2FebWhat if you get Caught Going Down the Fair Work Gurgler?
Posted on 2/02/2017 by Nine2Three
Most businesses view HR as nice to have. Something that they will get around to; when they have more money, time, space etc. That is until the moment you get the communication saying ‘there is a claim against you lodged with Fair Work’. Even scarier could be ‘the Union has put in a claim to Fair Work on behalf of our worker’. Sadly these businesses very quickly realise that HR is not a nice to have, it is a MUST have.
Prevention will save you $$$$ and place you in the best possible position to defend claims when they come your way. Strong HR processes also send a message to your workers, that ‘we know what we are doing and if you think you can wrongly get money out of us, you will have to jump through some hoops, because we are on top of all of this!' But even so, almost every business will end up circling around the Fair Work Commission plug hole at some time in their history and what happens if you are caught and go down the gurgler?
Firstly, unless your HR person is very competent and holds strong experience in this area, call in an expert to help you. If you do not have a HR worker in your business or your bookkeeper/office manager/admin assistant just looks after HR without having any specialities in the area – definitely call Nine2Three.
Preparation is a key step when you are facing the Commission. A strong HR consultant, experienced in this area will be able to advise you what documentation to start preparing and what strategy to use to defend your case. You can still do all the leg work of putting these documents together, but you can have guidance in what you will need and how to present it.
Defining a strategy on your defence is also a key point. How will you defend? What aspects of the case will you focus on and what aspects are best not focused on? Part of the strategy is to define which is the most pertinent information to submit to the Commissioner and what the best format to submit it in is.
We work with clients right down to the details on how they put their documentation together so they can easily find the facts they need, while speaking. Little tricks, learned from experience can make a big difference when you are under pressure.
Hearings and conferences can move in unexpected directions and you need to be mobile and quick thinking to counteract new twists and turns.
Facing a claim from Fair Work does not necessarily mean that you need to engage a solicitor. The Fair Work Commission is set up for self representation and in many cases the commission will not allow businesses to have representation from external solicitors. You can, however, call on a HR consultant to attend hearings, speak on your behalf and be with you advising you through the whole event. You need to make sure that the consultant has done this before, is experienced in advocacy and understands how the commission works.
Not all HR consultants are created equal and while some may be brilliant internally setting up processes in your business, arguing a case with a commissioner might send them into a cold sweat! Some cases may be more complex and may need additional legal advice on strategy, but a good HR consultant will know when to bring in further legal expertise. At Nine2Three, we call on our legal team when needed, but many of the cases we assist with are straight forward and can have favourable outcomes without legal assistance.
The problem for a business with self representation at Fair Work is that you may not be aware of the nuances of the law, know when you can push back, and the arguments you can put forward that will more likely result in success. There are certain aspects of most cases that business owners want to use, but do not understand the greater implications of those arguments and how they can backfire on the business.
The Fair Work Commission is designed as an informal operation and if one side suggests legal representation, the Commission will review this for fairness for both parties. In many cases, the commission generally prefers to see in-house HR or the outsourced HR partner conduct the case.
Business owners might like to conduct the case themselves and speak, but they should have access to their HR advisor who is sitting beside them and can advise as the case progresses. When doing this for clients, Nine2Three HR consultants may take notes, pass notes, double check facts and give advice to the business owner.
Generally the two outcomes that are being contended in a Fair Work Hearing or conference is reinstatement of a worker or a monetary payout. Both of these eventualities can have long lasting effects on the business, so you want to make sure you are prepared, have help, and strong advocacy on the day.
It goes without saying that Nine2Three can do all of this for you. As always, prevention is better than cure – call us today to have a quick look at your Human Resource processes and we may just save you in time, money and headaches!
Important Note: These articles have been prepared for general circulation and are circulated for general informational purposes only; these articles should not be regarded as business or investment advice. The articles represent the views of the writers and are subject to change without notice. Additionally, while every care has been taken in the preparation of the articles no representation or warranty as to accuracy or completeness of any statement is given. An individual or organisation should, before any business or investment decision is made, consider the appropriateness of the information in this document, and seek professional advice, having regard to objectives, situation and needs. This document is solely for the use of the party to whom it is provided.
Posted in I Need HR Help
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