EQUAL REMUNERATION ORDER
A reminder that the Modern Award is subject to additional increases due and payable around December in line with the ERO decision – members should be looking to review their rates to ensure that they are not paying less than the revised minimum rates required.
Members in the Not For Profit Sector are further advised that the State ‘Social and Community Services Interim Award 2011’ has a Schedule appended to it which also refers to the ‘Equal Remuneration Order’ (ERO). The ERO is also applicable to State employers and there is a scheduled increase to pay rates applicable in addition to the adjustment made under the State Minimum Wage Case as at the 1st July. The amendment to the Award has not been the subject – as far as we are aware – of any announcement within the media or by the WAIRC itself so for a number of employers there is a potential for this to slip under the radar.
The amendment to the Award aligns the State with the Federal ERO decision and may well impact into overall budget bottom lines for NFP’s in the State who utilise the State Award.
There have been a number of decision made by the Courts in recent months that have been scathing of the lack of due process used by employers when conducting internal investigations into various allegations of misconduct etc within the workplace
- Identify the needs for an investigation.
Several situations should prompt an employer to consider conducting and internal investigation, including:
- a formal employee complaint
- harassing, threatening, intimidating or violent behaviour
- an administrative agency inquiry
- the receipt of a lawsuit
If an employee asks that no action be taken in response to a complaint, the individual receiving the complaint should inform the employee that he or she has a responsibility to follow up any allegations made.
- Determine the goals of the investigation.
To conduct an appropriate investigation, employers should identify goals they want to achieve. Determining goals before an investigation begins will help employers take proper investigative measures. If misconduct is being investigated, employers should start reviewing the actual workplace rule that has allegedly been violated.
- Assess the potential disadvantages of an investigation.
Even if an investigation is required by law, potential risks should be recognised. Possible disadvantages to conducting an investigation may include:
- adverse publicity;
- civil litigation by people who learn of corporate wrongdoing; or
- creating evidence that may be used against the company.
- Select the appropriate investigator.
This is the most important part of the strategic plan. The investigator should have a reputation for honesty and credibility. Employers should anticipate that the investigator will have to appear before a jury if litigation results. Therefore, the investigator should be able to appear as an authoritative and credible witness.
The investigator must also be a “competent historian’ because any documents or records generated during the investigation may become evidence in a lawsuit or government inquiry.
- Identify potential witnesses.
Prior to the investigation, a list of potential witnesses, all of whom will be candidates for interviews, should be developed. Co workers who may have worked where the alleged misconduct occurred should be considered. Witnesses should be divided according to those with firsthand knowledge of important facts and those may have relevant information but do not need to be interviewed personally.
Individuals not interviewed should be asked to prepare and sign a written statement of any facts they can contribute. During interviews, witnesses should be asked to identify any other people that may provide important information.
- Identify documents to be reviewed for a defensible resolution.
The following items should be reviewed:
- rules, policies, and procedures
- memoranda or notes regarding the incident
- time cards, logs or diaries
- expense reports and receipts
- communications to employees
- prior complaints
- personnel files and security files
- manager’s notes and files
- samples of the employee’s work and others for comparison
Keep in mind that email may be used in a lawsuit. Therefore, sexual harassment and anti-discrimination policies should refer to explicit prohibitions on the use of email for such purposes.
- Prepare a strategy for the investigation.
Establish a timeline for the investigation that includes each step that will be taken and a completion date. Be sure to consider how each phase of the investigation leads to or supports the next step.
The chronology of interviews can either contaminate or enhance the success of the investigation. A contingency plan should be in place in case a premature disclosure jeopardises the investigation strategy.
- Prepare an outline for questions.
To ensure a thorough and consistent line of questioning, prepare and outline of questions prior to interviewing witnesses. If standard questions are used for all witnesses, the answers can be compared and contrasted. Many investigations also prepare a list of supplemental questions to ask witnesses who have knowledge of particular parts or events.
- Establish special, secure files and records.
Evidence and the investigator’s records should be maintained in special, secure files. Other than working drafts, documents should not be destroyed once the investigation has started. Destruction of documents can have serious legal consequences. Records should be maintained after the investigation concludes because they could be used to establish patterns and practises of behaviour in the future.
- Review the investigation plan periodically.
The investigation plan should be modified based on the received feedback. Modification may include: filling in loopholes and oversights; paying attention to the timing of the investigation; determining whether new leads must be investigated; and identifying evidence of other misconduct that may require a separate investigation.
Not sure of your obligations? Call us on 9792 4451 to discuss.