There is a new risk for Employers to contend with now that the Fair Work Agency is operating, as from this month.
The Agency is intended to take a proactive approach to enforcing employment rights derived from the new Employment Rights legislation which is now in force.
It has wide ranging powers, including the power to investigate, to audit records, to enter premises, and to take action without there being any formal complaint or claim being made by an employee – or doing so where an employee does not wish to bring any complaint against the employer.
This changes the nature of the risks faced by Employers. At any time now an Employer will need to be able to show with appropriate evidence that it is complying with the
legislation, and just how it is managing any employment issues before they reach the point of potentially being an employee Tribunal claim, so issues with an employee can become “live” long before an Employer has to consider defending a tribunal claim.
Employers are likely to need more support from law firms, and in different ways, to ensure compliance with the new legislation, and to prepare for the possibility of Agency interventions.
That means having in place the legal advice and systems to deal with the new risk landscape. But it also means being prepared, but in an ongoing, proactive way, and not, as
previously, in a reactive way in responding only if and when a Tribunal claim is threatened, or submitted.
This may also include taking out Employment disputes insurance, which may be available to cover awards and the legal and other costs of interventions, and dealing with claims.
Employers should also consider if their existing systems need to be improved to ensure they will have and can retain accurate records, and in formats which assist in providing an audit trail.
But it is also important to ensure that any issues with employees are flagged up early to senior management, and that the Employer can properly engage, at an early stage, with the employee, and offer support to the employee, and ensure that the Employer’s response is recorded appropriately.
To achieve all of that Employers may need appropriate advice, and on an on-going basis. We are willing and able to provide the required assitance.