Meeting Your Business Obligations – Cartage / Employees
BRIONY ROWLEY, Trainee Logistics Manager, Conundrum Holdings Pty Ltd provides a synopsis of the recent Business Seminar held at Nevett Ford Melbourne Pty Ltd.
ON Thursday 16th May 2013, CMPA held business seminars on “Business Obligations – Transport Contract” presented by Andrew Lumb and “Meeting Your Employment Obligations When Reviewing Employee Performance” presented by Phillip Brewin of Nevett Ford Melbourne Pty Ltd at their offices in Melbourne. The seminars were attended by Voting Members or their representatives.
BUSINESS OBLIGATIONS – TRANSPORT CONTRACT
Presenter: Andrew Lumb
Engaging a Cartage Contractor
It is quite common across the industry for there to be a lack of documentation outlining the “contract” between a hirer and their cartage contractors. In 2005 the Owner Drivers and Forestry Contractors Act 2005 (ODFC) was implemented which describes the legal obligation for such documentation to exist. Any engagement of a cartage contractor exceeding a 30 day period must be supported by a written contract stating the guaranteed minimum hours of work, the rates payable and the minimum period of notice of termination.
The cartage contractor must be supplied with an “information booklet” and a copy of the schedule of rates at least 3 days before their services are utilised.
Unconscionable Conduct, Dispute Resolution and the Code of Conduct
There is a wide range of matters that may constitute unconscionable conduct under the ODFC Act including requiring the contractor to comply with “unreasonable” conditions, excessive complexity of contractual documentation, pressure/bullying, the rates the contractor could have obtained elsewhere for the same work, consistency of contractual requirement between various contractors, withholding information, negotiation of terms and the allowance for increases in costs.
The ODFC Act also contains provisions which prevent a hirer from pressuring a contractor or discriminating against a contractor, who attempts to exercise their rights under the Act, participate in negotiations, raising an OHS issue or making complaints regarding a hirer breaching the requirements of the Act.
Disputes between hirers and contractors are first referred to the Small Business Commissioner for mediation, however if unsuccessful will proceed to VCAT.
VCAT have widespread power when it comes to resolving a dispute including but not limited to directing a party to do or not to do something, voiding or adding terms to a contract as they see fit, ordering payment of money, etc. as such it is very important to ensure that a hirer is not leaving themselves open to an unconscionable conduct claim through any terms of your contract. It is most certainly a good idea to utilise the CMPA Transport Contract or at least consult your own lawyer before putting any documentation in place.
The Code of Conduct provides greater detail on the topics covered by the ODFC Act and whilst not all provisions are compulsory, failure to comply could still be used against the hirer if a dispute was to reach VCAT.
Liability
Due to changes in Chain of Responsibility requirements there is a pressure on extractive industry businesses (hirers) to ensure compliance of their cartage contractors under all applicable legislation.
This includes overseeing a cartage contractors’ compliance with regards to registration and road worthiness of vehicles, licensing of drivers, insurances, heavy vehicle and mass and load regulations, road and traffic laws, emission and noise control, driving hours, WorkCover and OHS requirements and various other requirements under applicable legislation.
I was very impressed with the seminar. My aim was to gain some knowledge on a general contract as we are looking into a crushing contract. I would be interested to discuss further the shortened version of the contract the CMPA has developed.
Very useful information and I look forward to attending future sessions.
Ant Bateup, General Manager Mansfield Constructions
MEETING YOUR EMPLOYMENT OBLIGATIONS WHEN REVIEWING EMPLOYEE PERFORMANCE
Presenter: Phillip Brewin
Reviewing Employee Performance
Failing to have a documented plan to review employee performance before the employee starts their employment can leave a company open to bullying and harassment claims arising when the employee is pulled up on their unsatisfactory performance. A plan to review an employee’s performance should include a job description, duty statements and details of probationary periods so that all parties are clear on their requirements
and responsibilities.
Whilst the plan to review the employee’s performance should be quite detailed and include the above mentioned pieces of documentation, the employment contract itself should be simple and should not include the employee’s job description as this can prove to be restrictive if the employee refuses to do something that is asked of them which is outside of their job description. Including the concept of Annual Reviews in an employment contract should also be avoided as if for some unforeseen reason the review is unable to be completed during the 12 month timeframe, the company may be held liable if an employee claims they were not provided the regular reviews promised to them.
Performance Issues
When managing an underperforming employee it is important that performance issues are addressed immediately, the problems explained to the employee and writt en warnings issued if necessary. The whole process must be documented and not left until a performance review or until dismissal.
There is no point documenting all of the issues and raising them at a dismissal meeting if the employee had no idea they had done anything wrong and was not given an opportunity to improve. When an issue arises it’s important to accurately identify the issue, assess the reasons behind it, offer further training in the area, undertake regular reviews, keep written records and allow the employee to explain themselves before making assumptions.
It’s a good idea to have another employee present during any discussions to document the proceedings and to have the participants sign off on the report to state that they accept the record as a true account. During such meetings, particularly dismissal meetings, it is a good idea to allow the employee to have a “support person” present which may assist in preventing claims of bullying and harassment.
Dismissing an Employee
Employees cannot claim unfair dismissal if they have been employed for less than 6 months so it is important to ensure that documented probationary periods are put in place and are concluded and reviewed well before the 6 month period expires.
It is also important to ensure that reasons given for dismissal are legitimate or you could be liable for an Adverse Action Claim. Adverse Action Claims can be made by employees who feel that their employment was terminated for a prohibited reason such as race, religion, personal beliefs, family obligations, etc. There is no 6 month waver period in this situation; an Adverse Action Claim can be made on the first day of employment. Claims of this nature are more difficult for the employer to dispute as there is a reverse onus of proof whereby the onus is on the employer to prove that they did not terminate someone for a prohibited reason. The employer must be able to provide a legitimate reason for terminating the employee and should consider any other issues surrounding the employee that could be used against them such as recent bullying complaints, personal issues, etc. You must be able to prove that you have dealt with any such issues so that the employee cannot use these issues to claim that you have dismissed them for any reasons other than the legitimate reason you are stating.
It is also important to ensure that policies are implemented consistently for all employees to prevent issues arising from employees perceiving that some employees receive favourable treatment over others. Previous issues cannot be used as a reason for dismissal if the employee received a warning for their actions and their performance has since improved.
The Small Business Fair Dismissal Code is only applicable to businesses with 15 employees or less, however it is still a good guide to refer to when considering the termination of an employee. Employers dealing with issues of serious misconduct are not obligated to provide the employee at fault with a second chance but must still give the employee the chance to explain their actions.
As an attendee of the seminar recently, it was a valuable experience for me as an Operations Manager of a large family owned business in the extraction and transport industries. I found that the information provided will be a very useful and beneficial tool for planning and monitoring employee performance.
Mark Fitzpatrick, Operations Manager The Burdett Group
Some of the key points raised were having an effective plan to review performance that prevents bullying and harassment claims, providing position descriptions and monitoring performance within the probationary period and the need for extensive written records to be kept.
Also of value was the process employers should adopt to ensure that the paperwork trails will support a dismissal for performance issues – something that is a particularly difficult area to navigate since the change from the old award system to Modern Awards and the role of Fair Work Australia.
I would recommend this seminar and any other that the CMPA may hold to be of enormous benefit to employers within our core industry as they are comprehensive in content for the day to day running of any business.
For further information contact Mr Andrew Lumb or Mr Phillip Brewin from Nevett Ford Melbourne Pty Ltd on 03 9614 7111.
CMPA would like to thank Andrew Lumb, Phillip Brewin and Nevett Ford Melbourne for all their efforts in hosting and conducting these business seminars.
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