24 July 2015

Key challenges for HR Practitioners - Investigations, compliance, and the Fair Work Commission

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Being an HR Manager you need to be a little bit of everything. Understanding your legal obligations under the Fair Work Act can be confusing. Recent Fair Work decisions have shown that personal liability can be allocated to HR Managers under a variety of situations. 
Ensuring you are aware of your obligations, both to the organisation and yourself, to avoid the risk of personal liability makes sound business sense.  
Akolade recently caught up with Lisa Burrell, General Manager – Workplace Relations from the Victorian Employers' Chamber of Commerce and Industry (VECCI) to discuss the key challenges businesses are facing for Claims reported to the Fair Work Commission
Claims in the Fair Work Commission is an issue many more HR Practitioners are having to grapple with.  What are the key challenges facing business?
Firstly, there is the increasing number of claims and a continuing need for business to balance the wishes of defending their case against the commercial realities of defending a claim. This is a difficult decision for many businesses as it often involves issues of principle for an organisation and can have consequences internally – culturally, decisions to settle can negatively impact on parties involved in the initial dismissal process, even when commercially it may be the correct call to settle a claim.
Secondly, as leave for lawyers and paid agents to represent employers is increasingly being refused in FWC and at times Federal Circuit Court, we are working with many HR practitioners who are not confident to self-represent and uncomfortable with  the uncertainty of a lawyer of paid agent who may be refused leave to appear on the day.  Unions and other associations such as VECCI are not required to seek leave to appear as a representative in the FWC, as they have automatic standing to appear.  Outside of this framework, HR Practitioners may be called upon to represent themselves and therefore a thorough understanding of the FWC processes is essential.
The discussion piece from the Fair Work Commission member will provide an invaluable insight into current matters being handled by the Commission, and will assist HR Practitioners in preparation and decision making in the handling of these claims.
Workplace Investigations are a common requirement in today’s workplace, what issues are you seeing arising from investigations?
We have seen a huge rise in requests for investigations by VECCI over the past 18 months.  Some of this undoubtedly coincides with the introduction of the anti-bullying legislation and employers undertaking additional risk mitigation.
With the increase in litigation and ever increasing avenues for workers to make complaints it is becoming increasingly necessary to ensure a thorough investigation is undertaken with any potential or perceived conflicts of interest managed and industrial and procedural requirements are met.  Failure to do so can (and often does) leave organisations and individual investigators at risk of public criticism and adverse findings against them.
Procedural deficiencies, including a failure to follow internal policies, or a failure to act promptly, are frequently derailing what may otherwise be deemed a ‘fair’ process.
Organisations need to assess promptly whether to conduct an investigation and if so whether there is a need to outsource it to an experienced external investigator.  The discussion at the conference will support HR practitioners in assessing many of these complex issues.
What do you see being the biggest HR issue for organisations in the next 12 months?  
HR is a growing and increasingly complex environment for all organisations regardless of size. The issues we are seeing frequently in the current environment for HR practitioners over the next 12 months are mental health and psychological injuries.
These types of issues are often being reported to HR practitioners during times of redundancies, performance management and investigations. There is an increased cost to organisations in relation to employees lodging workers compensations claims and taking personal leave in connection with mental health and or injuries.  Areas such as performance management are critical in most organisations and if undertaken properly can be effective for employees and organisations both in improving performance but also protecting employers and HR from claims.
Finally, workplace investigations are increasing throughout most organisations. It is critical that these are undertaken in a reasonable manner with emphasis placed on prevention and/or management of psychological injuries along with remedies for organisations to implement to mitigate the risk of psychological injuries.
With the increase in matters being pursued, do you see any common themes or concerns for HR practitioners?
HR is a complex area in the modern organisation. HR practitioners are finding it necessary to be across a range of constantly changing legislation and requirements which is not always practical. This can result in HR practitioner’s decisions being questioned and a requirement to defend their actions in FWC and or the Courts with individual and company penalties if they get it wrong.  
At times, Practitioners may be required to make decisions and undertake actions on behalf of the organisation without necessarily being aware of all the relevant legislative requirements or the latest case law which can be an overwhelming concern for many. In the last 2 months alone we have seen 2 cases where organisations were required to make payment of $170,000 – one for a HR Managers misinterpretation of the National Employment Standards initiated from a Parental Leave Policy, the other stemming from an incorrect interpretation of medical advice from a HR Manager regarding an employee’s capacity.  We are also seeing employers encounter a range of procedural difficulties within the current highly prescriptive process of enterprise agreement making and lodgement.
Australia has one of the highest levels of compliance requirements for employment and this seems unlikely to change, noting that the Productivity Commission review into workplace relations framework will be interesting in this regard. In the meantime, keeping up with legislative change is a must and VECCI is pleased to partner with Akolade in presenting their 9th Workplace Law Fundamentals Roadshow that is happening in Sydney, Melbourne, Perth and Brisbane next month.
Lisa Burrell is the General Manager of Workplace Relations at the Victorian Employers Chamber of Commerce and Industry (VECCI). Lisa manages a team of over 20 Workplace Relations professionals, who are responsible for providing VECCI services to both members and non-members including general advice, training and one-one consultancy and advocacy services across a range of HR and IR issues.
Lisa’s background includes work in a number of diverse employee relations roles having previously worked in public transport, tourism, state government and ASX listed companies, prior to joining VECCI in 2009.  Lisa holds a Bachelor of Arts (Health and Behavioural Science) from the University of Wollongong as well as recently completing post graduate qualifications in Law (Workplace and Employment Law) from Monash University.


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