Australasian Leisure Management Magazine
“In a major coup for ASSA, it has exclusively retained Michael Taylor, of HMT Consulting, for its Workplace Relations Advisory Service. ASSA believe Taylor to be the national expert on the Fitness Industry Award – and even more-so when it comes to Swim Schools. He and Gage were at the forefront of the establishment of the Award sections pertaining to Swim Schools, being instrumental in getting the one hour minimum term of engagement for casual swim teachers – among other benefits for employers. Both are currently jointly appearing before the Commission’s 4 yearly review – submitting and discussing re casuals, broken shifts and definitions.”
Australasian Leisure Management Magazine
Many small to medium-sized businesses are experiencing difficulties in an ever increasingly competitive environment; gaining and maintaining the best from your team is fraught with many challenges, some of which are explored here.
Michael Taylor - Principal Consultant, HMT Consulting.
Overview: (from a legal perspective):
An employer has the option of setting out an employee’s obligations in express terms in the form of a common law labour contract. However, regardless of whether such a document is produced and signed by both the employer and the would-be employee, there are certain fundamental duties imposed on all employees;
Above all else, consistency, transparency and excellent communications are the keystones to managing performance in the modern workplace
An escalating problem. By Michael Taylor – Principal Consultant, HMT Consulting.
A recent decision by a member of the Fair Work Commission (F.W.C), that it was “not unjust or unreasonable” to require employees to provide oral fluid (saliva) and urine samples as part of a bona-fide workplace drug testing regime, canvassed many issues in regard to this urgent and escalating workplace matter.
Commissioner Cambridge had intervened as a consequence of a dispute notification by the CFMEU, pertaining to the provisions of an enterprise agreement (CFMEU V Port Kembla Terminal Ltd).
The union argued that the initiative of the employer in seeking to implement a testing regime [albeit, one that was underpinned by the ‘Alcohol and Other Drugs Standard’ (AOD Standard)], particularly in relation to urine sampling “involved an illegitimate interference with the privacy of an employee…. As urine sampling identified an employee’s historical use of drugs which may bear no relevance to their capacity to safely perform work.”
For its part, the employer was strongly of the view that the Commission should not interfere with “the right of the employer to manage its operation in a manner which it believed properly discharged its obligations to provide for a safe workplace.”
Points of consideration and findings:
The dispute involved a contest about the utilization of urine sampling as part of a workplace drugs regime. The debate focused on whether urine or oral fluid, was the most appropriate method of sampling for workplace drug testing. Expert evidence was led and reference made to recent, significant, cases touching upon the nature, scope and targets for testing.
It has been established by Industrial Tribunals that “oral fluid testing is more focussed on acute impairdness, whereas urine testing is more likely to uncover patterns of drug use which may lead to levels of impairment and safety concerns.”
A FWC full bench has determined that “on the one hand, there is the interest of employees in not having their private behaviour subject to scrutiny by their employers… On the other hand, there is the interest that employers and employees have in ensuring a safe working environment by the taking of all practically available measures to detect and eliminate or manage risks to safety. Both employers and employees….are subject to statutory duties concerning workplace safety, breach of which may result in criminal liability, and employees exposed to the possibility of injury or death if workplace risks to safety are not identified and either removed or controlled.”
Commissioner Cambridge reinforced this view in finding in favour of the employer’s testing regime; “…. Any discomfort or embarrassment about providing a urine sample would be of negligible consequence if such discomfort or embarrassment avoid death or debilitating injury suffered at work. The balance, in my view, would overwhelmingly favour the benefits of adoption of a superior drug detection and deterrence mechanism for the cost of the discomfort, inconvenience or embarrassment of having to provide a urine specimen…”
In this instance, FWC also took heed of the following points:
- In workplaces where occupational and public safety risks are present, drug and alcohol testing require mechanisms which improve safety for workers and the general public;
- Individuals who attend “high risk” workplaces under the influence of drugs or alcohol, at a level of recognised impairment, are likely to endanger the lives of others;
- Drug or alcohol addiction or abuse issues which have been identified through workplace testing, should be recognised as problems that require a treatment program and not necessarily disciplinary action;
- It is unrealistic to attempt to codify workplace drug testing by way of universal rules;
- The particular facts and circumstances of each case of drug detection in the workplace need to be carefully assessed and judged accordingly. This particularly in relation to the detection of the “hangover” effects of drugs like methamphetamine (this being just one example where there is a compelling basis for detecting long-term drug use).
ICE in the working environment:
The Commissioner’s comments coincide with rising concerns about the level and effects of crystallised methamphetamine (ICE) in Australia workplaces. In a recent radio interview the National Secretary of the Construction Division of the CFMEU, Dave Noonan observed that:
“This is one drug that’s changed the game. For people operating dangerous vehicles or machinery, it creates a toxic combination. During the high, users experience a surge of overconfidence and see themselves as invincible. Then the crashing low that follows brings sleep deprivation, blurred vision and fatigue.”
Concurrently, Victoria Police have reported an increase in truck drivers being tested and found to be under the influence of ICE.
Unfortunately experts acknowledge that most drug tests may not capture the full impact of this drug. The problem being that metahamphetamine is eliminated from the body much faster than recreational drugs such as cannabis. This means that rostered workers coming back from several days off-duty may be returning ‘clean tests’ and therefore it may be the case that usage of the drug is under-documented.
However, as debated in the case before Commissioner Cambridge, urine, blood and saliva testing can each detect drugs other than alcohol, however, each has its own advantages and disadvantages.
This brings into focus the need to foster a ‘no tolerance’ policy in the workplace; this goes beyond simply introducing a random testing regime for the occasional “gotcha moment”, with the intention of building a case for a summary dismissal.
The more profitable approach, in terms of costs and workforce welfare is to create a strong workplace culture ‘where turning up clean to work isn’t just some rule from on high – but a standard a worker’s peers and colleagues expect and support.”
Two foundations for such a culture are:
- Education programs underpinning the negative health effects of drugs and alcohol, particularly with reference to the workplace. The provision of training to supervisors, managers and OH & S Representatives in how to recognise signs of intoxication, and how to approach a person affected with drugs and alcohol.
- Development and application of a set of policies designed for the specific needs of your workplace (which may or may not incorporate a drugs testing regime). However, it is strongly recommended, that they should provide counselling and support services for those individuals who acknowledge that they have an addiction problem.
Appropriate structures must be put in place, to ensure all stakeholders are aware of who to go to as situations unfold, and who is authorised to act and in what circumstances.
Policies, procedures and structures should be reviewed regularly, particularly in light of new or developing social challenges (such as ICE).
Drug and alcohol abuse (addiction) is a significant challenge to all workplaces, especially to those delivering water safety education or supervising aquatic facilities, leading outdoor recreation groups, or operating amusement rides. They share many common elements - people (particularly youngsters or the elderly), hazardous environments, complex electrical and or mechanical systems, all requiring a high level of supervision in unusual (challenging) settings. All share the same duty of care.
Drugs & alcohol are not matters of concern only to the operators of airlines, railways, mines or long haulage fleets.
Acknowledgement: some material appearing in this article was sourced from “Is your workplace drug policy doing enough to fight ‘ice’?” – by Joseph Nunweek – Health & Safety bulletin.
Dehydration is a major risk associated with prolonged, strenuous, outdoor activities which can include professional and recreational water sports. The risk is compounded in hot weather, and if not managed appropriately can have major consequences.
What is Dehydration?
Dehydration is simply loss of body fluid, primarily through sweating.
Our bodies contain, on average, 60% water, 40% of which is stored in muscle.
As little as a 2% decrease in body fluid can result in dehydration which will have a detrimental effect on sport performance.
In an exercise situation profuse sweating and rapid expiration can cause dehydration.
Excessive sweating does not only cause fluid loss but also a decrease in the level of electrolytes, mainly sodium and potassium. Sodium is essential for fluid retention and potassium is responsible for nerve and muscle function. If the levels of either or both become sub-optimal the body is unable to function efficiently and problems can occur, ranging from muscle cramping to, confusion and in extreme cases, heart and kidney failure and even death.
Signs of Dehydration:
The foremost treatment for dehydration is prevention.
On average our bodies require 2 - 2½ litres of fluid per day to maintain adequate hydration levels.
Sweating, increased activity and heat stress will cause fluid loss therefore fluid intake should equal or preferably exceed the amount lost.
An adequate intake of water will be sufficient to prevent dehydration in normal circumstances, however in hot weather, or during periods of increased physical activity where there is a danger of extreme dehydration occurring, water alone will be inappropriate. The body requires sodium in order to retain fluid so therefore a higher intake of fluids with the correct balance of electrolytes and carbohydrates, in the form of sugar, will be required.
It should be noted that fluids which are high in sugar are not ideal as these could potentially worsen the degree of dehydration, therefore fruit juices and some Sports and Energy drinks should be avoided if possible.
Alcohol and caffeine containing drinks are not ideal as these will only increase the level of dehydration because of their diuretic effect.
Thirst is one of the last manifestations of dehydration and as exercise blunts the thirst mechanism it is therefore essential to be conscious of the need to rehydrate during periods of physical activity.
The Outdoor Recreation Industry operates over a wide spread of hours and in very challenging conditions. Employees are routinely called upon to work extended periods “in the field”, and often in remote locations, well removed from their home-base. Coincidently, Outdoor Leadership entails the delivery of training to novices, relating to complex/ physically and often demanding activities, in hazardous conditions.
The combination of the environment, nature, and the organisation of the work, pose significant challenges to the workforce and those who manage them. This article explores the ramifications.
Custom & Practice:
Whilst the Fair Work Act 2009, and the Modern Awards made in accordance with its dictates, anticipates ordinary hours being worked over an average (over four or six weeks) of thirty eight, with undisturbed periods of eight to ten hours between work on consecutive days; the Outdoor Recreation Sector works to a very different model.
Periods of work are organised around shifts easily exceeding the award-base “norm” of eight to ten hours, over a span of nine to eleven consecutive hours (inclusive of unpaid breaks). Often enterprise-specific arrangements facilitate work being scheduled:
- over spans of twelve to sixteen consecutive hours, rostered in blocks of two or more periods per day;
- regularly exceeding thirty eight over seven days;
- on more than six consecutive days.
Sometimes distinctions are drawn between “active” and “passive” time; the former involving the provision of training or support to Clients (being paid time) and the latter involving rest periods,(that entail the employee being available to meet extenuating circumstances, with little or no delay), and or, traveling to and from remote locations (being unpaid).
Working long and irregular hours associated with physically and or mentally arduous activities can pose significant health and safety risks, as well as organisational risks. Employers have obligations to minimise these risks to workers, and clients, alike, stemming from a general duty to provide safe systems of work and a safe working environment.
From a health perspective; stress, fatigue, depression, headaches, high blood pressure and increased risks of developing stomach ulcers and heart disease, can all be contributed to by poorly designed and managed patterns of work.
From an organisational perspective, productivity and efficiency suffers, often manifested by:
- Increased absenteeism and higher than average staff turnover;
- Degraded staff morale;
Prolonged work periods often see employees at their least competent and watchful, therefore vulnerable to making errors of judgement if unexpectedly recalled to duty to address an emergency. Further, hand-over arrangements suffer, as essential information to ensuring a transition from one team to the next is prone to being overlooked, incomplete or miss-communicated, increasing the potential for mischance/accidents.
Team members who have worked continuously for 8-10 hours in a remote location, are not the best candidates to act as drivers for people and equipment back to home-base.
Whilst payment can be an inducement to perform “over and beyond”, dollars cannot reduce the loss of efficiency associated with fatigue.
Acknowledging that organisations in Outdoor Recreation are routinely dealing with a diverse group of Clients, with significantly different needs/requirements; the following framework is recommended in relation to the organisation of “scheduled” work:
- Work should be rostered over not more than six consecutive days (and ideally not exceeding 48 hours of ‘active’ duty);
- Minimise the number of occasions where either active or passive activities are required over seven consecutive days;
- Shifts of twelve or more ‘ordinary hours of active duty’, should not be rostered over more than four consecutive days;
- Keep work requiring both day and night active duty to a minimum – if a program has an “after dark” component, consideration should be given to having a specific team to cover these requirements; concurrently, a nominated team member(s) should be rostered on “standby”, to cover any night time contingencies;
- Periods of active duty ,(either scheduled or unscheduled – in the case of ‘call-outs’), should be separated by at least eight continuous hours off-duty, before the commencement of any further work. This is an imperative for team members undertaking high-risk work;
- Ensure that team members have sufficient (paid or unpaid) breaks during work periods, particularly those working shifts in excess of eight hours, in inclement conditions, or undertaking high-risk work;
- Always ensure that time is allocated to ensure that there is an effective hand-over between work teams; (co-incidentally, documented ‘hand-over policies’ should be put in place well beforehand);
- Either prior to engagement, (in the case of casuals), and or on each occasion (in the case of weekly employees), that a program is delivered or assignment undertaken, ensure that a formal ‘fitness for work assessment’ is implemented in relation to all team members, from the Supervisor down. At the very least this should entail observing and communicating with the workers to ensure they are able to perform their allocated tasks, in the environment, within the timeframe required, and using the available resources.
A final point; stress and fatigue related issues impact equally on team members, regardless of their employment status, or history. On occasions, unfortunately, casual employees are treated differently to ‘permanent’ team members in relation to rostering. This is a counter-productive, and potentially dangerous.
Many employers in the Fitness, Leisure, Retail and Hospitality sectors require maximum flexibility to ensure the continuing success of their businesses.
Significant numbers have plumped for ‘casualised’ workforces when faced with dynamic market conditions for their goods or services. In the process, some have fallen foul of recent developments in workplace law by overlooking obligations they assumed they did not incur through engaging (regular) casuals.
A casual employee has traditionally been viewed as an employee who is employed to perform work on an “as needs” basis, without a regular work pattern.
"Employers who have entered into IFAs (EFAs) previously, should acquaint the individuals party to them of these recent changes. All Managers directly involved in the process of entering into IFAs should be fully briefed as soon as possible"
During 2013 a Full Bench of the Fair Work Commission took on the task of reviewing the Award Flexibility provisions of all Modern Awards. On 15th April they determined to vary the model flexibility clause appearing in all Modern Awards after consultation with National Employer and Employee Organisations and other interested parties.
Further consultation and hearings culminated in the issuing of orders on 3rd December, varying all Modern Awards, with consolidated versions of the documents being available from 23rd January 2014.
The Commission was responding to:
Reasons & Impact:
The original model flexibility provision, in part, read:
“The agreement may be terminated:
(a) By the employer or the individual giving four weeks notice of termination in writing, to the other party and the agreement ceasing to operate at the end of the notice period; or
(b) At any time, by written agreement between the employer and the individual employee.”
In summary the Full Bench:
HMT Consulting Recommends
Employers who have entered into IFAs (EFAs) previously, should acquaint the individuals party to them of these recent changes. Further, all Managers directly involved in the process of entering into IFAs should be fully briefed, asap.
"Bullying in the workplace and associated inter-personal matters requires a mix of skills and experience that many persons in authority in the workplace may not have"
Historically federal and state governments have sought to regulate industrial interaction of ‘groups’ (employers and their organisations and employees and their organisations – unions).
Issues were dealt with at the macro level (across industries and sectors of the economy); the emphasis being on resolution, or avoidance, of ‘disputes’- given the title of ‘Industrial Relations’.
During the 1990s the emphasis moved down to the enterprise level, however the focus was still on collective interactions, primarily dealing with bargaining processes. In 2006 the Howard Government’s Work Choices legislative package created a significant, (in Australian terms), departure from the traditional ‘Industrial’ (third party resolution approach) to that of ‘Workplace Relations’, with the relationship between an employer and the individual worker as its core.
Instead of ‘disputes’ and ‘bargaining’, the new legislative package had front and centre – rights & obligations. The 2009 Fair Work Act, whilst retaining many of the least controversial aspects of its predecessor, seeks to go beyond the relationship between employers and their employees; with an emerging trend to address, in the broader context, the balance of work and lifestyle.
Legislation now deals, or is intended to deal, with both employment and inter-personal relationships. The latest manifestation of this trend is the anti-bullying measures that came into being on the 1st of January, as part of the Fair Work Amendment Act 2013.
So what constitutes bullying?
For the purposes of the new federal law, bullying occurs when: - A person or group of people repeatedly behaves unreasonably towards a worker or a group of workers at work; The behaviour creates a risk to health and safety.
What does not constitute bullying?
Whilst the above are all examples of management action occurring in all workplaces on a day to day basis, if mishandled, they have the potential to fall foul of the new law.
Who is covered by the new law?
As mentioned in the introduction, industrial laws, until recently, have sought to regulate the relationship between employers and their employees (workers). The provisions of the Act have an expanded definition of ‘a worker’ which includes
The term ‘Worker’ is only qualified by the requirement that the ‘Employer’ is a ‘constitutionally-covered business’ [i.e; a constitutional corporation – a proprietary limited company or an incorporated association conducting trading or financial operations].
Consequently, a far wider population falls within the umbrella of the new provisions, than has historically been the case.
How to minimise the risk of bullying:
When all is said and done, bullying is a workplace health and safety matter; and as such employers have a duty of care to provide a safe workplace (free of intimidation and fear). As with other workplace grievances, complaints of bullying are best dealt with promptly and effectively, within a recognised and observed framework;
Managers should encourage subordinates to raise issues within the workplace in the first instance. Employees should be encouraged to communicate their concerns to
hese documents must be widely available to all employees and regularly reviewed to ensure that they meet the needs of the organisation and all stakeholders (Management, employees and clients). The trends referred to in the introduction to this article put greater emphasis on the importance of recruiting and promoting the right candidates in the workplace. A mis-alignment of an individual, their abilities and personalities with their role and responsibilities has the potential to cause stress to the employee and those around them in a working environment.
Bullying is but one symptom of poor or under-resourced human resource management. Therefore it is important that persons in a position of authority (from the proprietor to first-line supervisors) are aware of their responsibilities under the new law and are provided appropriate training to deal with circumstances as they arise.
Bullying in the workplace and associated inter-personal matters requires a mix of skills and experience that many persons in authority in the workplace may not have, or if they do would benefit by outside assistance.
Employer organisations, industry or trade groups, chambers of commerce, Department of Business in most states or territories offer help and advice to small business operators.