I came across a press release a little while back from Senator Eric Abetz, Minister for Employment titled Small Business Able to Rely on Fair Work Ombudsman Advice. The opening sentence of this press release reads:
“In a win for small business, the Minister for Employment Senator Eric Abetz today announced that small business operators will now be able to rely on advice from the Fair Work Ombudsman without the fear of prosecution, should the information be incorrect.”
My thought on this is simply… How Ridiculous!
1. Ridiculous that you can’t get correct advice from Fair Work in the first place.
2. Ridiculous that the press release leads small business operators to think that they won’t be prosecuted for following incorrect advice, because Fair Work are reluctant to put their advice in writing, which makes it very hard to build a case on the advice they actually gave you at the time.
3. Ridiculous that a statement like this will lead small business to unrealistically expect that they can prove the content of a phone call if a case was actually made against them by Fair Work.
4. Ridiculous because my experience has shown me that you need to ask the right questions, to get the right advice from not only Fair Work, but of all payroll and employer association advice lines.
My advice to anyone seeking information from Fair Work, that involves a compliance issue that you could be later prosecuted or fined for (which in reality is very question you would ever have of the Fair Work Ombudsman), is that you get that information in writing as it may ultimately become evidence that you require to defend your actions.
To ensure you don’t venture into the grey area on seeking advice, it would be wise to follow these four best practices when seeking legislative advice:
1. Do your research – don’t go in blind. Before you make an enquiry with Fair Work, investigate your question as much as you can via the Fair Work website and Google to understand the anomalies that may exist in relation to your enquiry, because most HR, Payroll and Industrial Relations questions rely on understanding multiple pieces of legislation and awards, and more often than not multiple clauses and sub clauses of each of these to reach your final definitive answer.
My own experience with many self-proclaimed payroll “subject matter experts” and having made more phone calls to Fair Work than I can remember, has proven time and again that misinformation is rife.
2. Beware of how you frame your questions and what questions you ask. Asking the right questions is essential, which is an awfully hard ask if you are inexperienced and are expecting your information provider to be the holder of all wisdom.
It is better to ask ten questions than one, to ensure you and the person providing the advice completely understand the questions, the intent of the questions and the answers being offered. There are quite often “but if”, or “except in the case of” exceptions that apply to employment law and you may not be receiving all of the information you require, if your questioning is misleading or incomplete.
Again, this is why it’s important to research and have a little background knowledge on the question/s you are trying to answer and to always think “how will this advice stand up in court”.
3. Get it in writing! Everything in payroll and HR is a potential legal issue and your best defence in a legal matter is evidence. Again, when seeking advice, utilise email where you can for a clear audit trail and ask to be directed to documented evidence of the advice you are receiving, so you can print that out as well, such as the published pay rates, or the clauses of the applicable legislative documents, or a publication on the Fair Work website.
Fair Work have made it impossible to get a direct response to a question in writing. They offer only a telephone advice line, or an out of office hours email service, from which they will ring you back within 5 days (which someone at Fair Work mistakenly thinks is customer service). They used to have an online chat facility, that enabled you to print out the conversation, but that’s been shut down. The only “in writing” response you can get from Fair Work these days is to print out information they have available on their website.
Seeking legislative advice via telephone (from any source including employer and payroll/HR associations) is a last resort and where this is your only option, you should ensure your questions are all documented and as each question is answered, document the advice you receive. The date and time of the phone call also needs to be documented, along with the full name and position of the person you spoke to.
4. Double Check the Advice… Any advice that you receive from an individual should be verified and with the volume of information freely available on the internet, verification is not hard to accomplish. Whether that individual is your payroll officer, an accountant, a Fair Work representative or a telephone advisor from an association, you cannot be sure of their ability to correctly interpret legislation or their wealth of experience in doing so.
I’m probably not telling you anything new, by stating that employment legislation is complex, multi-faceted and relatively difficult to stay fully abreast of unless that is your full time role.
When you seek advice from an organisation who professes to be the font of knowledge you would expect that their advice should be gospel, but that is not always the case.
The law holds the owners, directors and responsible officers of the business liable for compliance and ignorance of the law is never an excuse for non-compliance. As such it is your responsibility to ensure you have full information, correct interpretation or a damn good defence case.
If you have any questions you would like to raise personally, please email Louise Vidler at The Professional Payroll Manager.
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