Category Archives: Uncategorised

Employee status – don’t be in for a super shock

When is an employee an employee?

It might sound weird but this is a question you may need to ask, especially in relation to superannuation.

One of the buzzwords in the Fair Work Act 2009 was ‘sham contracting’.

A key component of this relates to whether a worker is deemed an employee for the purposes of your obligations under the Superannuation Act.

You may have engaged a person whom you believe to be a contractor, only to later have a payment claim lodged against you for the payment of superannuation.

So when is an employee an employee?

Below is a quick guide to determine your obligations as an employer:

  1. Is there a commercial arrangement in place (Contract of Service Agreement)?
  2. Do you allow that person to work elsewhere?
  3. Does the worker have control of how and when the work is completed?

If you answered NO to any of the above three questions, then you may be in for a shock!

For the purposes of superannuation, this person would be deemed an employee and as such you would need to pay superannuation.

If you’re not sure or have concerns, contact us at Human Outsource and we can help you sort this out.

HR Consultants – Everything you need to know!

All you need to know about HR Consultants; from when to know you may need to seek an eternal HR consultant right down to what you should be looking for.

When it comes to managing staff and dealing with complex HR issues within the workplace, it can be extremely time consuming and emotionally draining. Not only that, but the workplace law and heavy compliance burdens surrounding the processes of hiring, managing, developing and exiting staff leaves managers open to danger.

It is important to remember that with HR, it is not just about risk. If people management is a secondary responsibility for you or someone else in your organisation and you lack access to professional human resources consulting services, it might also be costing you dearly in unrealised potential and productivity if you don’t have the time to apply to it.

This is where a HR consultant comes in, to provide a professional level of HR support and allow business owners to have peace of mind when it comes to staff management and HR issues.
If you are someone who is looking to engage a HR Consultant, this is for you. We have summarised some key points to assist you in understanding the point at which you may need to engage a HR consultant, the advantages in doing so and what to look for.

1. When to seek external HR consultants in your business
• When you need assistance in ensuring you are legally compliant as a company
• When you require clarity in understanding your responsibilities as an employer/manager.
• When HR issues are building up and taking away from your everyday responsibilities
• When you are facing issues, which are not quite for a lawyer but above your knowledge
• When you want to steer clear of the Fairwork Commission

2. Reasons for outsourcing your HR
• When you do not have the resources or demand for a full-size HR department
• If you are a small – medium size business and do not require a full-time, in-house HR Manager
• When you do not have the capacity to take on additional work such as HR which requires a lot of time and attention.

3. Advantages of hiring an external HR consultant
• You can save on cost
• You can save on time
• Allows a fresh/expert set of eyes to run over your company policy and procedures
• They can provide a clear and unbiased perspective on issues within the workplace
• They provide you with peace of mind – knowing your business isn’t sitting on an industrial relations or workplace health and safety time bomb.
• Instill confidence – knowing your people are happy, engaged, professionally developed and looked after.
• Security – knowing your HR policies and procedures will stand up when challenged.

4. How to go about outsourcing your HR
• Do your research – ring around and meet with various companies

5. What to look for in an external HR consultant
• Previous experience – should be listed on their website or LinkedIn
• Referrals and testimonials from current or previous clients
• A friendly, personable consultant who you could picture having in your team every day.

Human Outsource is a professional HR consulting firm based in Brisbane, providing human resources consultancy solutions Australia-wide.

Discover the benefits of quality outsourced HR consultants, products and services, based in Brisbane. Your business will thrive more than ever with the experienced HR professionals at Human. Get in touch with your new HR consultant today.

Case Alert: March 2018

Welcome to our new case alert. Each month we will bring you a summary of a case we think may be relevant to you. This month’s case alert will provide guidance to you on issues you may face in the workplace, particularly around redundancy.

Court finds worker’s complaint unrelated to redundancy

A Gorgon LNG project worker has lost his adverse action bid after a court found his complaints about offensive and racist conduct played no part in a decision to make him redundant.

The sheet-metal worker, who was among 116 Hertel Modern Pty Ltd employees listed for redundancy on central Queensland’s Barrow Island, in the middle of last year, alleged the painting insulation and fireproofing contractor dismissed him because he complained about a colleague and his supervisor.

The metal worker told the Federal Circuit Court that after telling a supervisor in June last year that a colleague made racist and demeaning comments to him, he later overheard the supervisor telling his colleague words to the effect that he did not “give a shit about his complaint”.

Following a confrontation, after which his colleague posted a derogatory statement directed to him on Facebook, the metal worker spoke to two construction managers and was told the employer would move the colleague to a different workshop.

Within a week of the metal worker lodging a formal complaint with Hertel’s HR manager in early July, the company made him redundant.

The metal worker alleged Hertel dismissed him in breach of s340 of the Fair Work Act, because he exercised a right under the company’s enterprise agreement in complaining about workplace bullying and harassment.
However, a Hertel superintendent gave evidence that he personally put the metal worker on a redundancy short list after learning that due to a medical condition involving vertigo he could not go on site and work on high scaffolding.

The metal worker had refused a request by the superintendent to go out on site in June last year due to his medical condition, which the superintendent accepted after confirming he had lodged a medical certificate.
The HR manager said when he became aware the metal worker was on the short list, although he did not know why his name was on it, he was concerned it “would look unfair; as though Hertel was punishing” him because the colleague at the centre of his complaints was not on it too.

On the HR manager’s advice, the colleague was also added to the list and subsequently made redundant, along with the metal worker.

Federal Circuit Court Judge Justin Smith found the complaint “played no part in any action taken” by the HR manager to leave the metal worker’s name on the redundancies list.
He accepted the HR manager’s evidence that it was “usual practice” to leave it to managers and superintendents to decide who to short-list for redundancy, and that they did not provide their reasons to him.

Given the frequency of mass redundancies, the fact the HR manager had responsibility for many employees and had worked for the AMWU for eight years, Judge Smith said it was also “unlikely” that he would have made someone redundant to simply get rid of a complaint.

Noting the HR manager had “already dealt with the complaint quickly and efficiently” by speaking to the metal worker and the colleague on the same day he received it, and was awaiting further information, the judge said this was “not the action of someone who readily shirks responsibilities or takes an easy, but unlawful solution”.

Of the superintendent’s decision to earmark the metal worker for redundancy, Judge Smith said his response was consistent with his “duty of care to other workers and [the metal worker] himself on the site” and it was unlikely the “carry on” between the two workers played a role in it.

He said the context of the redundancies also bolstered the conclusion, as the workshop tasks covered by Hertel’s contract were winding up towards the end of the construction phase, while sheet metal workers were employed “to do the whole of that job, not just one part, such as the workshop component”.

Hull & Anor v Hertel Modern Pty Ltd [2017] FCCA 2579 (2 November 2017)

Sourced from:

If you have any questions regarding redundancy or any other workplace issues, please contact us. We are here to help!

Termination – it’s all about the process

Termination is not that hard really.

Many business owners/managers have a perception that it is almost impossible to terminate an employee these days.

However, it is not that difficult if you follow some simple steps.

Terminating is all about process. If you decide to terminate someone and have no process behind the decision, then a successful claim against you with the Fair Work Commission is more likely.

However, if you have a simple process and follow it, you will be in a much better position even if you are challenged through Fair Work.

We have helped our clients countless times in ensuring a process is implemented and followed and we are yet to have a challenge succeed.

Here’s what you need to do:

 Implement a simple process that outlines the steps to be taken when disciplinary action is required.
 When necessary, follow the process.
 Ensure you provide frank feedback to the employee regarding unsatisfactory performance.
 Document any action taken.

Failure to follow your own process will lead to complications later on.

If you are unsure what to do or would like to put some simple steps in place to ensure you have a process that is robust, contact us at Human Outsource for help.

Case Alert: January 2018

Welcome to our new case alert. Each month we will bring you a summary of a case we think may be relevant to you. This month’s case alert will provide guidance to you on issues you may face in the workplace, particularly around social media and cyber-bullying.

Lorna Jane worker loses $570K claim over alleged Facebook bullying

A Lorna Jane employee with a pre-existing personality disorder has failed in her $570,000 bid to hold the retailer liable for a manager’s Facebook spray and alleged bullying she claimed triggered her condition.
The store manager of Lorna Jane’s DFO store in Skygate, Brisbane, claimed her supervisor, the retailer’s learning and development manager, bullied her from July 2012 until her doctor put her on stress leave that December.
The store manager alleged the development manager called her “cheap”, a “generator” and other names on Facebook, made disparaging comments about her weight and was dismissive.
In one Facebook post, the development manager said she called “the people I despise” generators “purely because they fill their days generating more problems for me to deal with” and noted they were “similar to mutants – people who are genuine oxygen thieves”.
In another post, she said it was “difficult to soar with the eagles when your [sic] surrounded by turkeys”.
The store manager claimed Lorna Jane Pty Ltd was liable for her psychiatric injury because it was vicariously liable for the store manager’s behaviour.
It was also directly liable for the alleged actions, she claimed, because it was “on notice” after an email in which a resigning worker said the development manager gave the store manager a “hard time”.
Seeking $570,000 as damages for negligence, she also claimed lifting heavy boxes caused her incapacitating external haemorrhoids.

However, Queensland District Court Judge Greg Koppenol dismissed her application, finding she was “a most unreliable witness” and the evidence did not support her bullying claims or the alleged consequences.
He said when the store manager alerted a Lorna Jane senior officer to the posts, the retailer immediately made the development manager remove them, removed the store from her control and changed the reporting structure.
Judge Koppenol also rejected her submission that Lorna Jane was vicariously liable because it had an anti-bullying policy acknowledging the significance of bullying via social media.
Finding the development manager had not targeted her, he said there was also no evidence the “personal posts on her personal Facebook page” were made with Lorna Jane’s permission, were known by Lorna Jane to have been made at all or were made in the course of, or incidental to, her employment.

No proven causation

In dismissing her application on the basis she failed to establish direct or vicarious liability, Judge Koppenol said had she succeeded, she would also have needed to establish causation on the basis that the psychiatric injury risk was foreseeable and not insignificant; and if Lorna Jane had warned and appropriately counselled her, this “probably would have protected her from psychiatric injury”.

He said there was no reason for Lorna Jane to suspect the store manager was at risk of psychiatric injury, noting an employer was “not expected to be a mind reader” and that the woman “portrayed herself as confident and experienced” to get the job.
Psychiatrists’ evidence also found that due to her mixed personality disorder, removing workplace stresses would not necessarily have protected her because she “could have developed her psychiatric condition at any time and … independently of the things that allegedly happened at work”.

Robinson v Lorna Jane Pty Ltd [2017] QDC 266 (3 November 2017)

Please contact us for more information on how we can assist you.

Sourced from:

Smart Recruitment Just a Click Away

Welcome 2018!

Some of us may be returning back to work this year, with the important task of recruiting new team members.

Finding talent in this technologically advanced society has gone beyond placing an ad on Seek.

Social media cannot be ignored as an avenue for connecting with prospective employees.

Employers should consider all available options and plan a recruitment campaign to attract the right talent for their organisation.

Here are some simple helpful tips:

1. Think outside the norm. Seek is essential but what about Facebook, Twitter and LinkedIn as other alternatives? It’s in your best interest to find out how these platforms could work for your business.

2. Don’t forget to talk to people about the role you have available. There’s nothing like word of mouth advertising to get the ball rolling.

3. Make your advertisement stand out. Provide enough detail to pique the interest of a prospective candidate – how great it is to work at your organisation, location, skills required, salary package etc.

4. Follow up leads found on social media. Technology alone is not going to cut it. Contact prospective candidates and be prepared with some simple questions that will quickly sort the ‘wheat from the chaff’. An A+ profile page may not translate to an A+ employee.

Getting recruitment right the first time will save your business a lot of time and money.

Investing some thought and effort into the process will reap rewards for your organisation.

If you require assistance or support in recruiting new staff members for your team, please contact us, we will be more than happy to help.

Work Christmas Parties

Christmas is fast approaching and with that in mind we need to consider our policies regarding employee behaviour during the silly season.

Your employees have worked hard throughout the year and it’s time to let down your hair and celebrate your achievements.

However, the staff Christmas party isn’t an open invitation to disregard what you would consider to be unacceptable behaviour at any other time of the year.

You have a duty of care to your employees to ensure they are safe and your business reputation is upheld.
No-one wants to be the Grinch but your workers need to know very clearly what is and isn’t appropriate, and understand fully any consequences of stepping over the line.

Remember, just because it may be being held off-site, it is still a work function and work policies still apply.
Employers open themselves up to a variety of claims, including bullying and harassment, if they are not careful. You are still legally responsible for their conduct.

Responsible alcohol consumption should be enforced at any function and you should ensure your workers are able to get home safely.

It’s also worth reminding your staff that just because the end of the year is approaching doesn’t mean jobs are rushed and safety goes out the door. Don’t let simple tasks turn into injury claims.

Do you have a policy in place covering work functions and appropriate worker behaviour or do you need guidance in this area?
Human Outsource can help you. Contact Us for more information on how we can assist you.

From all the team here, we wish you, your workers and your families a very happy and safe Christmas and a productive 2018.

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