Employment compliance is a moving target. What was appropriate and compliant last year or even last month, might not be compliant today. The intersection of evolving employment laws, awards, agreements and case law can make it difficult for a business to be confident in its compliance status.
It is in this context many businesses seek out assistance with understanding and meeting their compliance standards and while seeking help is always a good idea, businesses need to exercise caution because even poor advice is no excuse for breaches. So it is vital that business know what to look for, and appreciate some realities when it comes to advice…
The Source Matters
Where the advice comes from is an important item to consider.
Consultants can be great partners for a business, but as a business themselves their focus is, like all businesses, on turning a profit. This is most easily by providing generic information across a very broad range of industries.
The result could be that the nuances of the specific industry your business is in are not fully or properly addressed leaving your business exposed to risk of breaches or non compliance.
Specialisation increases confidence
Associations are often more focused on a particular industry segment than generalist consultants, and tend to be able to provide more specialised advice.
Yet even when dealing with “associations” caution is needed. There is a wide range of organisations that use the term Association – some are businesses in the traditional sense, others are charitable or even social in nature.
The most specialised of the ‘associations’ are Registered Organisations.
A Registered Organisation under the Fair Work (Registered Organisations) Act 2009 is either an Employee Organisation (a union) or an Employer Organisation (an association).
Unlike most “associations” Registered Organisations are not businesses at all, they are not governed by ASIC or Corporate Statutes, they are governed by the Fair Work (Registered Organisations) Act 2009. Further, unlike most “associations” Registered organisations are granted special standing with the Fair Work Commission.
What this means practically to a business is that a Registered Organisation exists to provide detailed, specialises support and guidance to a targeted group of members, and if those members find themselves at the Fair Work Commission the member can call on their Registered Organisation to represent them. Usually in the Fair Work Commission legal representation is not allowed as a standard, parties can seek permission to be represented, but as a no cost jurisdiction this permission is not granted unless there are special circumstances. Registered Organisations ALWAYS have the right to represent their members at the Fair Work Commission and do not need to seek permission.
ACAPMA is the Registered Organisation representing fuel wholesale and fuel retail businesses nationally and regularly represents members in the Fair Work Commission on matters like Unfair Dismissals, Enterprise Bargaining processes, Bullying and Harassment claims.
“For ACAPMA members we will step in and help them with the preparation of documents and will represent members, so speak for them, in things like unfair dismissal up to and including the conciliation conference. In the 15 years I have been here ACAPMA has assisted with thousands of cases, and only one has gone past the conciliation conference stage. I am often asked what we charge for this service and the answer is simple, we don’t. ACAPMA members get access to assistance drafting the required employer responses and representation up to and including the conciliation conference in unfair dismissals free as part of their membership” explains ACAPMAs Elisha Radwanowski.
Customisation is vital for practical value
While specialised advice that takes into account the broad industry context of the business is better than generalised advice, customised advice that takes into account the specific business reality and the scenarios being faced is superior still. Customised advice allows for more informed decision making in response to pressures and more strategic long term operational change.
Insurance to protect your business
When working with a support service the business should enquire as to the qualification, experience and insurance of the support service with regard to the advice they are providing.
“This is an area that many businesses don’t look into until it is too late. The person and organisation you are getting professional advice from should be professionals and should carry insurance that protects you and your business if that advice is incorrect or incomplete. Too many businesses don’t think to look at the credentials and insurance of their advisors until its too late” adds Elisha.
When providing professional advice at a minimum full professional indemnity insurance that specifies advice provided and protection for the client should be held by the support service or organisation.
Responsibility still sits with the business
“But the big thing to remember is that the buck stops with the business, regardless of the advice received” concludes Elisha.
It is ultimately the businesses responsibility to get compliance right, and case law has shown that even when the business has received ‘dodgy’ advice that is no excuse for non compliance. In these cases businesses are asked to prove that the support service they relied on was appropriate and that the business had done due diligence in deciding to follow that advice – even then relying on specialised, professional, insured advice is not likely to remove responsibility from the business for mistakes, only to mitigate any penalties.
Here to Help
ACAPMA is the Registered Organisation (Employer Organisation) for fuel wholesale and fuel retail in Australia. ACAPMA specialises in fuel…it is all we do, and ACAPMA Members have a direct line for customised support to our in house employment professionals who have decades of experience in employment compliance and are recognised subject matter experts in the fuel wholesale and retail industry.
HR Highlights are things to consider, implement and watch out for in your business. They are provided as general information for you to consider and do not, on their own, constitute advice. You should seek further advice on your situation by contacting your legal advisor. ACAPMA members can access resources and receive advice, guidance and support from the ACAPMA employment professionals via firstname.lastname@example.org , it is free for members. ACAPMA Membership delivers this and more benefits, see; https://acapma.com.au/membership/ for more information
Elisha Radwanowski BCom(HRM & IR)
This article is an adaptation of one first run in Convenience World https://convenienceworldmagazine.com.au/cw-nov-2022/