Can we insist that staff…
With the widespread changes we’re seeing across the Community Services Industry comes significant confusion about the impact on businesses.
As a direct result, the CSIA is regularly being asked a plethora of questions from community service organisations regarding how they go about legally responding to some of the arising issues.
We’ve taken some of these questions to our friends at Hynes Legal to try and get some context and guidance around resolving them.
Our Editor, Louise Hughes, recently sat down with Kristin Ramsey, the Director and Head of Hynes Legal’s Employment and Workplace Relations Practice.
Kristin offered up so much practical and insightful advice that we have turned the interview into a series of posts over the coming period.
We’re starting with a very common question: Can we insist that staff use their own phones and cars under the changes across the Industry?
Here’s the interview
So, my answer to that is… yes.
You can make it a condition of employment that people have access to a mobile phone for use for work purposes.
It’s no different to making it a requirement of a role that the employee has to have a driver’s license.
For any new employee who comes in, if you’ve clearly set out that they need to have a mobile phone (or smart phone) and this is agreed to in the employment contract, then you could enforce that.
In most cases where an employee is using their personal phone for work purposes you are likely to have to pay them some form of allowance. Or otherwise reimburse any costs that they incur when using the phone for work purposes.
It may also be possible to wrap up a phone allowance in an employee’s salary (provided their salary is high enough to compensate them for all of their entitlements). The issue of payment / reimbursement is sometimes dealt with in industrial instruments or otherwise in the employment contract.
For most employers (particularly those with larger workforces) it will be easier to work on a salaried or allowance basis rather than a direct reimbursement model.
What about staff who are already working for you?
That’s the more difficult part.
You can’t make your staff go out and spend money.
There are provisions in the Fair Work Act that say an employer can’t unreasonably require an employee to spend all or part of their wages in a particular way.
If your requirement is that employees have a smart phone for work purposes, it’s possible/probable that a large percentage of your workforce will already have that smart phone.
And the fact that they then use it for work and get some sort of allowance or reimbursement from their employer, they may very well see as a positive.
And if you ask them to use their own phone and they consent to this, then there’s no problem.
For existing employees who don’t have a smart phone (who would then have to go and buy one) or who don’t want to use their personal phone for work purposes, you probably couldn’t force them to do it.
You could say: we would like you to have a smart phone and use it for work and this is what we will pay you to compensate for the use of that phone.
But if ultimately they won’t agree to this, then it is the employer’s responsibility to provide the phone if it is needed for them to do their job.
The same principles apply with motor vehicles.
And then you end up in a bit of a pickle when some staff are using their own phone and some are tapping into shared resources that belong to the organisation. Is there a fairness issue at that point?
Yes a situation where some employees use their own phone and others use phones owned by the business could create some difficulties but I don’t consider that it would create any issues of unfairness between employees.
If we are both required to have a phone for work and I bring my phone and therefore get paid an allowance from my employer to do so, and you don’t bring a phone, you get given a phone to use at work, we should both end up in the same financial position at the end of the day.
Like with any of these things, it’s all about how it’s explained to the employee.
So, if you’re going to introduce a requirement that employees must have a personal smart phone and use it at work – for new employees you would need to make sure that your job ads, position descriptions and employment contracts clearly spell out the requirement; and that the employment contract states how the employee will be compensated for the use of that phone.
In relation to people already in your organisation, you will obviously have to give them an explanation as to why you are introducing the requirement and how they will be affected or possibly even benefit.
And on the phone issue, I know that I’ve worked in places before where there’s been the discussion of people using their own phones instead of having access to a company phone.
Some of the discussions have been around: does that mean that I’m always at work because I always have my personal phone on and it’s not just a matter of turning my work phone off when I walk out the door.
What sort of issues does that bring up?
I guess it depends on how you’re asking people to use phones.
So, my understanding is that the phones aren’t necessarily for clients to call the employee directly. They’re more for the checking of scheduling and rostering, perhaps to report on start and finish times with clients, maybe even to assist in showing the direct route from one client to the next.
I don’t think that that in itself creates any huge issue.
But if you’re saying to employees that you’ve got to use your personal phone for work purposes and the clients are calling them on that phone outside of their working hours, then that could create some problems and could trigger call back payments or even overtime payments.
So, I wouldn’t think that an employer (or an employee) would want a situation where clients have individual employees’ personal phone numbers.
There are things to consider, though, like data security.
If it’s a company phone, IT departments put all sorts of restrictions and tracking devices and things on phones, and they have the ability to wipe them when they’re lost.
If you’re telling staff to use their own phones, you don’t know who might be able to have access to information that’s on that phone. You also have less control over how that phone is used.
That may or may not be a problem for some businesses. It comes back to what you’re asking the employees to use the phone for.
If you can tap into information about the clients and their details, what security measures are on that phone to stop that information from being accessed by somebody else?
You also need to think about how to meet your obligations under the Privacy Act in situations where client information is stored on the phone.
Back to cars
The same principle applies to cars as with phones.
So, if you want to say that it’s a requirement of the job that you have a car and use your own car, you can certainly make that a requirement for new recruits.
And of course, you would have to provide some form of reimbursement for the use of that car which normally is a kilometre allowance as per the relevant industrial instrument.
But like with the phone, the trickier issue is whether you can require an existing employee to use their own car for work purposes.
Generally you are not going to be able to force existing employees to use their own car for work purposes if it wasn’t a condition of their employment that they have a car available to use for work.
So, like the with the phone, you would take the same approach of explaining to employees why you want them to use their own cars and what you would pay them to compensate for that use.
The choice then is essentially theirs.
The kilometre allowance under most industrial instruments is relatively generous and many employees are likely to be quite happy to use their own car and get the allowance.
If they don’t have a car or don’t want to use their car for work purposes, in most cases you aren’t going to be able to enforce the requirement.
What are some of the issues with using personal cars?
With phones, we talked about data security and perhaps who has access to the phone number, and when people can call, and what they’re using it for and things like that.
With the car, the key issues involve health & safety, liability and insurance.
With company cars you have much greater control over how the car is maintained, what insurance is in place and better visibility on its roadworthiness.
With personal cars you are likely to have less control or visibility regarding these matters.
If you’re going to require employees to use their own car, you need systems and processes in place to make sure that car is properly insured, that it’s roadworthy and that employees (and third parties) aren’t at any greater level of risk as a result of the employee driving their own car compared to a company car.
Policies and employment contracts also need to set out who is responsible for which costs and how the employee will be compensated for using their own car.
So who pays in the event of an accident?
If an employee has an accident whilst driving for work purposes, in most cases the employer will be vicariously liable for any damage or injury sustained by the employee and any third party irrespective of whether the employee was driving a company car or the employee’s personal car.
Whilst some employers try and make the employee pay any insurance excess that may be payable (or even for the full cost of repairs) in most situations this is inappropriate and could be in breach of the Fair Work Act.
The only time an employee should be out of pocket in relation to an accident that occurs whilst driving for work purposes is if they have been reckless, broken the law (ie drink driving) or acted in breach of any company policy. If the accident is simply that – an accident – in most cases the employer will have to pay.
These issues aren’t new issues and they haven’t come up just because of current reforms.
The recent reforms, however, have led to an increase in demand for employees and bigger workforces – which has resulted in many employers looking at creating requirements for employees to have and use their own phones and cars. It’s simply to keep up with the demand for services and also reduce the capital employers have locked into to such assets.
All of the issues highlighted above are manageable provided employers sit down and think about the situation carefully and seek appropriate advice before making decisions to implement such requirements.
- Yes, you can require new recruits to use their own phones and cars for work purposes
- You do this by making it a condition of their employment which means the requirement needs to be set out in job adds, position descriptions and employment contracts
- You can’t force an existing employee to agree to use their own phone or car for work purposes – but you can discuss the requirement with them and allow them to ‘opt in’
- You need to provide reimbursement or compensation to the employees who use their own phones and cars for work
- It is vital to implement systems, policies and processes that manage the risks and issues involved
- Be alert to the risks that exist now but that will be exacerbated as your workforce grows.
Hynes Legal is a well-established commercial law firm with a leading national practice in the Aged Care, Retirement Village and Senior Living sectors.
They specialise in advice on Consumer Law compliance and risk management; particularly in respect of Home Care, NDIS and Community Services.
Hynes Legal has a range of products and services to support Service Providers in the provision of Homes Care services, including Home Care Agreements and NDIS Service agreements.
Contact Hynes Legal on (07) 3019 0500 to discuss how Hynes Legal can support your readiness for the move to the consumer law environment.