Workforce Life Issue 03 | Page 4

04 Feature Story INTO THE BREACH Why workplace compliance matters Last year there was a surge in cases of workplace intimidation and wage fraud investigated by the Fair Work Ombudsman. From legal action to bad publicity, we walk through the impact of noncompliance – and how to make sure it never happens to your business. It’s the stuff of boardroom nightmares: social media campaigns targeting your company and headlines linking your brand with a barrage of human resources violations ranging from rampant wage exploitation to unchecked workplace harassment. Growing businesses face common hazards, including lack of staff visibility, manual workforce management processes, outdated systems putting payroll accuracy at risk, managers overburdened with administration and complex scheduling. It is serious issues like these that contribute to the estimated 29,000 instances of business non -compliance with Australian workplace regulations that were reported to the Fair Work Ombudsman (FWO) in 2015-16. The most common enquiries to the Fair Work Ombudsman that year were about underpayment of hourly rates (26 per cent). Other commonly reported breaches involved non-payment for time worked (23 per cent); annual leave (10 per cent); payment in lieu of notice (5 per cent); and wages and conditions (4 per cent). More than a third of these were resolved under the FWO early intervention program, often with the help of mediation assisted by dispute resolution specialists. Investigations on the increase But while formal allegations against employers have dropped since the early intervention program began in 2014, the FWO has stepped up investigations into workplace breaches by Australian businesses following a surge of workplace intimidation and wage fraud. “Vulnerable workers, including visa holders, are overrepresented in our complaints data,” a spokesperson on behalf of Fair Work Ombudsman Natalie James, says. “Their complaints involve the most serious examples of exploitation. These workers are often employed by an operator who is part of a much bigger supply chain or network.” It’s a familiar story, with non- law expert and compliance not only attracting Employment Baker McKenzie partner legal action but also bad publicity. Briony Binns Worst-case scenarios include major disruption to the business, a serious knock to the brand image and, ultimately, decreased profitability and shareholder value. The ugly, brand-damaging cases tend to arise when supply chains fail their obligations, and responsibility is extended to others involved in the conduct through accessorial liability (this refers to those who have been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention). Employment law expert and partner at Baker McKenzie, Bryony Binns, identifies some dominant patterns in compliance breaches: Keep up with the rules First is lack of awareness. “Australia’s industrial relations system is quite complicated, and smaller organisations can struggle to keep up with the minimum terms and conditions and requirements,” Binns says. It’s a situation that our regulatory agencies are addressing through focused communication and education, she adds. Avoid keeping HR in a silo The second issue: “silos of expertise.” Binns says that there can be a tendency for organisations to expect HR departments to handle HR compliance, but then decisions get made outside of HR that impact on compliance. Outside of HR, labour costs may be seen as just another operating expense – and decisions made to deliver particular financial outcomes may neglect the implications from “New technologies and a compliance perspective. disruptive business models are driving a desire to use an on- demand workforce. That’s sometimes happening without considering our existing compliance framework.” “For example, a company might cut headcount and outsource part of its operation. HR no longer has oversight of the outsourced workforce,” Binns says, adding that regulators are currently interested in the responsibility of large companies that outsource functions to smaller providers, which then underpay their staff. “The Fair Work Ombudsman will consider whether a large company might be an accessory to the conduct of its outsource providers under the accessorial liability provisions under the Fair Work Act,” Binns says. Large organisations know what their volume of work is and they should know the minimum wage rates that apply to work they previously managed internally, Binns explains. “If operating costs drop substantially as the result of an outsource, where volume and output stay the same, that ought to set off warning bells around potential underpayment issues within the outsource provider.” That’s where silos become problematic, she says. “Often contracting is not done out of HR, it’s done out of the finance function or procurement. There's potential for a complete disconnect between existing HR compliance knowledge within an organisation and it’s indirect labour workforce.” Stay on top of technology The third key area testing compliance is innovation, Binns says. “New technologies and disruptive business models are driving a desire to use an on- demand workforce. That’s sometimes happening without considering our existing compliance framework, or connecting with existing compliance expertise within HR functions before deploying new models". Proactive partnerships and productivity “Most employers try to follow workplace laws,” says the FWO’s spokesperson on behalf of James. “Sometimes honest mistakes are made.” The FWO is addressing systemic non-compliance, looking at the drivers of behaviour in complex supply chains. “A number of companies have recognised that they have a moral and ethical responsibility to ensure the workers in their supply chains receive the lawful rights and entitlements under Australian workplace laws by entering into compliance partnerships with the Fair Work Ombudsman,” the FWO says. These compliance partnerships are formal agreements between organisations and the FWO that outline the steps a business need to take to make sure it has a compliant and productive workplace. “We work with businesses who value their reputation and want to keep a positive relationship with their employees, their customers and the Australian community,” the FWO says. Binns says there are signs compliance is taking off. “Labour costs are now being understood as more than just an operating cost,” she explains. "Companies are investing in education on HR matters within their HR functions, but also at a management and board level. HR compliance is increasingly seen as a strategic risk area that demands just as much attention as other areas of risk". “Embarking on a particular model without properly understanding the risks can potentially incur a massive organisational cost, particularly for a large organisation. Getting a compliance issue wrong ca n affect an organisation's brand as an employer, and create a heavy burden to meet historical liabilities together with the cost of future compliance. Cost control and innovation are important, but so is protecting your organisation from risk.” Subscribe for future editions UP NEXT → WANT A LOYAL AND EFFECTIVE WORKPLACE? Workforce Life | ISSUE 03