Monthly Archives: August 2017

New Punishment stipulated to Employ Foreign Workers

On 1 June 2013 the Migration Amendment (Reform of Employer Sanctions) Act 2013 and the Migration Amendment Regulation 2013 (No. 3) came into effect.

The Act introduces new civil penalties for Australian employers that employ workers from overseas who are not allowed to work, or employ overseas workers in breach of work-related visa conditions.

Under the new laws, employers are liable even if they do not know that a worker is not allowed to work or has work-related visa conditions.

Employers may also be liable even if the illegal worker was referred to them by an employment agency.

Executive officers of companies (directors, secretaries, CEOs and CFOs) may also be liable if they do not take all reasonable steps to prevent the company from employing illegal workers.

However, if employers can prove that they took “reasonable steps at reasonable times” to verify that their workers are allowed to work in Australia without breaching their visa conditions, they will not be liable.

Employing non-Australian workers – the basics

Australian citizens and New Zealand citizens who live in Australia are allowed to work in Australia.

People from other countries need to hold a visa to legally enter or remain in Australia.

Some visas do not allow the visa holder to work at all. Other visas have work-related conditions that restrict the type or amount of work the visa holder can do.

Offences

It is illegal to allow a non-citizen who does not hold a visa to work.

It is illegal to allow a non-citizen who holds a visa to work in breach of a work-related condition of their visa.

It is illegal to refer a non-citizen for work if they do not hold a visa or if it breaches a work-related condition of their visa.

Employers who are visa sponsors have additional obligations that are not dealt with in this article. It is an offence to breach those sponsorship obligations.

Penalties and fines for employers

The new civil penalties for employers range from $1,530 for individuals and $7,650 for companies for a first infringement notice to a maximum civil penalty of $15,300 for individuals and $76,500 for companies.

There are also criminal penalties including imprisonment and substantial fines for employers who knew, or were reckless as to whether the worker was not allowed to work or had work restrictions.

Required checks

The new laws require Australian employers to take “reasonable steps at reasonable times” to verify that their workers are allowed to work in Australia without breaching their visa conditions.

Australian citizens, permanent residents or New Zealand citizens

Before employing workers who claim to be Australian citizens, Australian permanent residents or New Zealand citizens, employers should inspect official documents that verify the worker’s citizenship status.

Workers from overseas

Before employing overseas workers, employers should check their visa details AND work-related visa conditions on the Department of Immigration and Citizenship’s Visa Entitlement and Verification Online (VEVO) computer system.

Temporary visas – employers should note the visa expiry date of workers who hold temporary visas and check VEVO again immediately after that date to ensure the workers have been granted a new visa and check for any work-related visa conditions.

Bridging visas are short-term visas with no fixed expiry date usually granted while the visa holder awaits the outcome of a visa application. Employers should check VEVO regularly to ensure that workers who hold bridging visas continue to hold a visa and check for any work-related visa conditions.

Workers referred by contractors or labour hire companies

On 1 June 2013 the Migration Amendment (Reform of Employer Sanctions) Act 2013 and the Migration Amendment Regulation 2013 (No. 3) came into effect.

The Act introduces new civil penalties for Australian employers that employ
workers from overseas who are not allowed to work, or employ overseas workers in breach of work-related visa conditions.

Before employing workers referred by a third party, employers should get written verification that they are allowed to work in Australia and whether they have any work-related visa conditions.

Recordkeeping

The onus is on employers to prove that they took reasonable steps to verify that their workers are allowed to work in Australia without breaching their visa conditions.

It is therefore vital that employers keep records of all checks that they do including the dates they do them and to keep copies of any related documents such as passports that they inspect.

Duties of executive officers

Executive officers of companies should take all reasonable steps to ensure the company complies with all laws relating to employing non-Australian workers.

All of the company’s employees, agents and contractors who are from overseas or who are involved in hiring, rostering or supervising employees from overseas should be given any necessary training to ensure that the company does not employ overseas workers in breach of work-related visa conditions.

5 Work Program Models to Consider

Small employers need worksite wellness programs too. As a small employer, you care about and want healthy employees don’t you?

Wellness programs have traditionally been the province of the large employer, basically leaving the smaller employer out of today’s explosion in employee health management.

This is unfortunate as the small employer needs wellness programming just as much as the large employer. Small employers make up the majority of US employers and employ a large percentage of today’s workforce. I am defining small employer as being an employer with less than 100 employees.

Traditionally within worksite wellness, each employer creates, for the most part, their own internal, stand-alone program utilizing internal employer based resources, or the resources provided by a contracted vendor, such as the health insurance company or a wellness program vendor. This independent, self-sufficient model is not, in my opinion, either viable nor the best strategy for the small employer to employ.

There is certainly no reason why a small employer cannot, on their own, create their own internal, stand-alone program utilizing internal employer based resources, or the resources provided by a contracted vendor, such as the health insurance company or wellness program vendor.

Another strategy a smaller employer might be to still go it alone by putting together programming based on free or low-cost Internet-based interventions. This strategy, while maybe being a low-cost strategy in terms of dollars actually spent, is a high cost strategy in terms of the time and energy required to put all the various interventions together into a cogent implementation plan and then executing the plan. The smaller employer would probably find this time and energy to be better used though elsewhere in the business.

Five alternative worksite wellness program models a small employer might utilize involve cooperation, collaboration, anchor model, cluster program model and an employer – community partnership model.

Cooperative Model

In the cooperative model, small employers would band together to deliver a wellness program to their collective employees through some type of cooperative agreement. Each employer makes a contribution in the cooperative model, with the nature and size of the contribution potentially varying with each employer. While potentially better than going it alone, the cooperative model presents challenges such as:

• The collective contributions may still fall short of what is needed for the cooperative to institute a successful program on its own

• A cooperative approach would not address any unique needs an individual employer may have based on the uniqueness of their workforce or work environments

• An employer would not necessarily bring its strengths to the cooperative process. What is lost when an individual employer’s strengths are not utilized in the process?

Collaborative Model

In the collaborative model, small employers also band together to deliver a wellness program to their collective employees through some type of collaborative agreement. Through a collaborative arrangement, each employer contributes their strengths to the process. While potentially better than going it alone and a cooperative agreement, the collaborative model also presents such challenges as:

• The collective contributions may still fall short of what is needed for the collaborative members to institute a successful program on their own

• A collaborative approach would also not address any unique needs an individual employer may have

Anchor Model

The anchor model is based on the anchor store concept found in shopping malls. In this model, a larger employer serves as the anchor for a wellness program that includes both the anchor company and the anchor employer’s nearby smaller employers. I see this model as being best suited for a shopping center, or an industrial or commercial park.

Cluster Model

The cluster model could involve either a cooperative or collaborative arrangement between neighboring businesses. I see this model as being best suited for a main street or designated section of a downtown.

Employer – Community Partnership Model

I believe this is a much better model for the small employer to undertake. In this model, the level of employer linkage to community based resources and programs decreases as the employer grows in employee size.

If you are a small employer, which worksite wellness program model appeals best to you?

Getting Started

Worksite wellness programs can benefit the small employer, just as much, if not more than the large employer. I invite you to let me help you create your effective, successful and sustainable wellness program. I specialize in mentoring worksite wellness program coordinators and creating Done With You worksite wellness and well-being programs.

What is Cooperation and How Does it Benefit Your Business?

Employers encounter a wide range of business jargon and terms throughout their day. Some are less common than the next. “Co-employment” is one such term. What exactly is co-employment, and how can it benefit your business?

The term co-employment loosely refers to any relationship in which an employee is employed by more than one employer. While this may sound strange or uncommon, it in fact happens more than one might expect. This relationship typically falls into one of three categories:

  1. Joint-Employer
  2. Employer-of-Record
  3. Professional Employer Outsourcing (or Organization)

1) Joint-Employer

When an employee works for two employers simultaneously, and in the best of interest of both employers, these businesses are known as joint-employers.

An example of this type of relationship made the news recently when a manager for two small regional airlines sued one of his employers for FMLA violations. This employer only had 30 employees and therefor fell below the minimum FMLA threshold of 50 employees. The employer denied the claim on these grounds. However, the litigant simultaneously worked for another airline, which employed over 300 employees – well over the FMLA limit. The courts determined that the employee was co-employed equally by both businesses – both logos appeared on his business card, he represented both companies in negotiations, and his name appeared on both business directories. The court found the employee’s FMLA rights were indeed violated as the co-employer relationship between the businesses pushed their total over the 50 employee limit.

This type of relationship may in fact pose more of a risk to one employer or the other, as their combined employee size may expose them certain employment regulations that only apply to higher employee thresholds. Employers who co-employ workers should weigh the benefits of this type of relationship against some of the increased risks they may face.

2) Employer-of-Record

Another co-employment relationship can found with temporary staffing or contingent workforce relationships. This is also known as Employer-of-Record (EOR).

In these relationships, the staffing or contingent workforce firm acts as the EOR which legally employs their clients’ temporary or contingent workforce. The EOR hires and provides temporary staff to their clients, usually for short-term projects or seasonal work. In so doing, the EOR assumes all the core employment responsibilities typically shouldered by the business. This includes administering much of the IRS and HR regulatory compliance related to employees. The EOR issues their pay-checks, pays the associated payroll taxes, files the relevant quarterly and year-end taxes, covers the employees with workers’ compensation insurance, manages the employee benefits and administers unemployment claims and insurance.

Through this type employment relationship, the EOR protects its clients from a wide range of employment regulations and risks. The EOR manages workers’ compensation claims, hires, on-boards and terminates employees, performs background checks, and handles general employee relations activities for the contingent workforce.

For employers who need short-term staff but don’t want the hassle of recruiting, hiring and managing these employees, the Employer-of-Record route may be the perfect solution.

3) Professional Employer Outsourcing

The third and most beneficial co-employment relationship falls under the category of Professional Employer Organizations, or PEOs, which we will discuss in our next article.

Termination of Employment

The Employment Law (100(1)/2000) in Cyprus includes both statute and case law. Specifically, Cyprus statute law contains issues related to the termination of employment, paid leave, annual social insurance, maternity leave, equal treatment at work e.t.c. The Labour Disputes Courts deals with issues related to the rights of employees and employers.

The Employment Law applies to every employee who has a contract or employment relationship in the private, public and semi-governmental sector.

The Employment Law does NOT apply to:

· employees whose total period of employment is less than one month;

· employees whose total hours of employment is less than eight hours in a given week;

· employees whose employment is of a casual nature and/or particular nature under the condition that in these cases the non-application of the Law is justified by objective reasons;

In this article, our employment lawyers will present the primary aspects of termination of employment in Cyprus, i.e. notice period, unlawful termination of employment and redundancy.

Under the Termination of Employment Law (24/1967), an employer intending to dismiss an employee, who has completed at least 26 weeks of continuous employment, is obliged to give the employee a minimum period of notice based on the length of his/her service, as illustrated below:

26 -51 weeks work (6 months- 1 year)

One week notice

52 – 103 weeks work (1-2 years)

Two weeks notice

104 – 155 weeks work (2-3 years)

Four weeks notice

156- 207 weeks work (3-4 years)

Five weeks notice

208 – 259 weeks work (4-5 years)

Six weeks notice

260 – 311 weeks work (5-6 years)

Seven weeks notice

More than 312 weeks work (more than 6 years)

Eight weeks notice

Unlawful termination of employment:

Following the Termination of Employment Law, an employee whose employment has been terminated unlawfully after completing 26 weeks of continuous employment with an employer is entitled to receive compensation. In addition, an employee who quit his/her job due to his/her employer’s conduct is also eligible to receive compensation. Second of all, it should be clarified that the amount of compensation is determined by the Labour Disputes Court following an application by the employee.

When assessing the amount of compensation, the Court takes into account the following criteria:

· The remuneration of the employee;

· The duration of employee’s service;

· The restriction of employee’s career prospects;

· The age of the employee;

· The circumstances of employee’s dismissal;

An employee cannot claim compensation if he/she terminated his/her employment for one of the following reasons:

· In case the termination of employment held as an outcome of redundancy, Act of God, war, riots, extreme weather conditions, etc.;

· In case of dismissal due to redundancy;

· In case the employment is terminated at the end of fixed-term contract;

· In case the dismissal is due to employee’s fault;

How to receive compensation for unlawful dismissal:

Submitting an application for unlawful dismissal compensation requires a professional legal support. An employment lawyer will assist you with all the necessary legal and administrative procedures so that to help you to get the compensation you deserve. Therefore, if you wish to receive a customised legal support contact one of our lawyers.

Redundancy:

The amount of redundancy payment is calculated as illustrated below:

Period of continuous employment

Amount of redundancy payment

Up to 4 years

2 Weeks wages for each year of continuous employment

More than 4 and up to 10 years

2.5 Weeks wages for each period of continuous employment

More than 10 and up to 15 years

3 Weeks wages for each year of continuous employment

More than 15 and up to 20 years

3.5 Weeks wages for each year of continuous employment

More than 20 and up to 25 years

4 Weeks wages for each year of continuous employment

How to claim redundancy payment:

In order to get payment from the Redundancy Fund, the employee must make a claim on the prescribed form, that can be found on Social Insurance Offices, Citizen’s Service Centre and the official website of the Ministry of Labour and Social Insurances.

The claim must be submitted to the closest Social Insurance Office, within three months at latest from the date of termination of employment. Nevertheless, in cases where the employee proves that he/she had a good reason for the delay, payment may be approved given that the claim is made within 12 months from the date of termination of his/her employment.