Spataro and Secretary, Department of Employment

[2018] AATA 2139

Spataro and Secretary, Department of Employment [2018] AATA 2139 (6 July 2018)

Division:                 GENERAL DIVISION

File Numbers:        2016/2492 and 2016/2603 

Re:Carmelo SPATARO and Krzysztof (Chris) STRUS  

APPLICANT

Secretary, Department of EmploymentAnd  

RESPONDENT

DECISION

Tribunal:F D O’Loughlin, Deputy President 

Date:6 July 2018  

Place:Melbourne

The Tribunal sets aside the decisions under review. For the purposes of s 6(5) of the Act[1], for each applicant’s employment with Skinner Engineering[2] the governing instrument pursuant to which each applicant’s redundancy pay entitlement is to be calculated included the Policy.[3]

[1]           Fair EntitlementsGuarantee Act 2012 (Cth).

[2]           Skinner Engineering Pty Ltd.

[3]           The June 2010 Skinner Engineering Pty Ltd Human Resources & Policy Procedures Manual.

........................................................................

F D O’Loughlin, Deputy President

Catchwords

EMPLOYEE ENTITLEMENTS - Redundancy pay entitlement – insolvency of employer – calculation of redundancy pay entitlement under governing instrument – whether company policy falls within definition of governing instrument – decision under review set aside

Legislation

Fair Entitlements Guarantee Act 2012 (Cth) ss 5, 6(5)

REASONS FOR DECISION

F D O'Loughlin, Deputy President

6 July 2018

1. Both applications concern entitlements under the Act[4] consequent upon non-payment of redundancy entitlements on termination of employment due to insolvency of an employer.  And disposition of both applications turns on whether the Applicants’ unpaid redundancy entitlements are to be calculated by reference to the Policy.[5]  If that question is answered in the affirmative, that answer will determine the matter because the Applicants and the Respondent are in agreement as to other matters relevant to calculating the applicants’ respective entitlements.  Further, if the Policy was the source of the applicants’ redundancy pay entitlement then questions of calculation on alternative bases do not arise.

   [4]           Fair EntitlementsGuarantee Act 2012 (Cth).

   [5]           The June 2010 Skinner Engineering Pty Ltd Human Resources & Policy Procedures Manual.

2. Both Applicants were employees of Skinner Engineering[6] before their respective employments were terminated on account of the insolvency of Skinner Engineering.  Neither Applicant was paid his redundancy entitlement, on whatever footing the entitlement was to be calculated, and both Applicants made claims to the Department[7] under the Act.

   [6]           Skinner Engineering Pty Ltd.

   [7]           The Department of Employment.

3. The Policy is set out in full (replicating the apparent numbering and errors in it) in the Annexure.

   Legislation

4. Central to the present application are:

   (a)S 6(5)[8] of the Act which is in the following terms:

   [8]           Which is accompanied by an explanatory introduction in s 6(1) in the following terms:

   Redundancy pay entitlement

   (5)The person's redundancy pay entitlement is the amount of redundancy pay the person is entitled to under the governing instrument from the employer for termination of the employment.

   (b)the definition of governing instrument in s 5 of the Act which is in the following terms:

   "governing instrument" for employment means any of the following that governs the employment:

   (a)a written law of the Commonwealth, a State or a Territory;

   (b)an award, determination or order that is made or recorded in writing;

   (c)a written instrument;

   (d)an agreement (whether a contract or not).

5. The terms of the definition of governing instrument, in the context in which they are used, namely a system directed to quantifying employees’ rights and entitlements that have not been satisfied, mean that any one or more sources of employee rights and entitlements that is or are a written law, an award or like instrument, a written instrument or an agreement as listed in the definition will qualify as a governing instrument. 

6. In terms of the legislation under review the issue for determination is whether, for the purposes of s 6(5) of the Act, the governing instrument pursuant to which each Applicant’s redundancy pay entitlement was to be calculated upon termination of each applicant’s employment with Skinner Engineering included the Policy. To answer this question, it is necessary first to determine whether the Policy could be a governing instrument at all, and second, if it could be such an instrument, whether it was in respect of the applicants’ employment.

   Facts

   Mr Strus

7. Mr Strus commenced his employment with Skinner Engineering as a full time Project Engineer.  Initially that employment was pursuant to a contract formed orally in September 1990.  In February 1994 Mr Strus was given a letter that dealt with some of the terms of his employment and in October 1999 he was appointed to the Senior Project Engineer role.  In September 2002 he was appointed to an Engineering and Installations Manager role.  Mr Strus was a very senior employee in the Skinner Engineering organisation.

8. In October 2010 Mr Strus was given a copy of the Policy by the Skinner Engineering managing director, a Mr Patel.  Following Mr Patel’s employment being terminated in March 2011, Mr Strus assumed additional responsibilities for which he received additional remuneration in the form of a monthly allowance.  Again in July 2011 Mr Strus assumed further responsibilities previously performed by the General Manager.  At or around this time Mr Strus was given the Policy and told to follow it in conducting staff performance appraisals.  In June 2012 Mr Strus was promoted to a Senior Manager role.  At various times as Mr Struss’s employment role changed, he received letters setting out his new role and remuneration.  None of these letters referred to the Policy.  In April 2012 Mr Strus engaged a new Project Engineer/Estimator who was to report to him.  Mr Strus was told (by a director of the Skinner Engineering shareholder who appears to have become more involved in Skinner Engineering operations following Mr Patel’s departure) to ensure the Policy was referred to in the new employee’s contract of employment.  In May 2013 Mr Strus reverted to a prior position of Engineering and Installations Manager.  In March 2014 Mr Strus’s employment was terminated at virtually no notice, and Skinner Engineering went into liquidation.

9. Mr Strus supervised other Skinner Engineering staff members’ including Mr Spataro’s work by reference at least as to part by the Policy.  He was quite satisfied that the terms of the Policy applied to regulate Mr Spataro’s terms of employment. 

   Mr Spataro

10. Mr Spataro commenced his employment with Skinner Engineering as an assistant to the machine shop manager in February 1983.  In 1987 his role was in administration as a project estimator.

11. In either late 2010 or early 2011 Mr Patel provided Mr Spataro with a copy of the Policy in a conversation which indicated that the Policy was to apply to Mr Spataro and other office staff. 

12. In March 2014 Mr Spataro’s employment was terminated at virtually no notice and Skinner Engineering closed.

13. At a 4 April 2014 creditors’ meeting, Mr Spataro was advised to make a claim under the Act.  Mr Spataro made such a claim, but did not quantify it by reference to the Policy.   A redundancy pay entitlement was allowed.  Mr Spataro sought review on the basis that he was entitled to more under the Metal, Engineering and Associated Industries Award 1998.  Six days after seeking that review Mr Spataro was provided with a copy of the Policy.  The review produced a higher entitlement determined under the Skinner Engineering and AMWU Collective Bargaining Workshop Agreement 2011. 

    Both Applicants

14. Neither Applicant had a single document that reflected all of the terms and conditions of their contract of employment.  Nor does either Applicant have any document addressed to them specifically including the Policy in their terms of employment.

15. Claims to redundancy entitlements calculated in accordance with the Policy have now been asserted whereas they were not initially so asserted, for reasons of either a need to assert an entitlement to something quickly, or an absence of a copy of the policy needed to prove the entitlement.  

16. Closure of the business was rapid and caused a degree of confusion.

    Skinner Engineering

17. Skinner Engineering had two groups of employees: office staff and floor staff.  Floor staff were employed under either an award or an enterprise bargaining agreement.  The Policy was intended to regulate the entitlements of the office staff, a small number of people.

18. A copy of the Policy was generally available to office staff while the Skinner Engineering business operated.

19. Prior to March 2014, Skinner Engineering was sold by its Malaysian owners and Mr Patel returned to manage the Skinner Engineering business.  Apparently Mr Patel informed the respondent after enquiries were made of him by the Respondent that unless the Policy was specifically included in an employment agreement it was not to apply for the particular employee.  This communication was not asserted as a fact by the respondent and Mr Patel was not called to give evidence.  In the absence of the Respondent contending that the communication occurred and evidence from Mr Patel, the present applications will be determined on the footing that the communication did not occur, and that there was not a condition that the Policy needed to be specifically included in an employment agreement before it was to apply for a particular employee. 

20. Skinner Engineering entered into liquidation on 24 March 2014.

    The facts and the Act

21. The Applicants and the Respondent appear agreed in the approach that needs to be taken in determining whether the Policy forms part of the relevant employment agreements with Skinner Engineering.  The Respondent says that a reasonable person test applies to address the question of whether a promise would conclude that a promisor intended to be contractually bound by the promise under review.[9]  Mr Spataro contends that the question needs to be determined objectively,[10]  And Mr Strus does not disagree.  There is no error in these contentions and that approach will govern the determination of the applications.

    [9]Referring to Goldman Sachs J B Were Services Pty Ltd v Nicolich (2007) FCR 62 at [23] and the Modern Contract of Employment (2012) at 89.

    [10]Referring to Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179 and the same paragraph in Goldman Sachs.

22. The Policy has many if not all of the hallmarks of a general statement of employment rights, entitlements, obligations, and conditions that would usually be found in an employment contract.  It has the appearance and content of having been prepared by a person who might be described as an employment lawyer or practitioner.  No fewer than four times the Policy describes itself as an agreement, and in three places makes clear that its conditions are to be subservient to more favourable employment conditions to be found in other instruments or agreements regulating particular staff member’s employment conditions.  It asserts conditions entitling the employer to end employees’ employment.  The Policy is expressed in promissory terms with respect to employee entitlements across various topics customarily found in employment contracts, such as leave entitlements of various kinds and redundancy entitlements.  A range of usual obligations are also imposed, such as disclosure of conflicts of interest, maintenance of confidential information, and sanctions for breaches of obligations.  The policy was not kept secret.  It was available for all of those intended to be affected by it.  Senior management were instructed to manage by reference to it.

23. The only objective conclusion to be reached is that the Policy was intended to be a set of terms and conditions having contractual force within the Skinner Engineering organisation.  That made the Policy capable of being a governing instrument in the requisite sense.

24. The second question to be answered, whether the Policy was a governing instrument in respect of the Applicants’ employment, calls for examination of the inter relationship between the Policy and the Applicants’ employment.

25. On the evidence led, the conclusion to be reached is that the Policy was an instrument that set out a substantial body of terms and conditions of the Applicants’ employment.  It was a set of terms and conditions that applied to office staff.  The Applicants were two such staff members, and there were few others.  There is evidence of communication of the Policy terms to the Applicants and there was continued employment after that communication, which can only be taken to mean that the Applicants accepted those terms and conditions.

26. That the Applicants did not have express letters or documents that confirmed the incorporation of the terms of the Policy into their employment contracts does not mean that the terms are not so incorporated.  Similarly, the fact that claims were made for amounts less than the entitlements conferred by the Policy does not mean the entitlements did not exist.  Any inconsistent conduct has been explained.  The fact that a more recently hired staff member had the Policy specifically referred to in his letter of employment does not alter the conclusion either.  It was apparent that the inclusion of the cross reference and incorporation for the new employee was at the direction of a more recently involved person (a director of Skinner Engineering’s shareholder), whereas the employment arrangements for the Applicants were set in place earlier by Mr Patel whose employment had ended.

    Decision

27. The Tribunal sets aside the decision under review. For the purposes of s 6(5) of the Act, for each Applicant’s employment with Skinner Engineering the governing instrument pursuant to which each applicant’s redundancy pay entitlement is to be calculated included the Policy.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of
Deputy President F D  O'Loughlin

....................[sgd]....................................

Associate

Dated 6 July 2018

Dates of hearing	20-21 April 2017
Counsel for the Applicant (Spataro)	Ms F Batten
Solicitors for the Applicant(Spataro)	Kelly Workplace Lawyers
Counsel for the Applicant (Strus)	Ms F Knowles
Solicitors for the Applicant (Strus)	Holding Redlich
Advocate for the Respondent	Mr C Sibley
Solicitors for the Respondent	Clayton Utz

SKINNER ENGINEERING PTY LTD

HUMAN RESOURCES & POLICY PROCEDURES MANUAL JUNE 2010

CHAPTER ONE – INTRODUCTION

INTRODUCTION

The Human Resources Policy & Procedures Manual for Skinner Engineering Pty Ltd is designed to provide information and guidance to all staff employees. It represents the philosophy of the company and supersedes all previous HR policies and manuals.

This manual contains policies and procedures that, together, form a set of guidelines under which human resource decisions can be made. Exceptions may be made from time to time at Company discretion to reflect individual cases and circumstances.

The policies and procedures outlined in this manual are the company policies that will apply to all employees, however, in some instances there may be terms outlined in an employee’s employment that may vary or are more favourable than what has been outlined in the manual due to negotiations or historical factors. Should this be the case, the employment agreement terms shall always govern.

You will be required to comply with all Company policies and procedures pertaining to employees and business of Skinner Engineering Pty Ltd, all of which supplement the terms and conditions of your employment agreement. The Company reserves the right to amend, supplement or otherwise modify Company Policy from time to time as it considers appropriate to meet its business needs.

This manual is the property of Skinner Engineering Pty Ltd and all the information contained within the manual is confidential and considered proprietary information of the company.

CHAPTER TWO – CONDUCT

1.CONFIDENTIAL INFORMATION

You must not during your employment (otherwise than in the proper performance of your duties) or afterwards use, disclose or communicate to any person, and you should use your best endeavours to prevent the use, publication or disclosure, of any secret or confidential material or information relating to the business of the Company or any Group Company. This will include, without limitation, information concerning corporate and marketing strategy, business development, business methods, plans, policies, research results, financial reports, software technology, data base systems, current or planned transactions, hardware research and development, software development, manufacturing arrangements, names of clients, suppliers, employees and terms of business or employment whether such information is documented or stored electronically or by any other medium and whether or not the Company or any Group Company owes a duty of confidentiality to any third party with respect to such information. This clause will not cover or prevent you using or disclosing information if ordered to do so by a court of law or otherwise required by law or if authorised by the Company or if such information has become public knowledge other than through unauthorised disclosure.

You must not at any time during your employment make any copy, abstract, summary or précis of the whole or any part of any document or file contained on any medium belonging to the Company or the Group except insofar as is necessary for the proper performance of your duties in which case the copy, abstract, summary or précis shall belong to the applicable Group Company.

At any time upon demand by the Company and/or upon the termination of your employment (howsoever arising) you will deliver up to the Company all original and copy records, papers, computer programmes, materials and other property belonging to it or the applicable Group Company and which are in your possession or under your control and no copies thereof shall be retained by you or by anyone else on your behalf. If requested to do so by the Company, you will send to the Company a signed statement confirming that you have complied with this clause.

3.CONFLICTS OF INTEREST

You must inform the Company if you are or intend to be engaged under another employment agreement or contract for services.

You must not engage in any activity, which would or may conflict with the duties and obligations of your position.

4.INTELLECTUAL PROPERTY

Intellectual property rights for methodologies, systems, designs, or any other product, or service that you may develop in the course of your employment with the Company, remain the property of the Company. Fees, royalties and any other remuneration arising from such matters also belong to the Company.

CHAPTER THREE – EMPLOYMENT CONDITIONS

1.  PAYMENT OF SALARY

Your salary will accrue on a daily basis and be payable on the pay day referred to in your employment letter/stated in local applicable regulations.

The Company is entitled to deduct amounts of money from your salary (or other payments or holiday pay) any recorded debt owed to the Company.

The Company shall determine in its discretion your entitlement to any bonus, in the absence of any other separate agreement. No bonus will be payable if you are no longer employed by the Company prior to the payment date of the bonus, or if you breach, or the Company reasonably believes (and has notified you in writing of its belief) that you have committed a serious or material breach of your obligations under the Employment Agreement.

Bonus includes performance related remuneration payments based on team or individual performance indicators or criteria.

2.  USE OF SKINNER SYSTEMS AND EQUIPMENT WORKPLACE RESPONSIBILITIES

a.    Principle

SKINNER provides access to our systems and equipment so you can do your job and to make your job easier. SKINNER considers investment in technology as being integral to improving our current processes and service to our customers.

SKINNER allows limited personal use of our technology but not where this offends people or is otherwise against the interests of SKINNER or its customers.

No-go zone

·    Illegal activities

·    Destructive activities (eg distribution of computer viruses)

·    Creating, accessing, transmitting, storing or retaining:

-     Offensive, including pornographic or racist, material

-     Material that could offend (or sexually harass) if observed by others

-     Defamatory material (to persons or business)

-     Material that disparages any of our people

·    Intercepting someone else’s email

·    Accessing confidential information without authorisation

·    Accessing the mail account of another user to send or receive email

·    Conducting outside business, fundraising or charitable activity not sponsored by SKINNER

·    Promoting political or religious beliefs

·    Gambling

·    Chain letters

·    Junk mail

·    Harassment or bullying

·    Discrimination on a prohibited basis

·    Transmitting copyright or patented information without permission

This is not a complete list. The ‘no-go zone’ includes any use that is inconsistent with the interests of SKINNER or our customers.

c.        Monitoring

The email, internet and phone systems are the property of SKINNER. SKINNER may retrieve and review email messages created, sent received or stored on the system and records of internet. This is necessary in order for SKINNER to monitor compliance with this policy and maintain security of its systems. The information may be accessed by investigators/management and relied on in disciplinary or legal proceedings.

d.        User Logons & Passwords

Logons and Passwords are issued to you, to allow access to the systems and equipment you need to do your job. You  are responsible for any activity, transaction etc conducted under your logon. Your password is confidential to you and should not be released to any other person.

e.        Changing System settings

SKINNER systems are configured to minimise potential threats – for example, anti-virus software is installed to protect against viruses. You must not change, remove or circumvent – or attempt to change, remove or circumvent – any such system setting without authorisation from management.

f.         Breach of the Policy

Misuse of our systems and equipment can have major consequences for SKINNER, our customers and individual users. Therefore, any breach of this policy will be treated very seriously. Disciplinary action will be taken for breach of the policy.

3. DRESS COSE

Dress code for staff members is smart casual, in keeping with the general industry standard.

4. BENEFITS

As per letter of employment

CHAPTER FOUR – RECRUITMENT AND SELECTION

1.RECRUITMENT AND SELECTION

a.Introduction

This policy is designed to ensure that all vacancies are filled with the best qualified candidates based on their knowledge, skills and abilities and are selected through fair, equitable and professional procedures.

b.Policy

All recruitment decisions should be based on the principle of merit. Skinner Engineering affirms its commitment to policies of recruitment and selection which ensure equal opportunities for all staff. Refer to section of Equal Employment Opportunities.

When a job vacancy occurs, or new position is going to be created, Managers should give consideration to whether:

·The role could be improved in any way, or made more attractive to staff

·A new staff member is actually necessary i.e. the tasks may be able to be re-distributed to other staff; or the role may be able to be done on a part time, or job share basis.

c.Recruitment Steps

Once it is ascertained that the position should be filled the following steps need to be undertaken:

1.Complete a position description for the role

2.Ensure all the appropriate approvals have been obtained. The process is as follows:

·All requirements must be completed by department manager and approved by the General Manager

·For managerial position, this form is to be sent to Johan Holdings Bhd for approval. No recruitment activity is to commence until this approval has been given. At the conclusion of the recruitment process, should an offer be made that is outside the salary range indicated, further approval should be obtained.

Consider

3.Establish what the key competencies are for the role. The process should identify the knowledge, skills and personal characteristics that are needed to carry out the tasks and responsibilities of the job effectively.

4.From the pool of applicants, select those who best fit the competencies identified from the CV. Consider previous experience, qualifications, training etc. It is important that attention is also paid to:

·Unexplained gaps in employment

·Presentation of the CV i.e. is it tidy? Are there spelling and grammatical errors?

·Length of time in positions

·Reasons for leaving (if given)

5.Develop a short-list of candidates and reply to all applicants acknowledging receipt of their CV. This must be done promptly. If an application was sent via email, acknowledgement of the application can also be made via email.

6.Develop interview questions based on the competencies you have identified.

7.When conducting interviews ensure that the candidate completes an employment application form at the commencement of the interview. Check that referees have been included and that the application form has been signed.

8.Interview the candidates. Interviews must always be conducted in a professional and appropriate manner. Refer Section on Interviewing.

9.After the interview, document your perceptions of the candidate’s suitability for the role. Selection must be based on the best person for the job. All else being equal preference should be given to internal candidates.

10.Reference check the preferred candidate. Ensure that at least two verbal reference checks have been completed. These should be conducted with someone that the candidate worked for i.e a manager/supervisor.

11.Once the offer has been made, an employment agreement has to be prepared and signed by the General Manager. A copy of the employment agreement should be retained in the Administration Office.

12.A signed employment agreement must be received by the successful candidate prior to, or on their start date.

13.All employment information will be forwarded to Payroll.

2.INTERVIEWS

a.Introduction

The purpose of an interview is to assess the competence, personality, manner and suitability of a job applicant. It is also an excellent public relations opportunity. For the applicant, it is an opportunity to obtain a clearer picture of the job role, work requirements and workplace.

Although most employers prefer the interview as a selection method, research shows that it is one of the least reliable indicators of effectiveness on the job performance. For this reason, it is important that the reliability and validity of the interview is maximised by:

·Conducting structured interviews which are standardised for all applicants

·Asking behavioural questions

b.Interview Bias

Interviewers should be aware of their own personal bias, attitudes and prejudices which may unfairly disadvantage, or influence them in favour of, or against a particular candidate. Research has shown that interviewers form biases about applicants early in the interview (within the first four minutes) and are influenced more by personal than job relevant information. They are also more influenced by negative, rather than positive information. Other bias that may negatively impact upon the reliability and validity of and interview include:

·Stereotyping – making a generalised judgement about a person on the basis of their age, race, sex etc.

·Halo effect – the tendency to allow one’s overall impression of a person to generalise across other characteristics in a positive, negative or neutral way

·Interviewers view applicants similar to themselves more favourably than others

·When candidates have identical qualifications, females are generally rated lower

·Attractive candidates are rated higher than others regardless of gender

·Disabled, or older candidates are rated lower than other applicants

·The more the interviewer talks, the more favourably the applicant is rated

·Contrast Effects – Interviewer’s ratings are influenced by those given to immediately preceding applicants

·There are significant cultural differences in the interpretation of non-verbal behaviour by both applicants and interviewers.

c. Interview Opening    

During the opening of an interview formal introductions are made, the applicant is encouraged to relax, rapport is developed and the selection process is explained

d.Body of the Interview

The role, responsibilities and reporting relationship(s) should be outlined in addition to employment conditions, benefits and training opportunities. The interviewer should appear friendly, informative and demonstrate active listening techniques.

e.Interview techniques

Silence and pauses can indicate that the listener wishes the applicant to continue, or elaborate. Similarly open (how, when, where, what etc) and closed questions (requiring a ‘yes’, or ‘no’ answer) may be used to obtain more specific information, or speed up an interview.

f.Questioning

In general, questioning should start out simple and become increasingly complex. Jargon and company specific terms should be avoided.

Wherever possible questions should be behavioural in nature. For example; ‘In your current role, tell me about a time when…’,

It is illegal to ask a candidate a question that could be interpreted as indicating an intention to discriminate on any of the prohibited grounds listed in the Law. If you have concerns with respect to a particular issue, you are able to ask the candidate whether they are aware of anything that would prevent them from being able to efficiently carry out the duties required.

g.Closing the Interview

To close the interview, the applicant should be asked if they have any further questions and then be advised of the next stage in the selection process.

Ask whether the applicant is still interested in the role.

Ask what period of notice is required for their current role.

Close the interview in a friendly decisive manner and accompany the applicant to the door.

h.After the Interview

As soon as possible, a summary of the information obtained from the interview should be written. The following points could be used as a framework.

Does the applicant have the minimum skills, qualifications, experience to perform the role effectively?

Does their personality fit the requirement of the role, will they get on with other team members?

Are they best applicant for the role?

Are they likely to survive/stay for long in the organisation?

3.REFERENCE AND BACKGROUND CHECKING

a.Introduction

The purpose of background checking is to obtain in confidence factual information about a candidate’s work history, character, quality of work, reliability and sustainability for the position.     

The intention is to identify recurring patterns or past accomplishment, failure, personality difficulties and confirm qualification details. It is more important to obtain employment rather than personal information. In general, written references have low predictive validity. For this reason, written references should be confined to factual checks of biographical information.

b.Reference requirements

A minimum of two referees must be contacted directly where possible and asked to provide references. Each reference must be recorded in writing.

c.Phone checking

Background checking done during a phone interview is convenient and the most likely method to obtain honest responses from referees. As in a job interview, the interviewer should present relevant job information to the referees and seek their opinion of the candidate’s ability to perform their job. The interviewer must practise active listening techniques and use open and closed questions to their full advantage.

1.It is important to establish that the referee is competent to evaluate the candidate’s performance in a work context. Ideally they would have been the candidate’s manager/supervisor. A work colleague is not suitable.

The referee must:

·Be familiar with the candidate and their job

·Be willing to be open and candid

·Have regularly observed the candidates behaviour at work

·Verify dates of the candidate’s employment, reasons for leaving, position(s) held, salary level etc.

·Be asked to provide information about work attendance, personal style, reliability, honesty, potential strong/weak points, relationships with peers, superiors and subordinates, quality and quantity of work, the work environment, organisation, goals of the candidate’s role and their ability to handle stress and work under pressure.

·Be asked whether they would re-employ the person and the reason(s) for this.

4.SECONDARY EMPLOYMENT

An employee contemplating additional employment outside of the organisation will be required to inform their manager to determine whether a conflict of interest exists. As a result:

1.The Company may request further information regarding the employee’s secondary employment activities where there is evidence that a conflict may exist with the employee’s obligations to Skinner Engineering Pty Ltd.

2.The Company will determine whether a conflict exists and if so, how this will affect the individual’s employment with the Company.

3.Employees should be mindful of the possible adverse affects outside employment may have on their energy and job performance. Where an outside position impacts on an employee’s primary position in this way, a review of the situation will be conducted.

4.If an employee knowingly fails to notify the Company of secondary employment activities which puts them in competition with the Company, or benefits others in competition with the Company, or adversely prejudices an employee’s ability to carry out their responsibilities in the best interests of the Company, they could be subject to instant dismissal.

5.EQUAL EMPLOYMENT OPPORTUNITIES

Skinner Engineering affirms its commitment to policies of recruitment, conditions of employment, training and promotion which ensure equal opportunities for all staff regardless of their;

·Gender (including pregnancy and childbirth)

·Age

·Sexual orientation

·Disability (past, present or future physical or mental disability which does not impact upon the person’s ability to perform the role)

·Colour, race, ethnic or national origin

·Marital, employment, or family status

·Religious/ethical belief or political opinion

6.DISCRIMINATION

Unlawful discrimination of any staff member or customer is a serious offence, and is regarded by Skinner Engineering unacceptable. Discriminatory behaviour can take the form of spoken or written language. Visual material or physical behaviour which a person finds hurtful or offensive, regardless of whether they communicate this to the offending party, or whether it occurs at work. Discriminating against or harassing staff or customers is illegal, and unacceptable within Skinner Engineering.

Behaviour of this nature will not be tolerated or condoned. Instances of such conduct, where validated may result in appropriate disciplinary action.

7.SEXUAL HARASSMENT

Because of its distinct nature, sexual harassment deserves special mention.

Sexual harassment can affect both males and females. Sexual harassment is any behaviour of a sexual nature that is unwelcome or offensive. Behaviour which constitutes sexual harassment can vary from the extreme case where rape or indecent assault occurs through to sexual jibes and innuendo. Examples of sexual harassment include:

·Being subjected to indecent sexual language in work conversations, or the display of material at work, that you find offensive.

·Receiving unwanted sexual comments about your personal appearance, or someone probing unnecessarily into your personal life.

·Someone making physical contact with you (e.g. hugging, pinching, brushing up against, touching) which you don’t invite or like, and find offensive

·Being repeatedly asked out by a particular person when you continually refuse and the attention is persistent and unwelcome.

a.What to do

If you have any concerns about behaviour you consider to be discriminatory or sexually offensive you should raise the matter with the management.

Management are responsible for providing appropriate advice and support to staff who make a complaint. Management are also responsible for thoroughly investigating the issue and taking all practicable steps to prevent a repetition of the inappropriate behaviour. You can be assured that complaints will be dealt with quickly, confidentially and sensitively, and that you will not be disadvantaged by raising your concerns.

CHAPTER FIVE – HEALTH AND SAFETY

1.As per the OH&S Policy Manual and Procedures issued separately.

2.NO SMOKING POLICY

The Company operates a no smoking policy in that smoking will not be permitted in the office areas.

CHAPTER SIX – LEAVE

1.INTRODUCTION

The following sections are covered in the Metal, Engineering and Associated Industrial Award 1998 and Skinner Engineering Pty Ltd Collective Bargaining Agreements (EBA).

If your employment agreement outlines terms and conditions that are more favourable than those outlined in the manual, the terms of the employment agreement will govern.

2.ANNUAL LEAVE: 20 days per year plus leave loading (currently 17.5%)

3.STATUTORY HOLDAYS: Public Holidays as gazzeted by the Government, currently 10 days per year.

4.SICK LEAVE: 10 days per year cumulative.

5.BEREAVEMENT LEAVE: 2 days per year for immediate family.

6.UNPAID PARENTAL LEAVE: Can be upto 12 months.

7.FAMILY LEAVE: 5 days can be taken from Sick Leave credits per year.

8.PAID PARENTAL AND ADOPTION LEAVE: 4weeks at Rate of Pay.

9.LONG SERVICE LEAVE: Entitled to 13 weeks after 15 years. However can be taken pro-rata after seven years with Company consent. Termination after seven years entitled to pro-rata payment. Entitled to be able to take LSL after 10 years.

10.LEAVE WITHOUT PAY. At the discretion of the Company.

CHAPTER SEVEN – TERMINATION OF EMPLOYMENT – LEAVING THE COMPANY

1.NOTICE

(a)For any serious misconduct or serious breach of its terms, your employment may be terminated without notice by the Company.

(b)Alternatively, the Company may terminate your employment by giving of four weeks’ notice in writing, or payment in lieu of notice, for misconduct or breach of this Agreement or failure to satisfactorily perform the duties and responsibilities under this Agreement.

(c)You may terminate your employment by giving 4 weeks’ notice in writing. The Company may elect to pay you salary in lieu of notice for any part of that notice period.

(d)If you fail to give 4 weeks’ notice of the termination of this Agreement, the Company may:

(d.1)elect to pay salary in lieu of notice for any part of such notice period as given and deduct from any salary or other payments due a sum equal to the salary for the period of the shortfall in notice; or

(d.2)require the Staff Member to take paid leave for some or all of the period of 4 weeks from the date on which the Staff Member gives notice of termination.

(d.3)exemption from above can be made at the discretion of the General Manager.

(e)On termination or at any other time at the request of the Company, you shall return to the Company all its property, including but not restricted to Confidential Information.

2.SKINNER ENGINEERING HOUSE RULES

a.Serious misconduct

Unless there are exceptional extenuating circumstances, the following actions shall constitute grounds for summary dismissal. Summary dismissal is without notice and salary is paid to date of dismissal only.

1.gross insubordination or wilful disobedience in carrying out lawful requests of a supervisor;

2.removing equipment or articles from the Company’s premises without authorisation;

3.being in possession of another staff member’s personal property without that staff member’s permission;

4.using Company equipment or services without proper authorisation;

5.wilful damage to Company property;

6.assaulting any person (customer, member of the public or staff) during working hours;

7.irresponsible use of the fire protection or safety equipment installed on the premises

8.supplying or using drugs on the Company’s premises. (Exceptions are those drugs prescribed by a registered medical practitioner or non-prescribed items purchased from a chemist provided they are used as prescribed or directed)

9.(blank)

10.reporting for work in such a condition of intoxication, through either alcohol or drugs, that the Staff Member is unable to perform his/her duties properly and safely. At the time of the first offence the Staff member reporting in such a condition will be sent home. A second occurrence will constitute grounds for instant dismissal;

11.consuming intoxicating liquor on the premises during working hours without executive consent;

12.acts Inside or outside the Company of fraud, misappropriation or any form of theft;

13.breach of the Company’s Confidentiality Declaration/Undertaking;

14.abandonment of employment. The Staff Member is deemed to have abandoned his/her employment if absent three or more consecutive working days without approval of the Company;

15.intimidation or persistent harassment of any staff member;

16.neglect of duty;

17.wilful falsification of Company records, including attendance records;

18.breach of Data Security, including:

(i)accessing or facilitating the access to the Company’s computer systems without proper authority;

(ii)using the Company’s computer systems for other than Company related business;

(iii)using any password otherwise than in the performance of the Staff Member’s job function;

(iv)disclosure of the Staff Member’s password to another person

19.Material or essential misrepresentation or non-disclosure of information to obtain any benefit of employment, or to obtain any of the Company’s services for the Staff Member or any other person

20.sexual or racial harassment;

21.Discrimination against staff or customers

22.any conduct which is incompatible with the Staff Member’s employment relationship with the Company.

3.DISMISSAL BY NOTICE

In appropriate circumstances, where the nature of the behavior is considered by the Company to be sufficiently serious, the Company reserves the right to dismiss by notice after implementing the disciplinary procedure.

Examples of conduct that may give concern are:

·Standards of work performance;

·Discipline

·Observance of rules

·Work attendance; or

·Conduct.

This may include:

1.Not meeting the required work performance standards.

2.Using abusive language which may cause offensive to another person, while at the Company’s place of work.

3.Reporting to work in such a condition that duties are unable to be performed properly.

4.Failing to be at the assigned place of work during working hours, without the permission of management, other than for lunch.

5.Misusing equipment or defacing company property.

6.Failing to report any accident or any misuse of fire protection equipment.

7.Posting offensive notices on notice boards or elsewhere in the Company’s place of work.

8.Irresponsible behaviour or any other conduct which would be likely to damage the name and/or reputation of the Company.

Should any of the above occur the disciplinary procedure that will be followed is:

·First Offence: Verbal Warning

·Second Offence: Written Warning

·Third Offence: Termination of Employment

In appropriate circumstances, where the nature of the offence is considered by the Company to be sufficiently serious, SKINNER can go directly to the second or third stage of the procedure.

All warnings will be recorded in writing. Repetition of the offence may result in dismissal.

Any disciplinary action undertaken by the Company will be carried out in a procedurally fair manner.

4.ILL HEALTH

(a)If you suffer with an extended period of sickness or illness or any physical incapacity or mental disability which in the opinion of the Company impacts on your ability to perform the duties of your position to a satisfactory level, then the Company may request you undergo an independent medical assessment by a medical practitioner.

(b)If requested, you will authorise the nominated medical practitioner to release any reports to the Company to assist in its assessment of your situation.

(c)The Company acknowledges that you have the right to refuse to undergo a medical assessment. Such a refusal means that the Company will have to assess the situation based on the knowledge that it has at that point in time.

5.PERSONAL GRIEVANCES

If the problem is a personal grievance, then the Employee must raise it within three days of when the facts that give rise to the grievance occur or come to their attention. A personal grievance can only be raised outside this time frame with the agreement of the Employer or in exceptional circumstances.

6.RETIREMENT AGE

There is no mandatory retirement age, even though the nominal retirement age is 65 years.

CHAPTER EIGHT – TERMINATION OF EMPLOYMENT - REDUNDANCY

1.REDUNDANCY

Casual or temporary staff and those engaged for a fixed term of employment shall not be deemed to be redundant at the scheduled completion of that period of employment.

2.VOLUNTARY REDUNDANCY

a.In situations where, as a result of restructuring by the Company or the Group, there is a reduction in the required number of the same positions, the Company may seek from staff an expression of interest in voluntary Redundancy. This must be forwarded in confidence direct to the designated manager.

b.No pressure shall be placed on the Staff Member to respond.

3.REDEPLOYMENT

Before the Staff Member is made redundant the Company undertakes to examine all alternative job options and make every reasonable endeavor to identify other job opportunities. Any such job offer shall be in writing and shall include information on the location, salary and principal duties of the job.

If the Staff Member receives an offer of redeployment, which requires a change of residence, the Staff Member shall be given fourteen days to decide upon the offer. If the Staff Member receives an offer of redeployment which does not require a change of residence, the Staff Member shall be given seven days to decide upon the offer.

If the Staff Member declines an offer of a Directly Comparable Position within the city of his residence, the Staff Member may be made redundant but will not be entitled to any of the provisions of this clause.

The Group may offer the Staff Member the option of continued employment in a non-comparable position, provided that the Staff Member shall be entitled to decline that offer without forfeiting his or her entitlement to the Redundancy compensation provisions of this clause.

If the Staff Member accepts a job option within the Group which requires a change of residence, the Staff Member will be entitled to the same provisions and benefits as a staff member who is transferred at the Group’s request.

A staff member shall be entitled to decline any offer of redeployment which requires a change of residence, without forfeiting his or her entitlement to the Redundancy Compensation provision of this clause.

4.NOTICE

a.If the Staff Member’s position becomes superfluous to the needs of the Company, the Staff Member will receive a minimum of four weeks written notice of termination of his/her employment, or payment in lieu of notice.

b.If the Staff Member is offered a job option under Redeployment, the period of notice beings on the date the job option is offered in writing.

c.Any payment of Redundancy compensation is contingent on the Staff Member remaining at work and performing his/her assigned duties until the expiry of notice.

d.If the staff member receives notice of Redundancy and finds an alternative position during the period of notice, the Staff Member may, with the consent of the Company, which shall not unreasonably withhold such consent, terminate his/her employment and still receive Redundancy compensation. The unworked portion of notice will not be paid.

5.REDUNDANCY COMPENSATION

If the Staff Member is made redundant the following payments will apply:

a.Four weeks salary for the first year of continuous service. This will be pro rated entitlement for less than one years service;

b.Plus four weeks salary for each of the second to fifteenth consecutive years of continuous service;

c.Plus three weeks salary for each of the sixteenth to twentieth consecutive years of continuous service

d.Plus two weeks salary for each subsequent consecutive year of continuous service up to a maximum of twenty five years including the first; and

e.A pro rated payment for each completed month of service in the final part year of service

6.UNUSED LEAVE

Payment will be made for any outstanding Annual and Long Service Leave entitlement.

9.LEAVE WITHOUT PAY

a.If the Staff Member is on parental leave, or any other leave of absence, has previously been advised by the Company that a position will be held open, and advises the Company that he/she wishes to return to work at the conclusion of that leave, and the Company subsequently advises the Staff Member that a position will not be available for them due to Redundancy, then the above Redundancy and redeployment arrangements will apply.

b.The date of Redundancy will be the date the Staff Member started the period of leave without pay. The period of leave up to the date of receipt of notice of Redundancy shall count towards total service for the purpose of calculating Redundancy compensation.

10. TECHNICAL REDUNDANCY

Notwithstanding the above, where the Staff Member’s employment is terminated because the Staff Member’s position is surplus to the Company’s needs by reason only of the sale, transfer or the amalgamation of the whole or part of the Company’s business, the Staff Member will not be entitled to either notice of termination or any Redundancy compensation where the person or entity acquiring the business (or the part of the business) being sold or transferred or the amalgamation entity offers the Staff Member a position which is directly comparable to the Staff Member’s position with the Group, or another position which the Staff Member is willing to accept, on terms and conditions which are in their overall effect not less favourable than the terms and conditions of this Agreement and agrees to recognize the Staff Member’s service with the Company as if it were continuous service with the person or entity.

CHAPTER TEN – TRAVEL AND ENTERTAINMENT

1.    INTRODUCTION

This Travel and Entertainment Policy has been formulated to help you understand our policies and procedures for travel and entertainment. Read this policy carefully; it will help you understand your obligations in regard to travel and entertainment and, more importantly, help you to keep our company’s operating costs to a minimum. As our policies change or are updated, you will be provided with supplements or a new document.

2.GENERAL POLICY

·Exercise the same care as you would when incurring personal expenses.

·Conduct business at minimum cost for achieving success.

·Obtain a receipt for all out of pocket expenses.

3.AIR TRAVEL

·Any travel must be authorized by your manager prior to booking air tickets.

·Al travel bookings including hotel rooms and car hire are to be made via the company.

·Book flights as far in advance as possible to take advantage of advance purchase discounted fares.

·When itinerary changes are necessary enroute organise the change through the nearest facility having the required travel services. Unused airline tickets should be returned to company travel manager to process the refund.

·All staff must fly Economy Class.

4.CAR RENTAL

·Before renting a car, you must obtain authorization from your manager.

·All car rental requirements will be handled by the company.

·Always take up all types of Insurance offered when completing the rental contract.

·The least expensive vehicle will be provided which is suitable for the business you are undertaking.

·For short distances/travel requirements in a city, taxis may be the more efficient method of travel.

·If you are involved in an accident in a rental car report the accident immediately to office manager or your manager and record details of the accident.

5.ACCOMODATION

·All hotel room bookings are to be made via the company.

·When guaranteed reservations have been made and a change in itinerary means that the reservation is no longer needed, please inform the company – as soon as possible, to avoid incurring charges.

·Every care should be used when using other services within hotels i.e. telephones, mini bars, offices services. It should be understood that these services have high premiums added and generally should not be used. Mobile phones should be used for all calls

·Reasonable expenses for laundry, dry cleaning etc will be reimbursed

·Always obtain itemized hotel receipts for all charges during your stay

6.BUSINESS MEALS AND ENTERTAINMENT

·Business meals must be conducted at minimal expense

·An Employee, whilst travelling away from home, may spend up to $30 per evening meal, $15 lunch and breakfast $20.

·When entertaining a client, you must document the place, person(s) present and the business purpose. This information, along with the total cost, will be required to complete your Expense Statement later on.

CHAPTER TWELVE – PERFORMANCE APPRAISAL

Promotions Policy

a.The company’s policy has been to promote existing suitable employees, as far as possible, from lower grades to higher grades including Executive positions as and when vacancies are available.

b.When there is a vacancy, the company shall advertise the vacancy internally on staff notice boards, details of the vacancies to be made known to serving employees and the company will consider applications accordingly.

c.Should attempts to promote any of the existing staff fall, the company can look externally for new recruits for the vacancies.

Performance Appraisal

a.All employees will have their performance reviewed by their immediate supervisor and by the next senior manager once a year. The Performance Appraisal form will be the record of this appraisal

b.Each employee who is appraised will have an Appraisal Interview with his or her immediate supervisor. This interview will be based on points made in the Appraisal Form. An employee is entitled to see the form at the interview.

c.After this interview the completed form should be sent to the Administration Office for filing in the Personal File records.

CHAPTER THIRTEEN – TRAINING

a.The main purposes of training are:

·to enable employees to improve their performance in their present job.

·to provide for the company’s needs for succession and growth by identifying and developing all those with potential for advancement.

·to ensure that every staff who moves to a new job is fitted with the necessary skills and knowledge to do the job well.

·to ensure that new employees learn their jobs quickly and thoroughly.

·to foster in employees an interest in their jobs and the recognition that the company regards them as important.

Evaluation of Training Granted To Staff

a.Feedback is important to determine whether adequate training is granted to staff,

b.No company can afford to carry out “training” for training’s sake. The benefits of training in terms of improved individual and operational performance have to be realized.

c.Training records should be kept in the Administration Office for staff members.

The training evaluation forms to be filled in personal file of staff.           

Kinds of employment entitlements

(1)     This section defines the various kinds of employment entitlements of a person whose employment by an employer has ended, by reference to the person's entitlements under the governing instrument for the employment.