Archive for March, 2014

March 25, 2014

Best Practice for Relying on Fair Work Ombudsman Advice


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.

© 2014 Louise Vidler T/As The Professional Payroll Manager.  All rights reserved.

All materials contained on this web site not otherwise subject to copyright of other parties are subject to the ownership rights of Louise Vidler T/As The Professional Payroll Manager. Louise Vidler T/As The Professional Payroll Manager authorises you to make a single copy of the content herein for your own personal, non-commercial, use while visiting the site. You agree that any copy made must include the Louise Vidler T/As The Professional Payroll Manager copyright notice in full. No other permission is granted to you to print, copy, reproduce, distribute, transmit, upload, download, store, display in public, alter, or modify the content contained on this web site.

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March 23, 2014

Payrollers! Are You Prepared for the New Australian Privacy Principles in force on March 12, 2014?


privacy

The new Australian Privacy Principles came into effect on March 12, 2014 and replace the National Privacy Principles and apply to all organisations (with some exceptions), as well as Australian government agencies.

The objective of the Principles is to ensure that organisations manage personal information in “an open and transparent way” and some of the key areas that relate to payroll functions include:

  • All organisations must take reasonable steps to implement practices, procedures and systems to ensure the organisation complies with the Australian Privacy Principles and to provide a system of dealing with enquiries and/or complaints
  • All organisations must have a clearly expressed and up to date policy about the management of personal information, including:
  1. The kinds of information the organisation collects and holds
  2. How the organisation collects and holds the personal information
  3. The purpose of the collection, holding, use and disclosure of the information
  4. How an individual may access personal information and correct any information
  5. How an individual may complain about a breach of the Principles
  6. Whether the organisation is likely to disclose the personal information to an overseas entity
  7. If the organisation is likely to disclose personal information to an overseas entity, the countries in which that may occur
  8. Organisations must not collect personal information unless the information is reasonably necessary for one or more of the organisation’s functions or activities
  • Organisations must not collect “sensitive” information about an individual unless an individual consents to the collection and the information is reasonably necessary for one or more of the organisations functions or activities
  • If “sensitive” personal information is collected as a requirement by law or a “permitted general situation exists in relation to the collection of the information”
  • Where an organisation holds personal information that was collected for a particular purpose (the primary purpose), the organisation must not use or disclose the information for another purpose (a secondary purpose) unless the individual has consented, or the individual would reasonably expect the organisation to use or disclose the personal information for the secondary purpose, or if the use or disclosure of the personal information is required  or authorised under an Australian law
  • Before an organisation discloses personal information about an individual to an overseas recipient, the organisation must take all reasonable steps to ensure that the overseas recipient does not breach the Australian Privacy Principles
  • An organisation must take reasonable steps to ensure the integrity of all personal information to ensure the information is accurate, up to date and complete
  • An organisation must take reasonable steps to ensure the personal information is protected from misuse, interference and loss and from unauthorized access, modification or disclosure

If an organisation refuses to correct the personal information as requested by the individual, the entity must give the individual a written notice that sets out the reasons for the refusal, the mechanisms available to the individual to complain about the refusal and any other matter prescribed by the regulations

All organisations must take reasonable steps to implement practices, procedures and systems to ensure the organisation complies with the Australian Privacy Principles and to provide a system of dealing with enquiries and/or complaints

All organisations must have a clearly expressed and up to date policy about the management of personal information, including:

If you are a Payroll Manager or hold a position of responsibility for the management, security, disclosure and use of personal information you can be fined under the Act for non-compliance, apparently up to $340,000.  I’ve not studied the Act yet to understand whether this is per offence, which could be a devastating blow for an individual who is responsible for the disclosure of a substantial numbers of employee’s information, where there is a security breach or a non-compliant business practice.

If your organisation hasn’t made a big deal out of the new Australian Privacy Principles as far as payroll is concerned, especially if you outsource any part of your payroll function, you have a couple of days to establish how your payroll function will ensure compliance.

According to this Smart Company article on 5th March 2014 “The laws will apply to businesses that turn over more than $3 million a year and collect personal data.

However, there are some small businesses which turn over less than $3 million that will still need to abide by the new legislation. For example, the laws apply if the business is a health services provider, related to a larger business, trades in personal information, or is a contractor which provides services under a Commonwealth contract.”

For more information on the changes to the Privacy Act, visit the Office of the Australian Information Commissioner (OAIC) website.

If you are unsure whether the Privacy Act applies to your business, check out the Privacy Checklist for Small Business from the OAIC.

More articles on the Australian Privacy Principles from Australian Law Firms:

Australia: Are you compliant with new privacy laws coming into effect 12 March 2014? By Dan Brush of CBP Lawyers on mondaq.com

Australia: Major changes to Australia’s Privacy Act: Why they matter for foreign IT suppliers doing business in Australia by David Smith of Corrs Chambers Wesgarth on mondaq.com

Australia: Timely Guidance from the Privacy Commissioner – APP Guildelines Released by Sophie Bradshaw of Corrs Chambers Westgarth on mondaq.com

If you have any questions you would like to raise personally, please email Louise Vidler at The Professional Payroll Manager.

© 2014 Louise Vidler T/As The Professional Payroll Manager.  All rights reserved.

All materials contained on this web site not otherwise subject to copyright of other parties are subject to the ownership rights of Louise Vidler T/As The Professional Payroll Manager. Louise Vidler T/As The Professional Payroll Manager authorises you to make a single copy of the content herein for your own personal, non-commercial, use while visiting the site. You agree that any copy made must include the Louise Vidler T/As The Professional Payroll Manager copyright notice in full. No other permission is granted to you to print, copy, reproduce, distribute, transmit, upload, download, store, display in public, alter, or modify the content contained on this web site.

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