels like we're getting closer and closer to the surface. New Zealand lockdowns gone back to the position we were in. On Monday, our Auckland office will be back to normal. There's no social distancing in those offices and so forth. Victoria whilst still in lockdown, we hope, even if it's not this weekend, we'll soon be out of it. New South Wales. I was just walking out of the gym I go to this morning and the social distancing sign was starting to peel off the wall, and it feels like everyone's sort of slightly moving on from it.

Yet at the same time, we've got a potentially in there another set of cases coming through. And we saw in Victoria how quickly things can change. I think we've all got such a short memory span for what's occurring that you've really got to remind yourself to continue to prepare for the worst. So you might remember that part of our preparing for the worst plan what we do day-to-day is we have a crisis management meeting here at 8:30 every morning. And we were hemming and hawing this week about maybe how we should stop that now and we just need to move on to a new normal.

Quite often the meetings are brief. There's not that much to talk about day-to-day. And I've said, "Look, hang on not yet. Let's carry on just at least until the end of this month, and we'll review. Because I can almost guarantee the moment we take that out of the planning cycle, our crisis management cycle, we're going to end up with an uptick in things and we're gonna be behind the game. We need to be sitting here preparing for the worst. And if that means that we're having short meetings, there's not much to say, then we're probably doing our jobs."

So I'm trying at the moment within Employsure to really achieve a consistent discipline in keeping up that form of crisis management. And I don't know that I'm right in doing that. And it may be that my colleagues here are getting fed up with having regular meetings that don't say much. But I'd much rather prepare in that vein than I would lose control of things by pretending everything's back to normal just because the social distancing signs are peeling off the walls.

So the message for me as to what I'm doing is just when you think you're starting to drift, that's when you increase your discipline in your crisis management. I was having a chat with one of you guys that watches this live stream on email over the course of the week. And she quite bluntly said to me, she said, "I see that less people are watching these days." [inaudible 00:27:47] Funny enough, I think that's a good thing.

It's a good thing in the sense that it means people are less craving need and perhaps have less confusion. That's a positive thing for business at large, which is a positive thing for my business. And that it means less of you are gonna be ringing and saying that, unfortunately, you're struggling and so forth. And that's what I'm seeing, which is good news. But at the same time, I don't think it changes the need for me to do what I want to do with this, which is to continue to communicate through the crisis and to help you and myself through it.

And to that end, I suppose the proper way of looking at this is that you end up being a bit more like the orchestra on the Titanic, you know, sort of being...carry on playing as the ship's going under the waves. So even if less of you are watching, I'll be here until you tell me to bugger off making sure we're supporting you through this. So that's it for me for the moment. We have Stewie here to read questions this week rather than my very amateurish version of [inaudible 00:28:56]. You probably didn't even bother to watch last week, Stewie, but I did pretend stew voice from the side.

Stewie: I did. I did watch and it was sterling effort.

Ed: Thank you. Thank you. It wasn't as effective but I thought I'd try it out.

Stewie: We'll see.

Ed: A bit of stew to the mix.

Stewie: Ed, there's a couple of comments to start it off today from both around daylight saving. Margaret says, "Good day from North Queensland. I remember that you're on funny time." And Elena says, "Nearly missed you because of daylight savings."

Ed: There we go. Yeah, it's funny isn't it? I travel to Queensland so much normally that I just haven't...because I'm not going there at the moment I'm sort of tweaked about that. So I apologize for the flux change, out of my control.

Stewie: From Alicia, "Hi, Ed. Is asking an employee to work at one of my other store locations a reasonable management instruction? What can I do if they refuse?"

Ed: Hi Alicia. So a couple of things. If we answer that as though you're not and never were a JobKeeper business, well, Alicia, if you're the Alicia I've spoke to before, I think you were. But let's assume for a moment that you're not, it will depend a bit on what the contract of employment and/or awards says about location of work. But in what you've asked, there you said, "Can I ask an employee? Would that be a reasonable management instruction?"

So you can ask anything, frankly. And if the employee agrees to it, great. And part of the challenge, therefore, is just asking it in the right way so they're more likely to agree to it. That's a sort of HR problem rather than a technical or a communication problem, rather than a technical one. Can you force them to do it? I think is what you're really asking even if they don't want to.

So if you're not and never were a JobKeeper, and the contract of employment doesn't have that level of flexibility then you can't force them, therefore you can't say that's a reasonable management instruction. But if you are a JobKeeper or you're what's known as a legacy JobKeeper business, then there are rules relating to where and when employees work, different rules relating to how much notice you need to give them to make those changes, and so forth. So I'd urge you to reach out to us to talk about your specifics if that's an important issue they need to work out.

Stewie: And, Ed this one from Edgy is getting a bit of engagement. Edgy says, "Talking about JobKeeper, any ideas about staff members who are doing their job during JobKeeper on minimum hours and essentially getting free money from the JobKeeper top-up are now doing the same job and taking more time to do it to get paid more. One could argue that they can do their job on the hours they were doing during JobKeeper, and now they are possibly committing time theft by doing the same job but taking longer to do it since they don't have the free money coming in.

Ed: Yep. Hi, Edgy. Time theft, I like that. Employers are getting accused of wage theft which... I'm not promoting workplace harmony, am I here? Suggesting employers should fight back talking about time theft. I feel like I have time theft sometimes I've got my weekly meetings on Friday afternoons with my Head of Digital Marketing who's looking at me here. I'm gonna accuse her of time theft today.

That's a bad joke. Can you accuse... So, the reality is this is Edgy, what you've got is a performance management problem. So if you know that that person is able to do the job in a certain number of hours, and that number of hours is less than the amount of hours that would have equated to the $1,500, i.e. they were piling through their work so that they could bugger off early and then they'd still get 1,500 bucks, you now know as a consequence that they're able to do it in that time. And you're perfectly entitled to performance manage people.

There's no legal right for someone just to drift at work. So you need to have a look. It's obviously hard without knowing the specifics of the job that they're doing that if people are taking longer to do it, then they might reasonably be able to, then you need to performance manage them. And it's not really a JobKeeper question. Therefore it's an HR question. ER question, how do I performance manage someone? How do I engage them so that they work actually at optimum productivity?

Stewie: This one from Allison, another JobKeeper question. We have two employees who are ineligible for JobKeeper as they are casual and haven't been with us for 12 months. Are we able to change their status to permanent part-time and start to claim JobKeeper for them?

Ed: No, because by the time you change it they won't have been employed on a permanent basis on the date at which they needed to be for eligibility.

Stewie: Ed, this one from Christian. "Ed, I have an underperforming employee. They're aware of the situation and I'm trying to constructively improve their performance but they really need constant oversight and micromanagement. They're working from home and I'm busy too. Any advice? Can I insist that they be office-based to make it easier?"

Ed: Words like "insist" are always a bit of a flag in Employment Relations. But certainly, if you've got someone that is working from home and they are not performing, the way in which I interpret the rules in, I'm gonna assume you're not in Victoria at the moment, is that people if they can work from home, they shouldn't work from home if it is reasonable for them to do so. In that reasonableness that you get the opportunity to say, "Well, hang on a second if their proper place of work is in an office, in a workplace, and it's because of the crisis, they're at home, then if they're not performing well, and the alternative is that they're gonna carry on getting performance managed, and potentially even, therefore, getting dismissed, it seems to me to be reasonable to bring them into the workplace to give them the proper training and oversight. And in fact, that would be something I would love to do before you say escalated the process towards any sort of termination process. Because you should really try all of those things to try and get them to perform in their job.

The other things to watch out for, though, and this is perhaps the more cynical end of management is that the way in which the law is set up is that you need to consider when someone gains the right for unfair dismissal claims. Therefore, consider whether you need to look at if they're not performing, look at cutting losses essentially, and moving someone on before they accrue the right to sue you for unfair dismissal. It's obviously easier to terminate someone's employment before they have that right, and sometimes you just need to make an honest decision with yourself. Is it worth incurring the risk of that sort of claim against bringing the employment to an end before they accrue the right to sue you for that?

Stewie: Ed, this one from Liz. Apropos of you mentioning Qantas a little earlier. She says, "Isn't the Qantas time shifting a similar concept to offering time in lieu?"

Ed: The way Qantas did it is it similar to offering time in lieu? I don't know. I'd need to think about that, Liz, to be honest. So someone has done over time and you say, we are gonna give you time in lieu. You've worked the overtime in let's say fortnight one, and then in fortnight two, you have time off in lieu. Yeah, there is a similarity. I think that you're right. That is a risk that then you say "Okay, I'm not gonna pay you in fortnight one, anything but the $1,500 that you actually earned. And then the extra hours, I'm gonna put into fortnight number two as time off in lieu."

But of course, if they weren't otherwise gonna work in that fortnight. So it's hard to schedule them for time off in lieu in a period they weren't otherwise gonna work but there are similarities. Makes me realize that you will need to look at specific cases for people maybe like yours, Liz, to work out whether you've got a specific risk if that is a problem for you.

Stewie: Ed, this from Gary. He says, "Hi, Ed. How does long service leave the crew for staff that are one, employed only on the hours that JobKeeper will cover, and two, working hours above those covered?"

Ed: So long service leave, it accrues based upon the hours that have worked, not based upon the hours that might have otherwise been worked under JobKeeper. I think that answers that. So you look at the hours that have been worked.

Stewie: Okay. And a short one, Craig. "Any updates on the casual conversion case?"

Ed: No, no updates that I'm aware of. I think that it's proceeding to an appeal. The wheels of justice move pretty slowly. So I don't expect any updates imminently but we'll let you know as soon as we hear anything.

Stewie: Okay. This is from Sam. He says, "We stood down some staff and are looking to bring them back. However, we did keep some stuff on throughout COVID. I'm worried about the cultural impact of moving back to our normal workplace that is potential rifts between the staff who got stood down versus the staff we got to keep working, and potential tensions with us as the owners. Plus, culturally speaking, we are not the same business we were six months ago. Do you have any thoughts on this?"

Ed: Yeah, I do. I have some thoughts on that. I have two groups of thoughts. The first thought is relating to the cultural, I suppose. The most general comment I can make to any cultural issue is that the best way to deal with cultural issues that you are worrying might occur is not by just obviously sitting and stewing on them, but to start expressing them and communicating them. Those have led best through the crisis, I think have been those that have been honest and open. Used the three C's of communication, clear, consistent, and concise. So speak to your staff about that. This is what we're doing. So and so has been away. So and so has been stood down. So and so worked through. This is why. This is what we're going to do about it. Maybe have a meeting, if you're really worried about the air being murky. Have a sort of clear the air meeting. Invite people in to have a chat about any concerns they might have about coming back into the workplace.

And that probably gives you a chance to air what it is that you think makes you a different business now to what you were six months ago. So that's my general recommendation around those cultural issues if you like. As to the question of difference, I suppose asking and checking to see whether that difference actually means you don't need all of the people that you're bringing into your workplace. Has your business reshaped? Are your staff requirements different to what there were six months ago? In which case, you need to be starting to think about reorganizing, restructuring your workforce in order to meet the needs of the business, which might result in things like redundancies if that's necessary. But you should be thinking about that sooner rather than later. But I think that's more fair than bringing people back into the workplace, just because they used to have jobs and then realizing that you actually need to dismiss them a few weeks later. So just start doing that critical thinking about who you need in the workplace.

Steve: Ed, this one from Russell, apropos of the potential cannabis legislation in New Zealand. "If cannabis gets legalized, who pays for the drug tests at work?"

Ed: First of all, I hope that's not Russell, our head of sales in New Zealand. We're all about legalizing cannabis. I'll take that up with you privately, Russell, if that it. Who pays for the drug tests? It would likely be the employer. A lot of workplaces will have mandatory drug testing already, particularly those high-risk workplaces with heavy machinery. So it wouldn't really be much of a change there. But it may be that in other industries, which don't have such stringent drug testing rules but might start to need them, it will typically be the employer. It's less the payment to be honest, that's the issue. It's the access to the testing, making sure you have policies in place that enable you to actually do that so that you don't end up with disputes about someone's rights if you suggest that they needed a drug test.

Stewie: Okay. Ed, this one from Lorraine, she says, "I'm planning to bring more staff back to our workplace but I have an employee who is refusing to catch public transport, and insisting that I either have to pay for her Uber or her parking. How can I approach this?"

Ed: So again, I suppose it comes in two parts. I can give you a pretty blunt Employment Relations answer to that. But that's not doesn't really solve your problem. The problem will get best solved by communication with that employee. Try and put yourself in their shoes. Why are they so worried about that, rather than simply saying, "Well, you know, trains and transport are open, and no one's saying you're not allowed to use it. So get on with it, or else." You're better off having a frank conversation and trying to be persuasive and understand what their problems are. Let's say, for example, that they live in an area that has been a hotspot or is a hotspot and/or they have elderly relatives that live with them. There may be specific circumstances that you can help manage them through or you might recognize them. Say you know what? I understand why they are reluctant to do that. Maybe I will pay for their transport. But if you go through that process, and you can hand on heart say, look, I still think that it's entirely reasonable to ask that employee to take public transport based upon the fact that ultimately the state is determining whether public transport should be open and it is open. And therefore, we think that it's reasonable for them to come in. If they continuously refuse to come in, then you might get into a failure to follow a reasonable management instruction, which might result in disciplinary proceedings. But there's a whole sequence there. Don't rush to the end of it at the start.

Stewie: This is from Judith. "We're looking towards the Christmas and summer school holidays. It seems our staff haven't asked for as much annual leave as they normally would by this point of the year. I'm starting to get nervous about carrying that leave financially. Can I force them to take holidays now?"

Ed: Yeah, good question, Judith. I think a lot of businesses are suffering. I think we talked a couple of weeks ago about the fact that we're seeing it here, other businesses are. You can only force them to the extent that you're relevant awards and/or your contractual provisions enable you to go through a form of shutdown, including the most normal form of shutdown is around the Christmas period. Obviously, you need to evaluate that against your business needs, your operational needs during that period. But you can move forward to have a shutdown if you have the right to do so under the relevant instruments. If you don't, then it becomes a matter of agreement. And you can't typically force people to take leave.

There's also a communication element in that, which is if people are consistently not taking leave, you should be talking to them about their health and welfare, and encouraging them even if you can't force them to take leave. Finally, I think it's...we're all gonna have to keep a bit of an eye on this over Christmas in that, if people are saying, "I'm not gonna take leave, but I'm not really gonna work either," then you need to make sure that by now your systems and processes are in place to really understand what someone's productivity is just to make sure that you're not caught out by people bludging, I suppose.

Stewie: Ed, this one from Naomi, she's a client. "We have an employee that started in June that is currently doing over the 80-hour requirement for JobKeeper. However, the four weeks prior to first of July, they only did 20 hours due to border closure. This indicates that he is not eligible. Can we ask the ATO to allow him to be eligible for JobKeeper based on the current hours?

Ed: Hi Naomi. I'd love to answer that but I'm unfortunately not going to because it's probably a question that should go to your accountant, apparently.

Stewie: From Ingrid. "Any update on the IIR reform working groups announced by Christian Porter some months ago?"

Ed: Just the stuff I waffled on about earlier, which is much to do about nothing. Lots of noise and scrapping, fairly, unsurprisingly. But vis-a-vis small business. You've got COSBOA is speaking loudly about getting a Small Business Award, I don't think anyone seems to be saying that that's necessarily going to come into play, but that's their position. But really, I don't expect much to come out of it. It's like putting cats and dogs in a confined space and expecting them to come out friends. I just don't... Yeah, ultimately, you're gonna get through these things with strong leadership instead of what they seem to be doing, which is expecting people suddenly work things out and get on.

Stewie: And, Ed just a couple of comments to wrap it up for today.

Ed: Sure.

Stewie: This one from John. "Ed, my wife reckons she's been under 35 for at least the last 15 years. Do you think I can get the new wage subsidy for her?"

Ed: It's a very good question. You or your wife might be pleased hear there was something in the media about how the opposition is saying that they're not gonna approve the wage subsidy unless it's opened up for older people. So we'll see whether that's actually what happens to it, but it's got to be legislated. So tell your wife that regardless of her real age, currently, she's probably not eligible until that''s been properly agreed in Parliament.

Stewie: And finally, Ed, from Design Dental Group. "We just got a call from Daniel in Victoria, our Employsure contract.

Ed: Great. That's good, Design Dental Group. And you make me feel very self-conscious about my teeth. So maybe I need to come and see you while I'm in Victoria and get a checkup. Good. Thank you, everyone. I shall see you. Doing my orchestra impression on the Titanic next Friday. But please do tune in unless of course, you don't need any help. In which case, good on you. So, see you then. Cheers, guys.


What is the role of Fair Work Australia?

Fair Work Australia is the former name of the Fair Work Commission. The Fair Work Commission is Australia’s national workplace relations tribunal. The Fair Work Commission is the independent body responsible for:

  • setting wage rates;
  • creating and changing modern awards;
  • approving enterprise agreements; and
  • resolving disputes
What is the purpose of the National Employment Standards?

The National Employment Standards form part of a safety net that serves to provide fair, relevant and enforceable minimum terms and conditions of employment.

What are modern awards?

Modern Awards are legal documents that outline minimum pay rates and conditions of employment for employers and employees in a particular industry or occupation.

What is the Fair Work Commission?

The Fair Work Commission is Australia’s national workplace relations tribunal. The Fair Work Commission is an independent body, responsible for:

  • setting minimum wage rates;
  • creating and changing modern awards;
  • approving enterprise agreements; and
  • resolving disputes including unfair dismissal claims.
Who set up the Fair Work Commission?

The Fair Work Commission was established by the federal Labor government in 2009.

What is the role of Fair Work Ombudsman?

The Fair Work Ombudsman is an agency of the Australian Government that serves to provide advice and information in relation to the federal workplace relations system. The Fair Work Ombudsman has the power to enforce workplace laws. They may also seek penalties for breaches of workplace laws. The Office of the Fair Work Ombudsman is currently held by Sandra Parker.

What is the difference between the Fair Work Ombudsman and the Fair Work Commission?

The Fair Work Commission is an independent body, responsible for:

  • setting minimum wage rates;
  • creating and changing modern awards;
  • approving enterprise agreements; and
  • resolving disputes including unfair dismissal claims.

This is distinct from the Fair Work Ombudsman, which is responsible for:

  • investigates workplace complaints
  • conducting audits to ensure compliance
  • enforcing the Fair Work Act 2009.
What does the Fair Work Act do?

The Fair Work Act 2009 is the legislation that regulates the federal workplace relations system. The Fair Work Act 2009 sets out the terms and conditions of employment and sets out the rights and responsibilities of employees, employers and employee organisations in relation to that employment.

Why was the Fair Work Act 2009 introduced?

The Fair Work Act 2009 was introduced to govern Australia's workplace relations system and legislate for the entitlements available to Australian workers. The legislation aims to provide a safety net of minimum entitlements and enable flexible working arrangements and fairness at work.

What does the Fair Work Act 2009 cover?

The Fair Work Act 2009 covers ‘national system’ employees and employees. Employment that is not covered under the national industrial relations system is regulated by the relevant state legislation. Whether an employer is a national system employer depends on the location of the employment relationship (state or territory) and, in some cases, the legal status and business of the employer. The Fair Work Act 2009 covers the rights and responsibilities of employees, employers and employees’ organisations in relation to employment.

What are employer responsibilities under the Fair Work Act 2009?

All Australian employers are required to meet their obligations contained within the Fair Work Act 2009. The responsibilities are wide ranging and include, but are not limited, to:

  • abiding by the minimum entitlements contained within the National Employment Standards and any applicable modern award;
  • paying the appropriate wage;
  • keeping appropriate records (as prescribed within the Fair Work Regulations); and
  • not taking (or proposing to take) action against employees for prohibited reasons.
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