The Fair Work Commission (FWC) has made its first ruling under the new Same Job, Same Pay framework, after finding that the labour hire workers employed by a Queensland coal mine performed essentially the same work under the same conditions as the mine’s permanent employees.

As a result, more than 300 labour hire workers servicing the mine are set to receive pay increases of up to $20,000 per year as of November this year, when Same Job, Same Pay orders will come into effect.

Particularly for organisations in heavily unionised sectors, this decision serves as a reminder to evaluate employment practices to ensure compliance with the new legislation.

Labour hire workers perform the same work, argues union

The employer in this case, a Queensland-based open-cut coal mine, currently employs approximately 350 permanent employees who are covered by an enterprise agreement, and supplements its workforce with approximately 320 labour hire workers. 

Earlier this year, the Mining and Energy Union (MEU) put forward an application under the Same Job, Same Pay framework arguing that the labour hire workers’ roles were indistinguishable from those of the permanent employees, and they were thus entitled to the pay rates set out in the host employer’s enterprise agreement.

In its ruling, the FWC noted that the labour hire workers and permanent employees attended the same pre-start meetings each day, performed the same production work using the same equipment, wore the same uniforms and followed the same procedure for requesting annual and personal leave, among other similarities.

“If they’re being treated the same as employees on the site in terms of the nature of the work itself and the operational aspects, that’s where it becomes very compelling,” says Aaron Goonrey, Partner at Pinsent Masons.

The FWC was ultimately satisfied that the labour hire employees were entitled to the same rate of pay as their permanent counterparts.

Significantly, neither the labour hire company nor the host employer opposed the application, acknowledging these similarities and accepting the order to bring the labour hire workers’ pay rates in line with the host employer’s enterprise agreement.

“The decision is not contentious in the facts – these people did the same role,” says Goonrey.

“But there will likely be some upcoming applications which will be more complicated because they will be defended by labour hire companies or by the host company.”

The MEU has expressed its intent to assess the circumstances for labour hire workers at each work site and make further applications under the Same Job, Same Pay framework.

“This decision is going to be part of the case law that helps guide employers who use labour hire companies in terms of how they can avoid an order like this being made,” he says.

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Understanding the Same Job, Same Pay framework

The Same Job, Same Pay legislation was passed by the Albanese government in December last year as part of the Closing Loopholes Bill. The laws are designed to prevent employers from using labour hire to undercut the wages and/or conditions afforded to permanent employees via their enterprise agreements.

The legislation applies to businesses which have 15 or more employees, are covered by an enterprise agreement, and whose workforce is supplemented with labour hire workers. Sectors like construction, manufacturing, transport and healthcare in particular are likely to be impacted.

Under the new laws, the FWC can order labour hire companies to pay workers the same amount that would be paid to them under the host employer’s enterprise agreement, if they have been working for the host employer for more than three months and perform the same work as permanent employees.  

While Same Job, Same Pay orders will not kick in until November this year, applications can still be submitted beforehand, as occurred in this case. Any pay increases ordered by the FWC will become effective in November.

Anti-avoidance provisions have also been put in place to prohibit schemes that prevent the FWC from making a Same Job, Same Pay order or avoid the application of an order. 

A possible example would be trying to engage labour hire workers as contractors to deprive them of the new protections, or intentionally turning over the workers to stay under the three-month placement period. Deliberate attempts like this to skirt the new laws or game the system could attract significant civil penalties. 

“If they’re being treated the same as employees on the site in terms of the nature of the work itself and the operational aspects, that’s where it becomes very compelling.” – Aaron Goonrey, Partner at Pinset Masons

Is this the end of labour hire? 

This ruling signals the first of many decisions with significant financial impact on employers who use labour hire, particularly in heavily unionised industries like mining. Goonrey says this may prompt some employers to reevaluate their use of labour hire and its benefits.

“A lot of companies that use labour hire may be resigned to the fact that they will now have to pay a premium for that labour hire. Or, they’ll go to market and employ employees directly, which is part of the reason [why this policy was introduced] – to try and give more permanency.”

With that said, he disagrees with the notion that this policy will signal a “death knell” for labour hire. 

“There will still be a place for labour hire. I think a lot of companies will simply say, ‘We’re willing to pay the premium just for that flexibility.’ And there are a number of companies that are already paying their labour hire providers the same as what they’re paying their employees.”

For employers who engage labour hire workers and have an enterprise agreement in place, Goonrey suggests conducting a thorough analysis of the makeup of the labour hire workforce and the potential ramifications of a Same Job, Same Pay order to determine whether it would be beneficial to adapt or reduce the use of labour hire.

“It will become a finance issue, an operational issue and ultimately a business issue… [So], realistically, what you should be doing is bringing all the relevant business stakeholders together – finance, HR, operational – and working out, if an application was made, how much would this cost you?

“You’re better off being armed with the information about what the ultimate cost could be, as opposed to saying, ‘Let’s wait and see what happens.’”

Take your employment law expertise to the next level with AHRI’s new Advanced HR Law short course.

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In an era of rapid technological advancement, with the demand for certain skills rising and others becoming obsolete, preparing for the future of work requires foresight and adaptability. 

In this episode, Ravin Jesuthasan, global thought leader and Senior Partner and Global Leader for Transformation Services at Mercer, talks about how HR practitioners can navigate the evolving skills landscape and prepare their organisations and employees for these changes. 

You’ll learn how to take advantage of the shift towards skills-based hiring, how artificial intelligence might reinvent the graduate-level position, and discover models and frameworks to think about skills and job design as a small, medium or large-sized business.

Skip to the section that interests you most:

• 3:40 minutes: Three things HR can do to prepare for the evolving skills landscape
• 6:09 minutes: How to effectively map skills
• 12:51 minutes: The most crucial skills for businesses to focus on
• 16:03 minutes: How AI might change (or remove) graduate level positions
• 22:24 minutes: How to get started as a skills-based organisation
• 29:24 minutes: How to apply these skills as a small to medium-sized business
• 40:44 minutes: Jesuthasan responds to a scenario about a company that is moving towards a skills-based approach and has created agile teams working on project-based assignments.

View the podcast transcript here.

Extra resources:

For more conversations to inspire HR, listen to season one of Let’s Take This Offline here.

If you’d like further information and resources to help put Jesuthasan’s insights into action, check out the links below:

Learning opportunities

• Sign up to AHRI’s National Convention and Exhibition⁠ in Melbourne on 20-22 August to hear more from Ravin Jesuthasan.

• Sign up for AHRI’s new short course, GenAI Integration Essentials.

Further reading

• Learn more about Jesuthasan’s books.

• Read HRM’s article where Jesuthasan talks about the future of leadership skills.

Member-exclusive content

• Join the AHRI LinkedIn Lounge to connect with your peers and for access to a bonus episode later this week.

Subscribe so you never miss an episode. You can follow the podcast on Spotify, Soundcloud or Apple Podcasts. AHRI members receive exclusive bonus content via the LinkedIn AHRI Lounge.

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When compensation is introduced for actions we consider altruistic, it alters our perception of these acts – they no longer align with the original intent of selfless contribution.

For example, research indicates that offering financial incentives for blood donations can actually decrease participation rates. Acts like blood donation engage our intrinsic motivators, which are our internal drivers.

Leaders and managers who can harness their team’s intrinsic motivators can achieve significant performance outcomes. Unfortunately, many organisational reward and recognition strategies focus on extrinsic motivators, such as bonuses, promotions and power. Consequently, the motivational impact of these strategies is often short-lived.

“The feeling I get is that a lot of organisations use incentives without really understanding the  impact they can have,” says Marylene Gagne, John Curtin Distinguished Professor at Curtin University’s Future of Work Institute.

In collaboration with her co-author Rebecca Hewett, Gagne published a paper in the Journal of Management Studies which explores and contrasts motivational assumptions from agency theory and self-determination theory, concluding that the former is leading to suboptimal ways of managing employee motivation.

Agency theory versus self-determination theory

“Agency theory dominates management practices and education, [and is] built on the assumption that humans are self-interested, rational beings who need to be controlled and motivated through external mechanisms such as rules, monitoring and rewards,” says Gagne.

Consider a leader hiring a manager to oversee a division of the company. The business owner will aim to align the manager’s goals with those of the company, typically to increase profitability.

“The assumption is that if you reward that manager in a contingent manner – based on the firm’s performance – you’re more likely to encourage them to work harder and enhance the firm’s capital worth.”

In theory, this approach makes sense, as people generally seek rewards for their efforts. Gagne is not dismissing the role of financial incentives in the workplace, but suggests that our emphasis on these incentives as the primary motivating force is overstated.

On the other hand, self-determination theory assumes that individuals are naturally intrinsically motivated and thrive when their basic psychological needs for autonomy, competence and relatedness are satisfied. 

When this happens, employees will internalise organisational goals and therefore work towards them because they want to, rather than because they feel like they have to.

“Pay people well enough so they feel like the work they do is valuable, but limit the pay-for-performance approach because it can take away some of the meaning for people.”

How does this impact businesses?

Focusing on agency theory alone can have all kinds of commercial and cultural ramifications for a business.

“It tends to amount to managers monitoring employees more because they don’t trust that they’ll do the right thing, and they’ll impose more rules,” says Gagne. 

We know from previous HRM content that trust accounts for about 30 per cent of variation in performance. Various experts suggest that innovation and creativity are often killed in a culture of high employee surveillance and that it can also lead to unethical behaviours from employees.

“Underlying that is the idea that if my employees are extrinsically motivated, their goal is just to serve their own interests – they’re not going to be motivated to serve the interests of the organisation,” says Gagne.

“We often hear this narrative that HR executives need to learn to speak the language of other executives… but what about teaching executives whose expertise are in other fields to speak and think like HR?”  Marylene Gagne, John Curtin Distinguished Professor at Curtin University’s Future of Work Institute.

This can lead to a dip in discretionary efforts across the business, which can weaken or halt productivity levels. 

When employees don’t feel trusted, it can also lead to a range of non-productive behaviours, such as moral disengagement, individualistic mindsets, gaming the system and focusing on short-term gains over long-term sustainable performance, says Gagne.

“[Extrinsically motivated employees] might be more interested in what’s in it for them, such as pleasing the boss, getting a promotion or receiving a bonus. How might they then behave if they’re thinking like that? There’s more impression management, so less genuine behaviours. For example, if they’re helping a co-worker, they might just be doing that to look good to their boss, so that help is pretty surface level.

“Essentially, they’ll think like this: ‘I’ll only do what’s necessary to look good or to get to the outcome I want. I’m not going to be genuinely interested in whether my behaviour or work has a real impact on my colleagues, clients, beneficiaries or the organisation as a whole.”

Putting self-determination theory into action

Gagne and Hewett’s research shows that employers would benefit from building employee motivation strategies that centre on self-determination theory (SDT).

“When employees are intrinsically motivated, they care about the outcomes of the organisation,” she says.

A byproduct of this is that managers tend to avoid punitive measures and relinquish control, allowing for employees to internalise their organisation’s values and goals.

The first step, says Gagne, is to help employees feel capable by ensuring they have all the information, tools and capabilities necessary to engage with a more intrinsic approach to motivation. 

For example, in a marketing team, this might involve providing comprehensive training on the latest digital marketing platforms, ensuring team members have access to the best analytical tools and creating a supportive environment where they can freely discuss strategies and ideas. 

Next, you want to give them a sense of the ‘why’. 

“Help employees to see the practical applications of this value in their real life to make it more meaningful,” says Gagne.

For example, you could draw a link between how developing a commercial mindset as part of your organisational goals could support an employee to better manage their personal finances or to set themselves up for a senior-level role in the future.

You could also draw a link between the goal and how it contributes to bettering society, says Gagne.

For example, instead of an accountant seeing their job as simply crunching numbers and producing reports, HR and managers can coach them to see their role as contributing to the financial wellbeing of their community and enabling people to make more strategic decisions with their money.

Finally – and this is a key component of SDT – ensure employees feel a sense of autonomy.

“You need to make people feel like they have some kind of choice – that they can participate in designing organisational goals, for example, or shape how you might accomplish those goals. Participative management is very powerful for that reason.

“That’s what leads to internalisation [of organisational goals]. You’re much more likely to get someone who’s going to be self-regulating and managing their own behaviour as opposed to having a manager who needs to monitor them.

“They’re going to do it wholeheartedly. They’re going to do it well, not just surface level to please the boss. They’ll do the work in a way that will lead to the results the organisation is looking for… because they care about the results.”

Organisational structures and processes should be designed with “need satisfaction” in mind, she adds. 

“This would imply organising work in a way that gives employees access to information and decision-making power, supporting employees with feedback and learning opportunities… and promoting cooperation and teamwork.”

To achieve this, HR practitioners should consider how they divide and coordinate work.

“Does it promote information exchange and cooperation? Does it allow employees to make decisions individually or in teams? Are the resulting ‘jobs’ stimulating and do they provide people with clear information about the impact they have through their work? Are leaders trained to support employees or evaluate and sanction them? What behaviours do remuneration systems reward?”

HR as champions for change

While more research is needed before systemic changes are made to reward and recognition strategies, Gagne believes HR practitioners play a central role in moving the needle on new and improved employee motivation tactics.

“It should start with the relationship between executives and the board. [Help them] see how you could instil those principles of self determination theory, and focus them on how their decisions affect autonomy, competence and relatedness.

“We often hear this narrative that HR executives need to learn to speak the language of other executives, like operations and finance. But how about thinking about it the other way? How about teaching executives whose expertise are in other fields to speak and think like HR? I think we need to work on that.”

Learn how to approach talent management as a dynamic and holistic process in your organisation to reap the benefits of skilled employees who help the organisation achieve its strategic objectives with AHRI’s talent management short course.

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Following the recent passing of the Fair Work Amendment (Closing Loopholes No 2) Bill, employers will soon be subject to new laws governing the conversion of casual workers to permanent status – the ‘employee choice’ framework.

These changes, effective from 26 August 2024, will introduce a new definition of casual employment, along with new pathways for casual workers to convert to permanent employment if they wish to.

The new definition of casual employment shifts the focus from the terms of the employment contract to the practical reality of the employment relationship. This means that rejecting a casual worker’s request to become permanent will be more complex, since HR will no longer be able to lean on contracts to establish casual status.

However, these laws will also make it more difficult for casual workers to gain the protections of permanent employment, as the framework is only available if the employee no longer satisfies the definition of a casual employee. There will also still be many instances where an employer has reasonable grounds to refuse a request. 

In preparation for the new legislation to come into effect, here are some key legal considerations to keep in mind when determining whether a casual worker is entitled to convert to permanent status.

Understanding new laws around casual conversion

One of the most significant changes coming from the new legislation is the removal of employers’ obligation to initiate casual conversion.

The process is transitioning from one which is reliant on the employer checking employment status and offering conversion accordingly to one that places the onus on employees to notify the employers that they no longer meet the definition of a casual and therefore should be permanent employees. 

For HR, this shift has the potential to eliminate much of the busywork involved in checking on the length and status of employment and offering conversion to employees who may not wish to become permanent. The changes reflect the reality that many workers, particularly in sectors like retail and hospitality, are casual by choice and do not wish to lose the casual loading or flexibility this status gives them. 

With that said, the upcoming legislation also has measures in place to allow workers who do wish to convert to permanent status to do so and gain protections such as paid leave, notice of termination and redundancy pay. 

This is likely to have most impact in industries such as aged care, community services, childcare and labour hire companies, where work tends to be predictable, but where it has traditionally been challenging for some workers to convert to permanent status.

Particularly for employers in these industries, it’s crucial to understand what will constitute reasonable grounds to refuse a request under the new laws. 

This is especially true in light of the increased anti-avoidance penalties for improperly engaging casual workers, which were introduced in February this year. 

Employers now face significant civil penalties (up to $93,900 for individuals and $469,500 for body corporates) for breaches, such as dismissing or threatening to dismiss an employee with the plan to re-engage them as casual, making false statements to persuade an individual to enter a casual employment contract or misrepresenting employment as casual. 

Read more about new laws for engaging casual workers and how they could impact your business here.

Grounds for refusing a casual conversion request  

Under the new employee choice framework, employers can reject a request if the employee still fits the new definition of a casual employee. Employers will also retain the ability to reject a request based on fair and reasonable operational grounds. 

These grounds are situations such as where converting a casual employee to a permanent status would cause significant disruption to the business operations or substantial changes would be required to the way in which the employer’s work is organised. 

For instance, if the work is highly weather-dependent or heavily influenced by varying customer demand, employers may argue that maintaining a casual, flexible workforce is essential. Industries such as quarrying, where operations can be halted due to weather, or retail, where the volume of work varies greatly, are typical examples of where these grounds might apply. 

“Even if an employee works a regular pattern of hours, this does not necessarily mean they are entitled to permanent employment.”

An employer can also reject a conversion request on the grounds that there is an absence of a firm advance commitment to continuing and indefinite (i.e. they still fall within the new definition of a casual employee).

Currently, the absence of a firm advance commitment is largely determined by the terms of a contract. Under the new legislation, to refuse a request on the basis that they still fit the definition of a casual employee, employers will need to demonstrate that there is no such commitment by assessing how the relationship plays out in reality and not just having regard to the terms of the contract.

This involves considering factors such as the employee’s ability to turn down shifts or the variability of their work hours. If an employee can decline work or if their schedule lacks consistency, that will support the notion that they still meet the casual employee definition. 

Another factor that may be relevant is how far in advance an employee is informed of their shifts and patterns of work. This issue was raised in Workpac vs Skene, a 2018 Federal Court case where a casual worker was found to fit the definition of a permanent employee in part because he was provided with 12-month rosters in advance.

Employers may also assess whether there are full- or part-time employees performing exactly the same work as the casual employee. If this is the case, this can indicate the presence of a firm advance commitment to continuing and definite work, potentially making them eligible for permanent employment.

Importantly, even if an employee works a regular pattern of hours, this does not necessarily mean they are entitled to permanent employment. 

Best practice for rejecting a casual conversion request

If an employer determines that the employee still meets the casual employee definition or they have fair and reasonable operational grounds kto refuse a request, it’s important to communicate this decision to the employee the right way.

When rejecting a request on the basis of fair and reasonable operational grounds, employers must clearly articulate the specific operational reasons for the rejection in writing, this might include outlining the business’s need for flexibility and any negative impact a permanent conversion might have. 

It’s important to thoroughly communicate the context of customer needs or other variables, and why the current casual arrangement is necessary for their operations. 

Providing clear and detailed written responses is crucial not only to avoid disputes, but also to help employees understand the decision, manage their expectations and avoid misunderstandings. 

While employment contracts are no longer the sole factor in determining whether an employee is casual or not, it remains important to include clear contractual terms that align with the new definition of a casual employee, and keep clear records of the casual loading that has been paid to employees based on their employment status. 

While the upcoming legislation aims to reduce the burden on employers whilst still providing a pathway for casual employees to convert to permanent status, employers may still have valid grounds to refuse these requests (such as because the employee still fits the casual definition, or due to fair and reasonable operational grounds). By assessing, documenting and clearly communicating their  reasons for rejection, employers can mitigate legal risk and maintain the necessary flexibility in their workforce.

Will Snow is a Director and Molly Shanahan is an Associate at Snow Legal.

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As Australia’s largest seafood producer, with more than 35 years’ experience in aquaculture, Tassal Group is no stranger to the challenges of retaining employees in a demanding and complex industry.

After skill shortages necessitated bringing in more entry-level staff, Tassal’s people and culture team and Workplace Health and Safety (WHS) trainer noted that the volume of required training was overwhelming new starters in the organisation’s farming teams and leading to high levels of turnover within their first year with the organisation.

To address this challenge, the team developed and implemented the Accelerate program, a dynamic onboarding process designed to equip new farming employees with the skills and confidence needed to thrive on the job from day one.

The program has transformed the organisation’s approach to recruitment and training, significantly improving safety and overall job satisfaction among new recruits and contributing to decreasing voluntary turnover among first-year employees by 40 per cent.

“[The program means] they’ve got the confidence to know how to handle themselves when they’re on the water, and that ability to be integrated into a team quickly has made a huge difference,” says Liz Luck, Senior Manager of Organisational Capability and Development at Tassal.

The success of the program saw the 1700-strong business win Best Attraction, Recruitment and Retention Strategy at the 2023 AHRI Awards.

Know someone who has made award-worthy contributions to their organisation or the HR profession? Applications for the 2024 AHRI Awards are open until 14 June. Read more and apply here. 

Accelerated onboarding

Learning the ropes of a role in the aquaculture industry can be a complex and lengthy process.

A combination of factors such as safety risks, complex equipment and strict regulatory requirements means it can take a farming employee between 18 months and two years to become fully proficient and comfortable in their role.

“Previously, we’d been able to employ people who had experience in similar roles, but it was becoming a challenge to source anyone with any experience,” says Luck.

“We were faced with hiring people who had never worked on the water, and sometimes hadn’t really been out on boats before.”

This meant new employees sometimes felt lost when they started, she says, which impacted retention and integration into the broader team. This was exacerbated by the fact that new team members were starting sporadically, making it hard for WHS trainers to provide suitable training. This tension led to the decision to develop the Accelerate program.  

Launching with two pilot programs in 2021, which ran for two weeks each, the training program is conducted in a controlled environment, offering new farm attendants exposure to various aspects of their roles before joining their permanent teams. This includes off-the-job training for necessary licenses and hands-on practice in a safe setting. 

“They’re learning the basics of the job. It’s a sampler, but it’s got lots of variety that helps them hit the ground running,” says Luck.

“It also does amazing things for the confidence of these participants, as they’re learning in a safe space, and then they can go out and actually hold their own and feel that they’re contributing [from the start].”

Safety is at the forefront of every decision at Tassal, she says. The Tassal aspiration of ‘Zero Harm’ extends to everyone, not only direct employees, and the Accelerate program is no exception. 

Leveraging onboarding to boost belonging

After outstanding feedback from participants in the pilots, the program was developed into a six-week onboarding course, which has now been completed by around 75 employees. The program has also been very well-received by existing employees, who no longer feel they have to start from scratch when training a new starter.

The success of the program has led to plans for expansion across other divisions. One of its most significant achievements has been fostering a strong sense of belonging among new and existing team members, says Luck.

During the Accelerate program, there is one week dedicated to learning “the Tassal way”, where participants can see the full salmon life cycle and meet the teams associated with each stage. This helps them see their place in the larger puzzle and feel more connected to the organisation, says Luck. 

“It does amazing things for the confidence of these participants, as they’re learning in a safe space, and then they can go out and actually hold their own.” – Liz Luck, Senior Manager of Organisational Capability and Development at Tassal

The program has also allowed Tassal to change its approach to recruitment, with a shift from seeking people with previous experience to actively promoting the role as having little or no experience required. This has led to an increase in female employees applying for farming roles, with 19 per cent of participants in the program being women compared to six per cent in the overall workforce.

In the past, female applicants with previous experience in farming roles had been limited, and Accelerate allows them to begin their career with established skills and licenses, and feel comfortable and confident working in what has historically been a male-dominated area, says Luck.

She recalls a particularly rewarding instance where a stay-at-home Mum was empowered by the program to pursue new career opportunities with Tassal. 

“She had always wanted to do something that wasn’t an office-based job, but had never applied because she didn’t have experience,” she says. “And so she was able to apply and do [the program]. And she’s great – she’s out there and just loving it. It’s so nice to see.”

Challenges and reflections from the program

Getting buy-in from management on an extended onboarding program like this was somewhat challenging at first, says Luck. Tassal’s workforce is fairly lean, she explains, and the number of new recruits is generally aligned to current needs. 

“But, with the Accelerate program, we were having to employ people before they were needed,” she says. “It was a really big mindset change for our managers.”

This is part of the reason why the initial pilot programs were only two weeks long.

“At first, there was a bit of weariness about it. But even those two weeks made a huge impact, and so managers decided they would be happy to expand it… It was just a case of needing to demonstrate that it was working. Once we got through the pilot, it was much easier.”

The success of the Accelerate program is a valuable reminder of aligning training and retention efforts with an organisation’s strategic goals. For Tassal, these goals included having world-class engaged teams delivering optimal performance, and establishing psychosocial safety as a foundational component of its safety strategy, both of which guided the rollout and continuous improvement of the Accelerate program.

Tassal is proud to have the people and culture and WHS team’s achievements recognised with an AHRI Award at last year’s ceremony.

“It was such a fabulous sense of recognition for the people that have put in so much work to get it up and running,” she says. “It was nice to have them recognised as having done amazing work because they really have made a difference in the way that we operate on the water.”

The post This onboarding program contributed to decreasing first-year turnover by 40% appeared first on HRM online.

The Fair Work Amendment (Closing Loopholes No 2) Bill was recently passed, making significant changes to the Fair Work Act 2009 (FW Act). Among these changes is a new definition of ‘casual employee’ which will come into effect on 26 August 2024. 

Previously, under section 15A of the FW Act, the definition of casual employment was if:

1. An offer of employment by the employer is made on the basis of no firm advance commitment to continuing and indefinite work according to an agreed pattern of work.
2. The person accepts the offer.  
3. The person is an employee as a result of the acceptance. 

The new definition of casual employment considers the practical reality of the relationship, as opposed to merely the terms in the employment contract (as was previously the case). Broadly put, the new definition encompasses an absence of a firm advance commitment to continuing and indefinite work, and in circumstances where the employee is entitled to a casual loading or specific rate of casual pay under an industrial instrument. 

There are a broad range of considerations to determine whether there is an absence of firm advance commitment to continuing and indefinite work, including the real substance, practical reality and true nature of the employment relationship, and whether: 

• There is an inability of the employer to elect to offer work, or an inability of the employee to accept or reject work.
• It is reasonably likely there will be future availability of continuing work.
• There are full-time or part-time employees performing the same kind of work.
• There is a regular pattern of work for the employee.
• These amendments acknowledge a firm advance can take a range of different forms, including in an employment contract, but importantly, through a mutual understanding or reasonable expectation.

New pathways for casual workers to convert to permanent employment

The changes also include a new pathway for employees to change to permanent employment status, previously known as casual conversion. The new pathway replaces the existing right to casual conversion. 

If an employee has been employed for six months (12 months in a small business), they can choose to change their employment status to permanent. There must be a specific event which clearly shows the transition, and it’s now up to the employee to initiate the shift to employment. 

The upside is that the onus is no longer on the employer to review and offer casual conversion.

“The new definition of casual employment considers the practical reality of the relationship, as opposed to merely the terms in the employment contract.”  

Akin to requests for flexible work arrangements, casuals can write to their employer to notify them that they’d like to change their employment status, and employers are required to respond within 21 days. 

An employer may refuse a notification on any one of the following grounds:

• They believe the employee has been correctly classified as a casual employee, e.g. they aren’t working on a systematic basis.
• There are fair and reasonable operational grounds for not accepting the notification, such as if substantial changes would be required to the way work in the business is organised to allow the employee to convert. 
• A change of employment status to full-time or part-time would not comply with a recruitment or selection process required by law, such as the Public Service Act 1999, which outlines that casuals cannot convert without a competitive selection process.

Avoidance penalties to be aware of

The changes will also introduce new anti-avoidance provisions to prevent employers from improperly engaging casual workers. This means employers must not: 

• Dismiss or threaten to dismiss an employee with the plan to then re-engage them as casual. 
• Make false statements to persuade an individual to enter a casual employment contract, such as telling them they will be financially better off.
• Misrepresent employment as casual.

Breaching these provisions can attract civil penalties. The maximum payable under the FW Act increased by 500 per cent for both standard civil contraventions and serious contraventions from 27 February 2024. Companies can now face fines of $469,500, or $4,695,000 for serious contraventions.

Implications for employers engaging casual workers

HR professionals should get across these changes and update their casual conversion processes and procedures to ensure a smooth transition and compliance with the new regime.  Factors to consider include: 

• While not having a firm advance commitment to continuing work is a consideration in determining whether an employee is casual, employers should still consider any conduct on their behalf which could suggest the employee is not a casual (e.g. while a contract says there will not be commitment, sending a text to the casual promising to give them a specific shift every week).
• Ensuring casuals are paid a casual rate or casual loading where they would otherwise be entitled to one under an industrial instrument.
• Being aware that casuals can now request conversion to permanency, and considering what grounds (if any) an employer has to reject such a request.

Fay Calderone is an Employment Partner at Hall and Wilcox. 

A version of this article was first published in the June 2024 edition of HRM Magazine.

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Around 12 months ago, our data told us we had higher staff turnover than previous years. At the same time, surveys and exit interviews were identifying extremely high engagement scores in most areas, but low scores in relation to career development and professional development. We dug deeper and found several issues relating to the lack of opportunities around career development.

Having recently implemented a new HR information system (HRIS), we knew there was a module for performance management that we hadn’t yet developed. That went hand in hand with a review of our performance management process. The new process could incorporate a strong connection with professional development and career development, and be enabled by the HRIS.

A democratic approach

After an employee survey, and utilising data from exit interviews, we presented the problem   we’d identified and the solution we’d devised to the executive. It was important that we had their support and they were keen to remain across what was happening.

We also had a working group made up of employees and managers to help design and guide the process.

Our focus was not just to ensure a clear professional development process and framework, but to support it with an HRIS element that reduced the amount of time a process like this might take up. In the not-for-profit space, time is a luxury most people don’t have. We needed to improve efficiencies and add value, rather than add administrative effort.

Another deep focus was ensuring every element of the system was fit for purpose. One excellent piece of advice I received when we spoke with other organisations that used the same HRIS was, “Don’t get caught up in what the system can do. Instead, focus on what you need it to do.” 

“[AHRI Certification] recognises job-based learning and expertise, and offers me greater confidence in my own decision-making.” – Megan Werner CPHR, People and Culture Business Partner, Stroke Foundation

Our previous performance management process involved meetings in November and December, with notes typed into Word files. It simply wasn’t conducive to structured, ongoing development. There was a great opportunity to change things.

We looked at our HRIS, at the key functionalities that were available. Then we created our processes to align with the pieces of functionality that matched our needs.

A new approach to career development

As we planned and executed the additions in functionality to the HRIS, we realised the result of those changes was far greater than the sum of their parts.

For example, there are now more areas that can be developed and customised for each individual in terms of performance management and professional development. There are employee goals, career goals, competencies for each role, performance reviews and more.

Other changes included:

• Check-ins are now happening at least once a month and people are going into the system with their managers and assessing their role competencies. Importantly, that’s not from a performance perspective, but instead from the angle of where they need to develop to do their job well.
• The mindset has changed from assessing how a person is performing in their role to assessing areas for development.
• Goals are set and regularly assessed – it’s a living platform, as opposed to a Word file that’s rarely opened because it’s hidden in a folder somewhere.
• Salary reviews aren’t connected to these performance check-ins or to performance reviews. Instead, it’s up to the manager and employee to work out how the process works best for them.
• Feedback and data from the system has already led to new offerings within the business, such as internal training programs and a mentor and emerging leaders program. 

It also brought a simple but powerful change to the timing of the major annual performance review, from the very busy November/December period to the much more manageable January/February one.

Overcoming challenges

The major challenge of the Team Stroke Performance and Development Project was a personal one – the fact that I am not an IT developer.

There was a lot of back-end work to be done on the system. While the vendor was exceptionally helpful and supportive, I had to develop a strong understanding of what our HRIS can and can’t do.

I did not anticipate the amount of time that was going to take, so I spent a lot of time learning about that space. Having said that, it was a positive experience and I now feel I have a new level of knowledge. It was excellent personal development.

I have been with Stroke Foundation for 19 years. I started out as the executive assistant to the CEO. So, for someone like me who doesn’t have a breadth of experience across organisations and sectors, doing this project to achieve my AHRI Certification shows how I’ve been growing and progressing.

You learn so much as you work in a role. This Certification recognises job-based learning and expertise, and offers me greater confidence in my own decision-making. 

This article first appeared in the April-May 2024 edition of HRM Magazine. Megan Werner CPHR is the People and Culture Business Partner, Stroke Foundation

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The clichés about young workers’ demands are familiar: better pay, lighter workloads, and a preference for avoiding phone calls. But much of this is just hearsay that has snowballed out of control.

The actual needs and desires of young workers don’t differ that much from other generations; the emphasis is just perhaps a little different in some instances.

Research suggests that Generation Z (born 1997-2012) want meaningful careers and to have their voices heard. 

“The next generation of workers also brings a blend of technological fluency, entrepreneurial spirit, and a passion for making a positive impact in the world,” says upcoming AHRI Convention and Exhibition speaker, Brie Mason, Principal Strategist & Director, Employer Brand Mason.

Too often, we make broad brush assumptions about generations of employees. We assume that attracting younger employees requires a blanket approach, but that might be oversimplifying matters.

“A 20-year-old worker in Western Perth who is on a path toward working in aged care is very different from a 20-year-old worker in CBD Sydney who wants to work in PR. Beyond that, our mindsets and upbringings also shape our needs,” says Mark Puncher, CEO of Employer Branding Australia, who will also be speaking at AHRI’s Convention in August.

Instead of trying to think of what all young workers want from work, he suggests considering who you’re trying to attract and what they care about. 

“The value of having benefits goes way beyond the actual benefit that’s offered. It’s about how it’s offered. By designing [benefits] with your team… that creates accountability and ownership,” he says.

Action point: Consider creating an employee persona (use this template to get you started) to better understand what employees and potential recruits are seeking from their employer. 

Promote stability and purpose

“People say things like Gen Z aren’t loyal, they want to progress really quickly, but I’d argue that one of the biggest things that matters to young people is job security, given the cost-of-living [crisis]. Not only are they experiencing it themselves, but they’re seeing their parents, or other older role models, struggling.”

This is why he thinks job security and stability are important factors to highlight when trying to attract talent. This could look like communicating your company’s current and future growth plans, low turnover rates, or career progression pathways. 

For example, your job advertisement might read:

“Join our growing team at [Company Name], where we offer permanent positions and robust career development programs. With a strong financial foundation and a commitment to your professional advancement, you’ll find stability and security in every step of your journey with us.”

Another common assumption made about younger employees is that they want pay raises, promotions, and extra responsibilities straight away.

“[People think that] because that’s because they’ve been raised in a world where they get instant gratification on Instagram and TikTok, but, from my point of view, what they actually crave is to belong and find meaning in their work.“

This narrative is nothing new. We’ve known for a long time now that younger workers are motivated by purposeful work, but the trick is tying that back to impact, says Puncher.

“It’s not enough to say, ‘I work for an organisation that makes a difference.’ It’s got to be, ‘I make a difference in this organisation,'” says Puncher.

Mason agrees, saying: “We need to work harder at connecting everyone, in every role, to the purpose of the organisation. They need to know and see their personal impact, and we need to ensure values are not just posters on a wall, but are lived every day.”

Action point: Individuals’ purpose doesn’t always need to be attached to grand “noble purposes” like saving the planet, says Puncher. Demonstrating impact can be as simple as aligning employees’ personal growth goals to the business’s overall goals.

For example, here’s how you might align employees’ goals with company goals:

When employees complete their goals, make sure to reiterate how they are contributing to the overall success of the organisation.

Meeting young employees’ expectations

Technology

Younger workers will have high expectations when it comes to technology, says Mason, as they are “the first truly digital-native generation.”

“Their expectations of technology are that everything should be simple, efficient and seamless,” she says.

Action point: Talk about how your organisation is utilising technology such as AI in your job description. In fact, recent research from LinkedIn and Microsoft found that LinkedIn job posts that mention AI or generative AI have seen 17 per cent greater application growth over the past two years compared to job posts that don’t mention them.

Beyond flexibility

A lot of what would have previously been considered ‘perks’ can quickly be considered basic hygiene factors by some employees, says Mason.

“To [young workers], flexibility and work-life balance are not benefits; they’re expectations of how we work. We need to design roles and work differently, giving everyone greater opportunities for autonomy, creativity, and innovation,” she says.

Action point: Refer back to Puncher’s point about co-designing benefits with employees, so you know what would be considered ‘above and beyond’ basic expectations for young workers. For example, remote work might not be considered a benefit anymore, but perhaps getting to choose start or finish times might be.

“It’s not enough to say, ‘I work for an organisation that makes a difference.’ It’s got to be, ‘I make a difference in this organisation.'” – Mark Puncher, CEO, Employer Branding Australia

Turn employees into storytellers

If you want to attract more young employees, get their peers (your current workforce) to share authentic stories about their experience of working for the company, says Mason.

“I’m a firm believer that employee advocacy is the number one way of building a strong employer brand,” she says. “Authentic storytelling adds credibility and believability to your messages too.

“When your employees share their genuine excitement about what it’s like to be part of the team, it speaks volumes to potential candidates. It’s like getting a recommendation from a friend – it’s way more convincing than any marketing campaign or ad.”

Action point: Tell stories in an authentic way, says Puncher.

“Often when marketing and brand folk get involved, they’ll say, ‘Let’s get employees to do a video about why it’s great to work here, but we’ll give them a script because that way we can control what they say,’ but that misses the point entirely.”

Overly scripted or contrived videos often do more harm than good, he says.

“People often say, ‘But what if they’re nervous or they say the wrong thing?’ But if you ask the right questions, make sure they feel comfortable, and give them a look at it before it goes out, that’s when you find gold.”

Use social media channels wisely

Using social media for talent attraction hinges on truly understanding your target audience and tailoring your strategies to align with their habits, says Mason.

“Certain organisations, such as NSW Police, have excelled in crafting witty, trendy content that resonates with younger generations on TikTok. This approach to content generation differs significantly from platforms like LinkedIn,” she says.

“The key to success lies in simplicity; authenticity prevails. People want genuine insights into what it’s truly like to work at your company. Who are the individuals? What are the company values? What experiences are being lived? What is the office like?”

“The next generation of workers also brings a blend of technological fluency, entrepreneurial spirit, and a passion for making a positive impact in the world.” – Brie Mason, Principal Strategist & Director, Employer Brand Mason.

Puncher agrees, saying if you only focus on the “glossy” stuff, you might inadvertently set yourself up to fail.

“You’re creating a false expectation. People might say, ‘Oh, that’s not what I saw on Instagram’ then they’ll rarely perform to the same degree – or they’ll [quit].”

Action point: Look for the rituals and rhythms in your workforce, not just the special moments, and promote those on social channels.

“Also, don’t just put the same content on each channel in the same way,” adds Puncher.

For example, say you’ve created a video of your young employees talking about what they love about working at your company, here’s how you might use that video in different ways, on different channels:

• On your company website, include the full 2-minute video that gives deep insight into the experiences of 2-3 of your employees based on testimonials they share with you.
• On YouTube, have those same employees giving viewers a tour of your office space.
• On TikTok, find a 15 or 30-second cut from the original video that highlights a fun or engaging aspect of your culture (e.g., employees talking about social aspects of work).
• On LinkedIn, cut your original video into three separate 30-second cuts, focusing on a different employee in each video, then post each video over a few weeks. It could be part of a video series, ‘Why I love working at [company name].’

Consider intrinsic motivators

Extrinsic benefits can be useful, says Puncher (who doesn’t like a free lunch?), but they only go so far.

“So much of the reason people stay with you and choose to perform instead of tapping out is about intrinsic benefits: good leadership, relationships, benefits, trust, and loyalty. If you focus solely on extrinsic benefits, you run the risk of creating a transactional employment relationship.”

Intrinsic motivating factors include problem-solving, recognition, belonging, and feeling stretched (in a healthy way).

Read HRM’s article ‘How to push employees out of their comfort zone (without pushing them too far)’.

An example of an intrinsic motivator is learning something new at work. People might gain a strong sense of satisfaction from mastering a new skill or adding another accreditation to their LinkedIn profile, so consider how you build opportunities like this into the employee experience.

“A classic example might be a [young] employee coming to you and saying, ‘I want a promotion because I’ve been here for six months, so what’s the next thing for me?'” says Puncher. “A lot of people assume that’s about them wanting a pay rise, but that’s not necessarily true. It’s about them needing to know where they’re going [and what they’re going to learn].”

Action point: Benefits shouldn’t be treated as a lure or bait to reel people in, they should be things that are co-designed with employees with the aim of helping them to perform, says Puncher.

Consider how you can enhance these factors, such as via management training, creating effective recognition programs or giving an employee visibility over how they could progress in your organisation.

Puncher and Mason will be speaking on a panel about crafting a compelling EVP for talent today and tomorrow at AHRI’s National Convention and Exhibition in August. Sign up today to hear from them and other experts, including Seth Godin, Dr Pippa Grange and more!

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In times of cutbacks, identifying opportunities for redeployment can be a strategic way to retain valuable talent and prevent job losses. However, when issuing a redeployment offer, failing to consider the suitability of the new role can open employers up to legal challenges, as highlighted by a recent case heard by the Fair Work Commission (FWC). 

In this case, a building services company filed an application with the FWC to reduce an employee’s redundancy payment on the grounds that the employee had rejected the offer of redeployment to an alternative role. 

However, the FWC’s investigation revealed that the employer had not adequately assessed the employee’s ability to perform the new role, and had withheld essential information about the role from the offer. As a result, the employer’s bid to reduce the payout was unsuccessful.

“This case is a good reminder to HR of the general factors that need to be considered when you’re looking at what constitutes acceptable redeployment,” says Amy Zhang, Team Leader and Executive Counsel at Harmers Workplace Lawyers.

“It’s also a good warning to employers to not simply offer any old job just to try and avoid payment of redundancy pay.”

Redeployment offer was “substantially different” from existing role

The employee in this case had been working for the business as a project manager for around eight years when, in January 2023, he was informed of the company’s impending closure.

Soon afterwards, he was offered an alternative role at an associated hardware company. The new role was in business development management, which significantly differed from the employee’s original role. Citing his lack of suitable skills and experience, the employee rejected the offer. 

When his employment was officially terminated in late 2023, the employer did not pay out the agreed redundancy sum of $40,000. Instead, it filed an application with the FWC to reduce the payment to zero. It argued that it had provided the employee with an alternative employment opportunity, which the employee rejected, and claimed financial incapacity to pay the redundancy.

During its investigation, the FWC examined whether the new role was suitable based on an assessment of various factors, including job content, employee skills and experience, working conditions, remuneration and location.

Despite similarities in basic employment terms such as salary and working hours, it found that the core functions of the roles were “substantially different”. The new role involved responsibilities that the employee has no experience with, nor had he shown interest or competence in those areas. 

“The more information that you can impart about the process involved, the more that may help with managing stress and anxiety about the situation.” – Amy Zhang, Team Leader and Executive Counsel at Harmers Workplace Lawyers

Crucially, the employer also failed to disclose essential information about the new role, including a hefty annual sales target of $2.5 million. This lack of transparency was a major factor in determining that the redeployment offer was not suitable.

“Employers need to be careful to give the complete picture of what the new proposed role looks like,” says Zhang. 

“If you give a half-hearted or incomplete picture, and you’re not clear about the duties and responsibilities, the Commission could look at that and say it’s not acceptable alternative employment.”

Regarding the employer’s claim that it was financially incapable of paying out the redundancy package, the FWC noted that the employer’s associated entities were financially intertwined, suggesting potential sources of funds were available.

Ultimately, it concluded that the employer had not met the necessary conditions to warrant a reduction in redundancy pay, resulting in the preservation of the employee’s full entitlement of $40,000 in redundancy pay.

4 tips to manage redeployment offers fairly and legally

The current economic climate means many leaders are facing the challenge of cutting costs and headcount without opening their organisations up to legal, ethical or reputational risk. 

When handled correctly, redeployment can provide a mutually beneficial way to redirect talent to the parts of the business where it’s most needed. However, in light of the FWC’s ruling on this case, there are a number of legal and compliance considerations that employers should take into account when issuing a redeployment offer. 

To protect your organisation, Zhang recommends the following:

1. Ensure clear communication and documentation

The employer’s crucial misstep in this case was its lack of transparency, communication and documentation around the redeployment offer, says Zhang. 

“If an employer properly consults with an employee, these sorts of things can be discussed and managed in a positive and amicable way, and it doesn’t lead to this level of distrust.”

HR should also ensure job offers provide a thorough and accurate representation of the new role.

“At the minimum, you should be providing information about the specific duties, responsibilities, sales targets or other performance indicators, if there are employees that you need to be managing and overseeing – as much information as possible about the particular role to allow the employee to make an informed assessment. It’s not enough simply to say, ‘Here’s the job title, and this is what we loosely think it might involve.’”

2. Assess the suitability of an alternative job offer from all sides

When considering the suitability of an offer of redeployment, Zhang stresses that the assessment should not be based merely on assumptions or broad categorisations of work duties.

“The Commission can consider any relevant factor [to determine suitability], and it will depend on the particular job you’re looking at.

“If you’re offering a job that’s in a very different location to the previous role, or that has different shifts or hours of work, all of those things will be relevant. So it’s not just about the job and the duties and responsibilities. Sometimes job titles can be very important as well, [particularly] if it looks like it’s a demotion.”

3. Consult the employee involved

Engaging with affected employees during a redundancy or redeployment process is crucial to achieving a fair outcome, says Zhang. 

“Even if there’s no strict obligation under the law, it’s still best practice to consult because it engenders trust, and it can also help create new ideas about other ways to retain or redeploy the employee,” she says.

“It’s already a very stressful, distressing process for employees, and the more information that you can impart about the process involved, the more that may help with managing stress and anxiety about the situation.”

4. Provide adequate training and support

In addition to providing adequate information about the new role, demonstrating how you will support the employee through their transition is essential for a smooth redeployment, particularly if the role requires them to acquire a new skillset.

For example, if their new role requires more face-time with a client, how will you support them to develop their presentation, communication or influencing skills?

Equally important is ensuring that employees are properly supported when a suitable redeployment opportunity is not available.

“Make sure that you’re keeping an eye on your safety obligations,” says Zhang. “It’s always best practice to offer EAP services. We also quite often see [employers using] outplacement services as well to assist employees to be able to transition and find new employment.”

By keeping these legal considerations in mind, employers can design redeployment policies that stand up to scrutiny and provide maximum benefit to both parties.

Need help brushing up on HR laws and compliance? AHRI’s short course will give you an understanding of the key elements of legislation, regulation and practices HR needs to be across.

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