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Fair treatment for labour-hire employees

From the 28 June 2020, the Government passed the Employment Relations Triangular Employment Amendment Act.  This allows an employee of a temp or agency company who is working for you to include you in a personal grievance.

What is triangular employment

Triangular employment is a labour-hire model where the employer (the agency) arranges for the employee’s placement or assignment with a third party, also known as the controlling third party.  The controlling third party directs or controls the employee’s day-to-day work and the employee performs their work for the benefit of the third party until the arrangement ends.

In most cases, issues arise from the controlling third party (you) and the purpose of the legislation is to ensure that employees employed by one employer but working under the control and direction of another business or organisation are not deprived of the right to be covered by a collective agreement and also to have the right to lodge a personal grievance.

In the past, employees could only bring a personal grievance, such as harassment or discrimination, against their employer, the labour-hire company.

What does this new law allow?

The new law now prohibits third party employers to deal with labour-hire and temp contract workers as disposable labour, where they can no longer be subjected to unfair behaviour.  The new law allows either the employee or the employer to apply to the Employment Relations Authority to join the third party to a personal grievance claim.  An employer may decide to include you if it was your actions that lead to the PG claim.

3 Traps

  • Treating these employees as disposable or as second class labour
  • Not being clear about what you would like these employees to do.   Constantly changing your mind about the standards that you expect from these employees creates issues.  
  • Not involving the agency in your decisions about these employees

5 Ways to avoid these traps

1. Read the contract that you have with the agency carefully before you start the temp agency person. Make sure that you are clear about your role and their role. 

Ask yourself, how will I deal with any performance or personality issues or incidents at work at your work if that is not clear?  If it is not clear, have a conversation with the agency to clarify how you will deal with issues going forward.  This is preparing for the worst situation.

Hopefully it will not occur.  It is a fail-safe way of making sure that you understand your role and they understand their role.  Any misunderstandings between the two parties who have signed the contract or agreement are tidied up quickly.

2. In the past, some employees have treated agency or temporary workers as disposable labour.  If it doesn’t work out, they ring the agency and said, provide me with another person.

There can be a lack of communication with the employee or even with the agency about the performance or the personality problems that have arisen.

That must change immediately and you must almost treat the agency or temporary worker as if they are one of your employees.  That is with respect and you must be fair about what you expect from that employee.  If it doesn’t work out, then you must ring the agency and say that it doesn’t work and state why.

It is perfectly OK to have a conversation with the agency that the agency employee is not working out for either performance or personality issues.  For example, if you have hired a receptionist and they don’t follow what you would think to be acceptable standards of behaviour with incoming customers, then in the first instance you should tell the agency employee.

If they react badly, then talk to the agency and even consider saying to the agency, “It hasn’t worked out.  Please find me somebody else”.

3. Treating these employees as second class labour must be avoided. It is important to think of these employees as if they are your employees.  Do not develop a mindset that a temp worker is merely second class citizen and will be treated as such.

Treat the engagement of an agency employee as if that person is one of your employees and terms of a recruitment decision.  Yes, it is perfectly legitimate to use an agency person to replace key staff who are away, for example, a receptionist has to take annual leave and nobody else can do that function so that you are replacing your receptionist with an agency person for a week or a limited period of time.  Even in that case make sure that you conduct a good induction or orientation, and be very clear about what you would like these employees to do.

4. You must involve the agency in your decisions about these employees.  Most agencies will develop a good and constructive relationship with you about the placement of their employees in your organization. After all, they’re making money from the employee being there and they hope for repeat business with you.

If there is an issue with the first point of contact within the agency, escalate the problem.

Keep notes of your conversation.  Some issues can be dealt with very quickly and may simply be a question of misunderstanding about duties, about the standards that you require.  If you can clarify those with the agency employee, great, however, there will be times that you will not be able to clarify those issues or improve the performance of the employee to the standard that you require.

In that case, check with the agency about any process that they have and get them to deal with their employee be open and honest about why that employee hasn’t worked 

5. Contact Steve Newby of NewbyHR for help if you feel that you cannot cope with the situation involving an agency employee we can offer help to deal both with the temporary agency itself and with the agency employee if need be.

To find out more about this new law, please contact Steve Newby on 0212621035; steve@newbyhr.com

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