Australian Convenience Store News

Your staff can be either your greatest asset or your worst nightmare. Employment law is one of those subjects like religion and politics and often a personís point of view is determined by whether or not they are an employee or an employer.

There is always some debate arising from employment issues and everyone has an opinion. However, the fundamentals may be overlooked. The sources of law governing employment in Australia are:

The inter-relationship between these sources of employment law are complex and may conflict. Information can be obtained from government departments and industry associations or you should obtain advice privately through your solicitor or accountant.

Contractor v Employer
Many businesses state that people perform work for them on a contracting basis and are independent contractors and not employees. I believe that 90% of these arrangements are nothing more than shams. The Federal Government for taxation purposes has effectively closed this distinction and if a contractor as a general rule of thumb performs more than 80% of its work or derives 80% of its income from one source then itís deemed to be an employment arrangement.

Awards
As we all know, awards set detailed minimum standards for payment and work conditions and they confer benefits such as sick leave and maternity leave. There are State and Federal Awards. Some legislations require employers to display a copy of any Award relevant to that workplace, at that workplace.

Most Awards require that the employer provide the worker with the following information on a pay slip with every pay:

Awards will usually specify any extra payments which should be made in addition to the Award wage, (e.g. meal, clothing, travelling, allowances). Awards often state that four weeks annual holidays are to be given to the worker with an additional 17.5% leave loading and this entitlement arises on the anniversary of starting work. Sick leave is a common award benefit often at the rate of five days per year. Usually the worker must have worked a certain period, say three months, before being entitled to any sick leave. People should also be aware of Long Service Leave. If a worker has been employed in the same business by different employers for over 10 years, even though that business may have had more than one owner, that person is entitled to Long Service Leave.

Discrimination
Legislation makes it illegal to discriminate on the grounds of race, sex, marital status, physical impairment, intellectual impairment, homosexuality and age. Discrimination in employment means denying a person equal treatment in the area of work for reasons other than those that relate directly to the job. Typically such legislation covers:

Sexual Harassment
An increasing area of argument is sexual harassment. Sexual harassment is sexual conduct that is unwelcome and uninvited. It can take the form of smutty jokes, taunting someone with constant talk about sex or asking about their sexual activities, staring and leering, or actual physical contact. Repeated propositioning or the requesting of sex in return for a job or promotion is also regarded as sexual harassment. Both men and woman can be sexually harassed and increasingly itís men. A person can be harassed by an individual, or a group of people at work. The law states that employers are liable for their own misconduct and for the misconduct of their staff.

Safety & Health
There are a number of acts and regulations imposing minimum standards for safety in the workplace, particularly regarding the fencing off of dangerous machinery, safe practices on building sites, basic sanitation and other occupational health requirements. Each State and Territory has established a system of compulsory insurance for employers which pays compensation to workers injured in the course of their employment, or travelling to and from work.

Duties of the Employee
Surprisingly some employers forget about the obligations that are imposed upon the employee. Some of those obligations are as follows.

To obey lawful commands:-
If an employer issues an order within the general area of work which the employee has been hired to do then the employee must obey, unless the order involves the employee in illegal activity, would expose them to undue danger, or requires doing something outside the employeeís job description. For example, an order to drive a vehicle where the driver is under age or doesnít have a licence is unlawful, as is an order to a typist to do the personal shopping for the employer.

To work in a careful and competent manner:-
When a person applies for a job the law takes the view that the person is saying to the prospective employer: "I can do the job, I have the skills which the job requires." So the law implies a term into the contract that the employee will take reasonable care and will perform the work in a competent manner. The standard of care demanded will vary with the position, and a failure to work with the appropriate standard of care and competence will expose the employee to dismissal.

To account to the employer
First, the worker must account to their employer for all money or property (such as tools, materials, fuel etc) received in the course of their employment. One aspect of this is that a worker cannot take things that belong to the employer, even if they are "left over". Nor should an employee "borrow" property belonging to the employer, for example take tools home on the weekend to fix their own car. If they do so, a worker will be liable for any damage caused to or by the equipment. If a worker is hurt when using it without authority, they probably will not have a claim against the employer. They also leave themselves open to charges of theft.

This duty also means that a worker cannot use the employerís equipment for private gain, for example, using the employerís tools outside working hours to do odd jobs for someone else. Profits made in this way will have to be paid to the employer.

As a general rule, everything an employee makes belongs to the employer, although there may be exceptions peculiar to the custom and practice of a particular industry, (for example hotel staff can usually keep tips).

To keep faithful service
Basically, a worker should not tell others any details of the employerís profits or losses, customers, special methods or techniques used, or any information about the business, which might help a competitor. Such "inside" knowledge is distinguished from any skills, expertise, or general knowledge that the individual may acquire or develop in their own work. It is legitimate for an employee to sell their own expertise, but they should not profit from confidential information gained from a present or previous employer.

To make inventions available to the Employer
A worker who, in the course of employment, makes an invention or discovery, whether employed to undertake that particular activity or not, must account to the employer for it. The employee holds the invention on trust for the employer. Most large organisations ensure that the inventing employee shares in the benefits of the invention. The question of copyright is dealt with in legislation. Broadly speaking, the author owns copyright except where the work is made by an author in the course of a contract of employment. An invention or discovery made outside the workplace and outside the work hours is the property of the worker but they may have to prove that the research was done out of work hours.

To disclose information to the Employer
There is not a general duty for an employee to give information about themselves or co-workers to an employer. However, someone employed in a supervisory capacity would be under an obligation to tell the employer about co-workerís activities and any other matters affecting the business.