Managing Through COVID-19 Crisis: Minimum Wage Increase and Casual Pay-rise

Published November 15, 2020 Views: 3


In today’s session of Friday’s With Ed, topics covered included the casual pay-rise no-one is talking about, the latest minimum wage increase, guiding a business through crisis and chaos, managing and motivating employees, and communication and leadership.


  • Managing Through COVID-19 Crisis: Minimum Wage Increase and Casual Pay-rise

    Ed: …on our Friday session with me. So we were just laughing here before we got going and saying that it is Fridays with me, not with Stu. I want to be very clear about that. I had a funny conversation with a couple of people here at work yesterday and we were musing about why people seem to have an interest in these session. And the two guys at work were both saying it’s definitely Stu, I think he just…he adds an air of easy calm to these sessions and it’s all about Stu. And I was obviously mightily irate with that. And I want to reinforce that this is called “Fridays with Ed,” not with Stu. And so Stu can stay very much in that backing singer role, but I’m the Harry Styles of One Direction here. A bit of a pop culture reference.

    But anyway, so aside from that slightly random intro, why are we doing this, a reminder of the why of these sessions. I was…as I was just scribbling some notes to do this, I thought, “I wonder if it’s boring to always start with why?” But I need to do it because it’s…that’s how I encourage myself to communicate and in turn, I suppose, by reference to you guys, as well. I always think that communication, you’re only just making your point when you’re sort of bored of saying it out loud.

    So in terms of why we’re here, we are here in the hope of helping you guys with updating you on workplace relations issues that might be happening across Australia and New Zealand. And workplace relations issues obviously spread into smaller business issues generally, and so hopefully there’s a bit of a resource to you in that regard. And as I’ve said before, it also helps me [inaudible 00:01:50] speed on what’s going on, but it reminds me that I’m not on an island here in trying to manage a business through this crisis.

    In that regard, the session today is going to have four sections, which is going to talk about updates in Australia, a little bit on updates in New Zealand, an update that applies to both countries and the world really in terms of the question of contractors versus employees, and then finally just some of those HR and leadership type tips on a couple things that I’ve been looking at this week.

    So Australia, no huge changes. I think probably what we’re seeing in the businesses at large is a move back into the offices, people are getting more and more confident in Australia and in New Zealand to be back in offices. We’ve got increasing numbers of people in our workplaces. Even in Victoria and Melbourne we’ve been able to get people in this week.

    Just to give you some sense of the basis for that. You’ll see the narrative in Victoria remains if you can work from home, you must work from home. Now we interpret that as having a sense of reasonableness in it. We think that there are various reasonable reasons to say, “Actually, we want certain groups of our staff to come back in.” First and foremost is their own health and well-being, and the need in their roles to work in a team or community. And related therefore to that is their performance in their roles.

    And funny enough we saw…just in getting our Victorian team back in this particular department back this week we saw their productivity go up by about 50% to 60% just in two days. Which gives you a sense of just how much the lockdown in Victoria has been burdening people and suppressing things like their performance.

    Now in a world where people are under fear, frankly, of having job instability, potentially losing work, we want to minimize that fear by helping them to be excellent at their work. And we think that it’s reasonable therefore to get them back into the offices. I mentioned last week that we had the problem with the landlord seeming to say that we weren’t allowed. And fortunately they backed down on that, so our office is back up and going, despite the race that sort of semi half stopped the nation on Tuesday, just chucking in an extra challenge to get the engine going in Victoria again.

    So aside from that, I was lucky enough to be invited onto Channel 7’s “Morning Show” yesterday morning to talk about casual employees. So a very nerve-racking process actually I had to go on, you know, on sort of morning sofas and try and look like you’re totally at ease and comfortable sitting there whilst sweating profusely and being nervous about being on live TV. But it was a good experience. I was curiously sandwiched between a real-life Barbie who had had some 300 cosmetic surgeries, and then two stars from “Home and Away.” So I don’t think it merits getting into the viewership figures for those three segments, I suspect I didn’t win on that regard. But casual employees may be interesting to us, but have nothing on the “Home and Away” team at least.

    So what were they wanting to know about casual employees? A couple of things really. So there’s…Christmas is a time that we often, particularly in retail and hospitality, see an increase in casual workers. And they were saying essentially, “Is there anything to watch out for as people get back, not to just employing people, but having to deal with some seasonal demand?” And the answer to it was, well, yes, there is actually because we’ve got some pending changes to a number of awards for casual workers in relation to overtime taking place towards the end of November. So our clients at Employsure, you’ll be hearing about that directly from us. If you’re not a client and you need help, keep an eye out on our website for resources and fact sheets about these changes on the 20th of November and if they’re at all awards that apply to you.

    Really interesting changes in some of the awards. It will basically mean that some casuals for overtime will end up getting about $6 an hour more than they were before. So somewhere in the region of over 20% pay increase, with respect to some of the hours that they work. So really watch out for that, guys, it’s a really tricky issue. And you need to understand if that applies to you, that as you’re coming into the Christmas season you might be employing more and more casuals, whether you’re going to have problems with employing those casuals in terms of the cost of them in these difficult times.

    So watch out for that, that was one issue that they were interested to talk about yesterday. One of the other issues was in relation to the long-term employment rights of casuals, “If you’ve been a casual for a period, do you get the right to become a permanent employee?” We’ve talked about that on here before, there is no right to become a permanent employee. A number of awards have trigger clauses that say you can convert, but there’s no obligation.

    So, but be aware of those sorts of things together with the decision that’s currently going through the High Court about long-term casuals and holiday pay and other benefits. We’re still waiting for that decision, there’s no clarity on it yet. But I just wanted to flag that again as we go into the season and you do have your casuals. That was something that they didn’t seem to be aware of on the show yesterday, so hopefully it’s something that you’re increasingly aware of now.

    Talking of the absence of a decision on that casuals point and the need for one. I read a really good article, I love reading her stuff actually, in The Australian by a lady called Judith Sloan. And she has a very powerful voice for what you would say is the opinion of small business, I’d say, certainly when I read the articles. And I actually pinged her an e-mail just to say how much her work resonates with me. Sometimes, yeah, her opinions feel very much aligned to how I feel about industrial relations, which is what she writes about most of the time, and how it relates to employers, and particularly small business.

    And she was talking about the problem with casuals, amongst other things, and saying that we’ve just had this period where we were promised so much change in industrial relations because this great committee was going to meet and talk about what was going on. And it was a union and employer group love-in and everyone was going to have a good chat and come up with great solutions. Now actually what’s passed is that we were expecting to hear some form of draft bill as to what was going to happen out of that, and nothing has happened. I suspect Judith Sloan got there before I did in predicting that nothing would, but you’ll have heard me banging on for weeks or months on here that I didn’t think it would go anywhere.

    She’s says a couple of things that are really powerful, I think. She… First of all, she calls the whole thing a Zoom-fest, which I thought was quite an amusing term. And then she said that in essence the problem was that they went to groups of…both employer groups, but also unions. And she says that they elevated those groups to levels that were “neither defensible nor useful.” That’s her words, not mine. Given how unrepresentative of employers and employees those groups are, they’re not the people that employ people, they’re not the people that represent employees either. So they were asking groups of people that really didn’t have a clue to come up with ideas. Not only do they not have a real finger on the pulse, they also speak in very polarized terms because they’ve got such diametrically opposite political views rather than approaching the middle ground, which is actually practically what employers and employees tend to think.

    She also highlighted the work that apparently the government has spent huge sums of money on a big fancy consulting firm called the Boston Consulting Group to go and do an analysis on the enterprise agreement system. Which is just, again, a sort of mind-boggling waste of money when you see all this criticism that’s going on at the moment through you saw the senior boss at the ATO getting a kicking and the head of the Australian Post getting a kicking, as well, for sort of frivolous spend in their organizations. And there’s the Fair Work Commission in the midst of all of this commissioning things, commissioning very expensive consulting companies, to tell us what we already know, which is that enterprise bargaining is a naff resource that no one actually uses.

    It’s just it serves so little purpose to your average employer, particularly small business. If you are paying at or slightly above award, you’re in reality not going to get into a position with an enterprise agreement that actually benefits you as an employer in any way. So I could have done that for a lot less than BCG, I reckon, but anyway.

    So there’s a bit on what’s going on in Australia. In New Zealand there’s quite an interesting thing for Aussie observers, as well. So they’ve got this thing called the Pay Equity Act coming in on the 7th of November, tomorrow. And what it really…it doesn’t do much new in the law over there, it just allows people to make pay equity claims more easily. But just to…I’m not quite sure whether they realize the can of worms that they’ve opened really in that regard. And it’s not to say that I disagree with it.

    And just a brief pressie on what pay equity is. So you might have heard of equal pay, which is the principle that men and women should be paid the same amount for substantially similar work. Pay equity is a sort of sub-branch of equal pay, which is that even if the jobs aren’t the same, if they are of equal value, then men and women should be paid the same.

    So classically in other countries where this has come about has been where you get things like government employees who have a sort of ranking and pay grading system. And you might get someone that, let’s say, is doing some form of manual work to do with infrastructure, laying roads or something like that, who gets paid X, and then you get someone who works in something like a school canteen, a government school canteen, and gets paid Y. And the argument becomes let’s compare those two roles. The role that typically has more females, the canteen role, versus the road-laying role. Why are we saying that that canteen role should get paid less? And they did go into a very complex analysis as the whether the jobs have enough of a similarity or equal value to justify the same pay.

    Now in the UK there was a whole industry of this, there still is a whole industry of this, of lawyers getting paid millions and millions of pounds over there going and disputing these concepts of equal value. And I worry that in New Zealand that they’ve literally just cracked the seal on that industry. And what you’re going to see sprouting out are huge volumes of claims over there of people alleging that job type A should be compared with job type B in order to work out whether they should have the same pay or not.

    So watch this space. It’s a… I sort of feel like any change in law that really just leads to loads of claims through which the only people that benefit are lawyers is probably not a great change of law. That’s not to in any advocate that people shouldn’t receive equal pay, but it’s trying to find a way that just doesn’t lead to huge volumes of claims that are highly complex, take huge volumes of time, and ultimately don’t really benefit the end user, the employees. So watch this space in New Zealand.

    The next one was this really important point about contractors. So if you’ve been reading the news at all in recent months or, frankly, even if you’ve not been reading the news, you’ve just been stuck at home using Deliveroo and so forth as much as I have, you’re probably aware of the contractor versus employee issue that’s going on in the gig economy, as it’s called. And the issue there is this, is that Uber, Deliveroo, other gig economy businesses, marketplace businesses where they’re matching tasks with labor, typically those businesses don’t employ the labor that is being provided through their platform.

    So if I go and get an Uber today, Uber says, “That’s not my driver, it’s someone who has chosen to offer their services through our platform.” And they would argue that the reason it’s definitely not their driver and therefore their employee is that they don’t have control over that person, there’s no mutuality of commitment to them that they will provide them with a certain number of hours or that that person has to do a certain number of hours. So they would say… Oh, and also that the person provides their own equipment, their car. They would say that all of those things go to the fact that that’s not their employee.

    Now it’s obviously to their benefit, the person not being an employee, because they don’t have to provide the car and have the cost associated with that. They don’t have to pay wages in accordance with award, which might include, for example, paying them for fallow time, or waiting time, whilst they’re waiting to get passengers. They don’t have to provide them with the benefits employees get, sick leave, holiday pay, and so on. They don’t have the insurances that go to employing someone, particularly in relation to workers’ compensation, also covering insurances for their cars and things like that.

    So they’re putting the burden of a lot of those things onto the individual, that becomes a lot cheaper for them and frankly makes their business model functional. Remembering that most of these businesses at any scale are just not profitable businesses anyway. So Uber loses, I think, billions of dollars every quarter globally still even two years after it went under new management with a mission to become a profitable business.

    So they…when it started to get challenged by various factions, and understandably so, there’s…it’s certainly what you don’t want to see in any profession, is sham contracting where really all you’re trying to do is avoid liabilities to people and to get them to do jobs on the cheap. And people started to allege that that’s really what’s going on in the gig economy and actually there are…it’s not that people are going into having flexible jobs and the ability to do some bit of Uber driving here or there, this sort of wonderful picture that gets painted of Uber driving, you know, “During the day I do this, and then I actually quite like going out, being an Uber driver at night, and it gives me a bit of extra pocket money,” or something like that. They’re saying, well, that…there may be some pinup examples of that, but the reality is different. And if you look at particularly in the delivery of food, it’s often immigrant workers who are, when they’re looked at on an hourly basis, not receiving minimum wage and are vulnerable to things like accidents without insurance and so on.

    And that’s really been underscored by…and highlighted by…I saw in the paper here that there have been a number of people that have died unfortunately whilst delivering food on bicycles and things like that. And then, of course, you get other issues, criminal behaviors in things like ride type business like Uber and so forth. I read a stat about Uber the other day that they were having, in the U.S. this is, about one allegation of rape in their vehicles every week, until the recent change in management.

    So there’s a huge volume of problems that occur and there’s an increasing level of noise therefore that’s saying, “Well, let’s make these people employees and therefore make the businesses much more accountable to them, as well as ensuring that those employees are not in any way taken advantage of.”

    And the argument flows from that that basically the Ubers of the worlds say, “Well, we can’t operate like that, we’ll never be a sustainable business like that. And if you do that to us, then all of these people that do get this income and have the benefit of flexibilities and so on will lose out. And by the way, Mr. Public, you’ll also not be able to get an Uber and all of the things that you find incredibly useful to you now will get taken away from you.”

    So anyway, that’s a long run up into this issue that there have been various decisions around the world that have said, “Yes, they’re employees,” “No, they’re not employees,” and so on. Basically people are crying out for better consistency. And while ago over here in Aus there was some talk about saying, “Look, maybe they’re not employees or contractors, let’s put them in the middle of the two and create this new thing. We need to move with the times. The world is changing, people want some of the benefits and the flexibility, but we don’t want to leave them open to abuse.”

    In California, just a couple of days ago, there was a victory for the tech companies. So what had happened is that they had put forward a bit of legislation which said, “Let’s create this extra category of person, basically. We’ll… As tech companies, we’ll put away some money for things like insurances and medical insurance and other things in the U.S. We’ll also guarantee that over a certain period they get at least X amount of money. But they’re not employees in the truest sense as to some of the other facets of employment.” And people had been waiting to see if that law was passed. President Trump was very anti the law, he’s very…he was saying, “No.” He took the side of the potential employee, if you like, to say, “No, there’s too much risk of them being abused in that regard.” But just in the last couple of days the law was passed in California to create this extra type of employment, or non-employment, whatever it is.

    And it will be really interesting to see whether that’s what other governments do, what they do over here in Australia, for example. There’s a sort of…a growing tide around the world, including in Australia, a sort of anti-tech company tide, as to whether that’s…people are really going to want to pass a law which is seen as kind of shoehorning into the middle of employment and contractor states is this extra thing just for the benefit of tech companies. You know, why are we creating new roles just to help tech companies out? They’d obviously say that “it benefits the people that advertise their services on our platforms.” But that’s a development that’s quite interesting, “Is there going to be a new type of employee, or non-employee, in Australia and in New Zealand in due course?”

    So that’s a little bit about that. Then finally, the sort of…I call it the HR stuff, but because I’m a bit sheepish and call it leadership advice because I’m not sure…I don’t feel like I’m necessarily in a position to start spouting that on the World Wide Web. But a couple of things this week. We work with as a business, it’s really interesting, a business called the Business Benchmark Group down in Melbourne. And they do coaching and training basically to help people run successful businesses, so they align with us a lot. They don’t do employment relations specifically, but they’ve got a great business. They’re helping out huge volumes of businesses in being better. And that includes, if you ever have a look at their website, doing things like P&L checks and so on. This isn’t a sponsored ad, by the way, I’m not getting any cash from them, from Stefan, down there at this stage. We’ll have a word about that, Stefan.

    No, all it is is me saying essentially a bit of a self-plug. Stefan, one of the things he does is he does podcasts with various business owners. And I did one with him the other day which I really enjoyed, actually. I had a conversation with him about Employsure, how we’ve grown, what the difficult things have been, what I think we’ve done well and not so well and so forth. And we’re going to post it on our social channels, I think, over the coming days.

    And talking of podcasts, I listened to really good ones this week that you might enjoy, as well. So this is one called the Founders Project, which is a lady called Alexa von Tobel, I think her name is, interviews various business owners again and, unlike Stefan interviewed me, the big American ones rather than just random English guys to answer questions. But the…one of the people she got on that was the founder of a company called Slack, which you might have heard of, which is a kind of Facebook for work type app. And then what was really interesting about it compared to the second podcast I’ll mention in a second is that it’s clearly a very successful business, it’s worth billions of dollars, blah, blah, blah, but the founder couldn’t…in my view, couldn’t for his life explain what it is that he did for a living. He was asked quite clearly, “What does Slack do?,” and he just spouted off a load of Silicon Valley jargon about cross-value communication and other things like that that none of us understand what it means.

    And it just reminded me that as a leader in our position as storytellers the most fundamental thing that we do is explain what on earth it is that we do. And second to that, why we do it. So they’re both entwined, obviously. But if you can’t explain what your business does… And I’m sure you’ve all had it where you go onto someone else’s website and you just want to work out what service it is that they provide and you just can’t, you can’t work it out from what it says. And I’ve always been really keen, I’d be interested to hear if we get this wrong at Employsure, but really keen to make sure that Employsure is very, very simple in the messaging of what it is that we do. Why we do it is to help…we say, to help build better business, to help you guys, ultimately. But what it is that we do is really important to be able to explain that.

    And the second podcast was on that “Masters of Scale” one that I sometimes refer to where they interviewed the guy that is currently the MD CEO of a business called H&R Block, which you’ve probably all seen, an accounting, global accounting, practice that you often see in shopping strip malls and so forth. And they… I just think they’re a phenomenal business. It’s the sort of thing we see a lot, but don’t know much about. They’ve got a huge presence in the U.S. helping individuals and small businesses with their tax returns and associated bookkeeping services and so forth. And they’re really quite an understated business, you don’t hear a lot about them. But they, like I say, have a huge impact on business both particularly in the U.S., but a little bit over here, as well.

    And if you listen to what the MD of that says what they do and how they do it and why they do it, it’s really quite impressive. He’s a very, very articulate guy and quite inspirational, I think, to use as leaders to help us understand the importance of being able to communicate the why, the how, but most importantly what it is that we do.

    So that’s, I suppose, really as much, rather than any advice this week, just a bit of a reading/listening list for people. Now over to my backing singer, Stewie. Sing us a song. What have you got for us?

    Stu: I’m just being very calm here.

    Ed: Yeah, you’re very soothing.

    Stu: Ed, hi. We’ve got a couple of comments to kick it off this week. We have from Karen, she says, “Morning, Ed. You do help immensely to our mental state, so thank you.”

    Ed: Thank you, Karen.

    Stu: And Kim says, “I’m back this week, I missed you last week because I forgot about daylight saving for all our Southern friends, as some people have done previously, as well.”

    Ed: Yeah, I’m now able to explain, Kim, why there was only one listener not [inaudible 00:27:24], so thank you. So you and Karen, good to have you both back.

    Stu: [inaudible 00:27:28], thank you. Ed, from Mark, a minimum wage question. “Just need to confirm because now I’m doubting myself. The awards covering my employees were all included in Group 1. There’s nothing I need to do with this November increase?”

    Ed: Mark, if you’re a client of ours, give us a call and have a check. It depends on whether… Obviously it sounds like you are conscious of whether the award applies to you or not. But I would double-check it, that you’ve got a belt and brace set. So give us a call and we can have a talk with you about it specifically.

    Stu: Ed, this one from Clare. She says, “How can they honestly be considering pay rises for anyone right now, let alone $6 an hour?”

    Ed: It’s amazing. So be careful not to be too literal with me on that, so that’s just some positions under some awards will get up to $6 an hour. So it’s not everyone is getting $6 an hour or anything like that, I wouldn’t want that bit of news to catch…get any momentum. But it is a massive pay rise for some people under some awards, which is disappointing. I suppose you could live in New Zealand though where they’re talking about a 20% pay rise across everyone in the midst of all this crisis. So be thankful for little things, that we’re not over there getting hit with that.

    Stu: Ed, a very interesting one from Robin. She says, or I’m assuming she says, “One of my employees has been sharing information on Facebook about the U.S. election being ‘stolen.’ Going back through her posts, she’s also shared some pretty worrying conspiracy theories. This is her personal account, but it would pretty easy to track her profiles back to being one of my employees. I’m worried about the impact to our business reputation. Is there anything I can or should do?”

    Ed: So be careful is the first point, Robin. You know, so remembering that sort of discrimination, I suppose, takes all forms. And there’s a risk that you can assume, particularly in this election where there’s such polarized opinions, that people either side of the debate are somehow wrong in what they’re saying. And therefore jumping down on any of their views could result in some problem, particular when someone feels passionately about them, as this person clearly does if they’re putting up these things.

    So that doesn’t mean that you’re helpless though. What I’d recommend is you have a private conversation and say, “Look, your social media, first of all, is very accessible. That’s a matter for you, generally. But to the extent that it’s being done either on work time or might otherwise impact work, I need to ask you to take those things into consideration.”

    And then, I suppose, second to that, and this is sort of underpinning the house a bit. It’s not going to help you with this immediate problem, but you need to check, Robin, whether you’ve got a good social media policy in place, particularly usage of it and how people represent themselves on it, relative to your business needs.

    You might remember there was the reasonably high-profile case in Australia last year, I think it was, when that famous rugby player, Israel Folau, put various comments on his social media that related to his religious point of view. And there was a big debate about whether he was entitled to do so. It looked like his contract and any policies they had within the sporting body of the Australian rugby union didn’t actually prevent him from doing that, from what it seemed. And therefore it was his own personal opinion on his own personal time and so forth.

    So pulling back from that, trying to distill it into some practice advice for you. First things first, question whether these are really just personal opinions that go against your own. And if so, unfortunately there’s not a lot you can do. If they go beyond personal opinions and they’re somehow made in the voice of the business, you can deal with that. The first stage of which would be to have a conversation about taking them down or limiting access to social media profiles.

    Then in the same point goes if there’s personal time that’s being use, you can’t do a lot about it. But if it was being used on work time, you can make the point to them they shouldn’t be doing that, potentially moving into disciplinary issues. But if you don’t have clear policies around all these sorts of things, I’d recommend getting those in place, as well.

    Stu: Ed, this one from Chris I think might have something to do with your mention of partitions at Employsure a few weeks ago. He says, “Do partitions between desks need to be any particular medical or scientific quality, or can I build them out of stuff I can get from Bunnings?”

    Ed: I think a lot of people have built them from wood stuff from Bunnings. I think there’s two things to say about this. We went through this, as well, in that we engage with two or three potential contractors to give us quotes and so on. And as part of those quotes they all offered different sizes of partitions. It would probably come as no surprise that the smaller ones were the less expensive and I was quite inclined to take those.

    I got some pushback from the relevant team here though who said, as much as anything, it’s not about whether there’s some sort of technical requirement, you know, like the PPE face masks and things like that. You know, most of the face masks that you see around, by all accounts, are scientifically of little value. The medical grade ones people don’t tend to wear, there’s all sorts of fashion ones going on and so on. But what they do do, face masks or any old partition, is give a…first of all, a recognition of the need to maintain a level of social distancing. And second of all, they create an environment of understanding and, I suppose, accountability or sensitivity. And people are therefore more inclined to come and work in that environment.

    So just the act of having some partition is better than none, but I’m not aware of there being any particular standard as to, you know, what the Plexiglas needs to be made of and so on. And I am aware of plenty of clients going and doing what you’re suggesting doing. We probably would have done the same if I was practical in any way. But if I’d been making partitions here, they would be probably razor sharp on the edges and be more of a problem than a help.

    Stu: Ed, this one from Karen, “How do I get more information about pay rises under the awards?”

    Ed: Give us a call, Karen. Or we’ll give you a call, one of the two.

    Stu: And then from Mike, “What is the current status with the Workpac High Court appeal and casual holiday pay?”

    Ed: So hi, Mike. As far as I’m aware, I’m not sure when it’s due to sit, I’ll maybe find that out this week to see, but it will be months rather than weeks before we get anything. Which is part of the reason this article, Judith Sloan, she was saying that it’s a missed opportunity there. The top thing on the agenda of the Zoom-fest, as she liked to call it, should have been dealing with casual workers and understanding that, and that doesn’t seem to have been addressed at all. Instead we’re going to have to wait for the judicial system to work, which is quite a lengthy process.

    Stu: Thank you. Ed, this one from Steven, “I have a casual employee of 10 years and they were eligible for JobKeeper. Though in September they needed to take some leave for their mental health. I couldn’t give them paid leave, as they are a casual JobKeeper employee, so they resigned. They are now all better and want to come back to work. Can I rehire them and put them back on JobKeeper?”

    Ed: Yeah. Actually, I mean what they should have done, which is…”should have” advice is not my juice, but is actually they could have gone off work on…sick without pay, but they would have got JobKeeper because they were JobKeeper-eligible and they would have carried on being your employee under the terms of JobKeeper for that. So there’s a chance you can go back to the ATO and explain that and see whether that would mean they essentially could have continuous employment. Otherwise you’ll need to have a look at the eligibility rules around people coming back to work that were otherwise laid off for a period. And for two reasons I can’t tell you the answer to that. One, because I don’t know off the top of my head. And even if I did, the eligibility of employees is something you should really ask your accountant.

    Stu: This from Elise, “I’m in the fortunate position of being able to hire right now. I’ve had an applicant over 35 who genuinely isn’t right for the job, but I’m now worried about discrimination because of the new rules. What should I do to cover myself?”

    Ed: As you should do with any recruitment process. So first of all, great news that you’re hiring, Elise. But when you’re going through a recruitment process… I’ll give you a sort of story tale I’m slightly embarrassed to have been involved in in part of my career. So when I was a barrister in the UK, I used to work on these cases where this guy had worked out how to make a living out of discrimination claims. And what he would do is this, is he would send in… He was of Indian descent, with various qualifications and so forth. And he would send in an application for a job based upon his real name with those qualifications in his CV. Then he would send in the same application with the same CV, but giving an Anglo-Saxons name and making the application to the job. And if he got any form of differential treatment, he would sue. And he was… I’ll put it this way. He was doing so bloody well out of this that he was hiring pretty expensive barristers to go and argue the cases for him. And that’s all he did for a living, was go around making those applications.

    So yeah, what you learn from that is that you need to have objective processes behind your hiring practices. Which is very hard because in truth, particularly in small business, a lot of hiring goes on gut and instinct as to whether someone will work well with you and within your environment. But you should be keeping notes of interviews to say why you don’t think someone is the preferred candidate or what their pros and cons are, obviously making sure those notes are not discriminatory themselves. But as long as you’re going through that.

    And I suppose the final thing is just to sort of up test, if you like. If you look yourself in the mirror and say that this person is genuinely not being…not selected on the basis of their age, then…and you’ve kept a good, thorough process and you can justify why the other person is better, then you should be fine.

    Stu: Ed, this two-part question from Debbie. “Hi, Ed. If a casual is on JobKeeper and has taken ill with prenatal depression and will be off indefinitely, can we continue paying JobKeeper?,” part one. And part two, “Can we…can an employee use personal leave for IVF treatment?”

    Ed: So part one, a person is on JobKeeper and has gone off on a form of long-term absence. And yes, is still employed, by the sounds of it.

    Stu: Casual.

    Ed: They’re casual, are they? So if… Well, if they’re a JobKeeper-entitled casual, the way in which JobKeeper would work is that they’re in essence entitled to be off and not accepting shifts during that period. So you would carry on employing them under JobKeeper in that regard.

    Can someone use personal leave for IVF treatment? So the rule with regard to personal leave is that you’re not fit to work. So it’s not a very clear distinction. You often see where people try and use personal leave, say for example, for a dentist’s appointment. I don’t want to be flippant in equating the two. But if your personal leave isn’t for things like a dentist appointment, your annual leave you can use for that. So the question is, “Is this person fit to work if they’re going for what ultimately amounts to a treatment that is taken on their option?,” then no, that doesn’t…that’s not sick leave. But if they want to take annual leave for it, they can if you’ll agree. But if they had side effects to the treatment and weren’t fit to work, then yes, that would be sick leave.

    Stu: One more, Ed, from Sharon.

    Ed: Yes, please.

    Stu: She says, “I have a question about JobKeeper. We were accepted for the JobKeeper extension on the 21st of October. STP pay events were lodged on the 24th and the 26th of October, but the ATO hasn’t yet matched them up for us to claim JobKeeper. Have you heard of anything like this? Is anyone else having this problem?”

    Ed: I haven’t heard of that, to be honest, Sharon. I’m sorry, I’d love to give you the comfort of… That doesn’t mean there is a problem, but I haven’t heard about that. It does sound a little bit like an accounting question to ask to your bookkeeper or accountant, as well.

    Stu: And just to wrap it up for this week, Ed, a comment from Sam. “You guys could be like ABBA and have two singers.”

    Ed: What happened with Fleetwood Mac? They had a rift in there. We could be more like Fleetwood Mac and did something wrong.

    Stu: If you wish.

    Ed: I feel like one of them married the other one’s wife or something, so let’s not do that. That would be crazy, but yeah. Yeah. No, I don’t… Yeah. The whole two lead singers is not what I’m after, I’m very much after the One Direction setup, yeah.

    Stu: Okay. We’ll talk about that.

    Ed: Yeah. We’ll take that as more my generation ABBA. Robbie Williams, that’s who I’m going for.

    Good, excellent. Well, thank you, guys. See you next week. Cheers.

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