This is Part III of our interview with the Director and Head of Hynes Legal’s Employment and Workplace Relations Practice, Kristin Ramsey. In this final instalment, Kristin speaks to organisational obligations and restraints when managing change and supporting staff during constant reform.
The change seems endless.
Every corner of the Community Services Industry is either directly under the spotlight, or being impacted by the changes to those that are.
Never mind the NDIS rollout, this year we’re also expecting change resulting from:
When organisations are under so much pressure, and are focused on finding workable solutions, how can they be sure they’re meeting obligations to staff?
What are organisational obligations in terms of managing change and supporting staff to make the change?
Workplace change needs to be managed very carefully, otherwise there is a risk of industrial unrest, disputes and diminished morale.
Certain changes are likely to trigger consultation obligations under modern awards or enterprise agreements. Changes regarding terms and conditions, hours of work, composition of the workforce, job opportunities or job security are all changes which organisations need to consult with employees on.
(1) Explaining to employees:
(2) Providing the above information to employees in writing.
(3) Giving employees an opportunity to consider the information provided, ask questions and provide feedback on the changes (including their effect).
(4) Considering any feedback provided or issues raised by employees.
Employers also need to be aware that even with consultation there are some things that can only be changed with the individual employee’s consent – for example under most industrial instruments, hours of work for part-time employees can only be changed with consent.
In addition, there may be some things businesses can’t change (even with consent) – for example, in most situations a business couldn’t reduce the minimum engagement period under the applicable industrial instrument, even if the employee agrees to the change.
Some organisations will need to talk to someone like you, Kristin, and consult on a case-by-case basis. Some issues will just be too specific.
I would always encourage an organisation looking to make workplace changes to seek advice on whether it is legally possible to make the proposed change and is it a legally compliant process for implementation.
Certainly, some businesses will need to restructure?
With the role out of NDIS is it likely that there will be a rise in roles relating to marketing and client engagement etc. and perhaps a reduction in other roles.
The new roles are likely to form around the organisation’s need to get out there and tout for business and manage client relationships.
So, restructuring and looking at the structure and the types of roles you have is going to be an important element in embracing these changes.
That may very well lead to a situation where you do have to talk to people about changing their job, or even looking at redundancies. These discussions need to be handled carefully and you need a good understanding of what your legal obligations are.
As a general rule of thumb, when restructuring or making a role redundant, organisations need to:
If you decide you need a position a few months after you made it redundant, how long do you have to wait before you can reinstate it?
There is no set time frame. It would not be appropriate however to make a role redundant if you are already planning on refilling the role. Redundancy should only occur when you no longer require the role for the foreseeable future. If you do reinstate a role after making it redundant – you need to be able to demonstrate what has changed operationally from when the decision was made to make the role redundant.
If the organisation is making redundancies because of budgetary reasons rather than operational reasons and they feel like they really do need every position, what are the legalities around deciding which positions to remove? For example, merging functions into new positions etc.
It is perfectly acceptable for organisations to merge roles or redistribute duties in order to reduce head count and save on wages costs. This will often result in the redundancy of one or more roles. In this situation, employees need to be consulted, and a fair process applied in respect of working out which roles (and which employees) will be affected by the changes.
What is actually being made redundant - the person or the position? Can a person stay in an organisation if the position they’re in is redundant? What if organisations are trying to use redundancies to remove difficult personalities?
It is the role and not the person that is redundant.
Where a person’s role is redundant, the organisation has an obligation to give consideration to whether the employee can be redeployed into another role. If there are no suitable roles, then the employee’s employment may be terminated for reasons of redundancy (subject of course to meeting consultation and other legal requirements).
Sometimes organisations try and use redundancy as a means of removing an underperforming employee from their role (rather than going through a performance management process). This is not an appropriate use of redundancy and could result in legal claims such as unfair dismissal.
If a number of positions are made redundant (say all from one team for example) and a new position (perhaps combined functions from the former team) is made available on the organisational chart due to restructure, can that new position be handed to someone who was in one of the redundant positions? Are there legal concerns here?
When groups of employees are being made redundant and new roles being created, organisations need to ensure a fair and consistent process for both selecting employees for redundancy and filling the new role.
Consideration needs to be given to whether any of the redundant employees could perform the new role and therefore be redeployed into it. Where more than one person is potentially suitable for the role, it would be prudent to undertake an application and interview process before selecting someone for the role.
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.