25 Sep HR Law Newsletter – September 2014

CHRISTMAS SHUTDOWN … TIME TO GET YOURSELF IN ORDER

Are you planning to shut down over the Christmas and/or New Year’s period?

Some employment contracts, Enterprise Agreements and/or Modern Awards allow an employer to require an employee to take annual leave during a shut down over the Christmas and New Year period.

If you intend to shut down over the Christmas and New Year period, now is the time to start thinking about what length of notice is required to be given in order to ensure you have sufficient time to provide that notice to your employees.

If your employees are covered by a Modern Award, you will first need to consider whether the applicable Modern Award provides for shut down periods. Not all Modern Awards contain a provision about a shut down. Some Modern Awards which incorporate such a provision, include, the Building and Construction General On-site Award 2010, the Clerk-Private Sector Award 2010 and the Banking, Finance and Insurance Award 2010. The length of notice required varies from award to award, for instance, under the Clerk-Private Sector Award 2010, employers must provide at least four weeks’ notice of a shut down to their employees, whereas, the Building and Construction General On-site Award 2010 requires an employer to give an employee at least two months’ notice of any intended shut down.

An employee’s entitlement to notice of any intended shut down period may also be contained in the employee’s employment contract and/or an Enterprise Agreement. All instruments covering an employee’s employment should be reviewed to ensure that each separate instrument is being complied with. An organisation should also consider and comply with any procedural matters (if any) contained in an applicable instrument (i.e. how should notice of any shut down be given to the employee).

Not sure? HR Law can assist you to determine what notice period you are required to give your employees and any procedural matters that must be complied with.

SUSPICIOUS THAT YOUR EMPLOYEES ARE MISUSING THEIR PERSONAL/CARER’S LEAVE … WHAT CAN YOU DO?

Does it seem like every second Monday or Friday, employee X takes a day of “sick” leave? Has employee Y, a dedicated football fan, been talking about the big game that’s happening in Melbourne on Friday, mysteriously taken Friday off on “sick” leave? Does the medical certificate you’ve been provided by employee Z, look legitimate? The below article considers options for employers to reduce their employees misuse of personal/carer’s leave.

In accordance with section 107 of the Fair Work Act 2009 (“FW Act”), an employee must provide, as soon as practicable, notice to their employer that they are taking personal leave and the proposed duration of that personal leave. Section 107(3) of the FW Act further provides further that where an employer requires, an employee must provide evidence that would satisfy a reasonable person that the personal leave taken is for a permitted reason (i.e. a reason stipulated in an Enterprise Agreement or as otherwise contained in section 97 of the FW Act).

Section 107(5) of the FW Act states that a Modern Award or Enterprise Agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to, paid personal/carer’s leave. The Fair Work Ombudsman also considers it reasonable for an employer to include the kind of evidence required and when that evidence is required to be given, in a workplace policy.

Generally speaking, a medical certificate or other documentary evidence (i.e. a statutory declaration) will ordinarily be sufficient evidence to satisfy a reasonable person that the reason for the leave is genuine. However, an employer who is suspicious that the leave is not genuine may challenge the validity of the evidence (i.e. a medical certificate) where unusual or exceptional circumstances exist where by the employer has reason to suspect that the reason given for the taking of personal leave is not genuine (e.g. an employee provides a medical certificate claiming they are sick on a Friday but the employer obtains photographs from the employee’s Facebook page showing that the employee has flown interstate to attend a football game).

What can you do to reduce misuse?

• Implement a policy about when evidence of personal/carer’s leave is required to be given (i.e. after more than one day of continual leave, where the leave is taken on a Monday, Friday, or before or after a public holiday or any annual leave). Set out in the policy what will be considered sufficient evidence (i.e. a medical certificate or statutory declaration). In this regard, consideration should be given to anything contained in an industrial instrument. The policy should also specify that personal/carer’s leave should only be taken for a genuine reason and any misuse may result in disciplinary action. Lastly, ensure that all employees are aware of the policy and that the policy is enforced consistently across the workforce.

What if you suspect misuse?

• Request evidence of the personal/carer’s leave. If the evidence provided by the employee does not satisfy you that the reason for the leave is genuine, you may also like to consider the following options:
• Obtain the employee’s consent to contact the medical practitioner who certified the employee as sick to confirm that they did in fact examine the employee and certified them unfit for work during the period specified on the certificate.
• Where the sick leave is suspicious, no details of the illness or injury are specified on the medical certificate (i.e. the condition is noted as a “medical condition”) and/or the period of absence is for an unreasonable amount of time in the circumstances (i.e. a week or more), you may wish to require the employee to provide you with sufficient medical information regarding the employee’s illness and/or if reasonable, direct the employee to attend a medical examination paid for by the employer to obtain that information.
• A more extreme option would be that if you have a genuine reason to suspect that an employee’s personal leave is not being taken for a genuine reason, you may wish to hire a surveillance company to monitor the employee. Caution should be used when considering this option however.

If you still suspect and have evidence in support of your suspicion, that the leave was not taken for a genuine reason, you may wish to raise the matter with the employee and instigate a disciplinary process. In any process you should have regard to matters of procedural fairness.

FAIR WORK COMMISSION ALLOWS MULTIPLE EMPLOYEE ADVERSE ACTION CLAIM

Construction, Forestry, Mining and Energy Union-Mining and Energy Division Queensland District Branch v Anglo Coal (Dawson Services) Pty Ltd [2014] FWC 4708  

On 15 July 2014, the Fair Work Commission (“FWC”) made its first ruling on whether a Union could include multiple employees on a single general protection application. Deputy President Asbury in rejecting Anglo Coal’s argument that the Fair Work Act 2009 (“FW Act”) did not allow for multiple employees to be included on one application stated that “there is no reason why a single application cannot encompass multiple disputes, particularly when there is a common denominator”.

Briefly, the decision arises from the CFMEU applying to the FWC under section 356 of the FW Act for the FWC to deal with a dispute involving the dismissal of 86 employees by Anglo Coal. The number of employees was subsequently reduced to 60 after it was brought to the CFMEU’s attention that 21 employees had taken a voluntary redundancy, four were still employed and one was unknown to Anglo Coal.

Please contact HR Law if you have any questions about this decision.

LEGISLATION CHANGE – APPRENTICES AND TRAINEES IN QUEENSLAND

On 1 July 2014, the Vocational Education, Training and Employment Act 2000 (Qld) (“Former Act”) was replaced with the Further Education and Training 2014 (Qld) (“Act”). The Queensland Government’s reasoning for replacing the Former Act, was that the Former Act did not meet the needs of the industry and required amendments to reduce red tape and increase flexibility.

The Act retains the key concepts for apprenticeships and traineeships contained in the Former Act, but makes a number of reforms including (as detailed in the Explanatory Notes to the Act):

• reducing timeframes for the lodgement of training contracts;
• replacing the complex system for suspension and cancellation of training contracts by introducing a new simplified model which emphasises resolution of matters by consent of the parties rather than by decision of the chief executive;
• removing duplication between the Former Act and industrial relation legislation in relation to the employment of apprentices/trainees by ensuring employment-related remedies can only be sought under a single legislative instrument (i.e. the Industrial Relations Act 1999 or Fair Work Act 2009); and
• allowing for the permanent transfer of training contracts between employers to remove the need to cancel and re-register a training contract.

HR Law can assist with any questions you may have about how this Legislation Change may affect you.

The content of these articles is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact Jill Hignett, Managing Partner of HR Law on j.hignett@hrlawyers.com.au.