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AHRI:ASSIST - question and answer

The team at AHRI:ASSIST answer members' questions every day. If members can't find what they're looking for they can send through their questions via the 'Ask AHRI:ASSIST' email service.
Here are some of the questions covered:

Q. What is the difference between a salary and wages?

Wages are generally paid on an hourly basis.  They can change depending on the number of hours worked and whether overtime or penalty rates are included.

A salary is an annual amount commonly paid either fortnightly or monthly.  In most instances the salary amount does not change even if the hours worked in a particular week vary.

Q.  An employee wants to take a period of unpaid leave to go on a holiday but they have not accrued sufficient annual leave.  Do I have to approve this? What do I do if the employee says they are going anyway?

You do not have to approve unpaid leave to take a holiday.  If the employee threatens to take the leave anyway you can warn the employee that you will terminate their employment if they take an unauthorised absence from work.

You could offer to advance them paid annual leave on condition that they authorise you to deduct the amount advanced from any amounts otherwise owing to the employee if their employment ends before accruing the amount of leave advanced.

Q. What are alternative solutions to making people redundant?

If the consideration of redundancy arises from a need to reduce labour costs, you could negotiate changes to employment (transfer from full to part-time, or temporary reductions in wages).  You can invite (or, if reasonable, require) employees to take annual leave or long service leave.  You could also create options for employees to take up unpaid leave or secondments

Q.  Can a (pregnant) employee go on unpaid parental leave before six weeks of the expected date of birth of the child?

If an employee is unfit for any work due to a pregnancy-related illness they can take unpaid special maternity leave.  This period is not included in the 12 month parental leave entitlement.

Q. Would requiring an employee to sign to acknowledge they have been advised of the content of a memo be considered reasonable?

Yes, employers can require their employees to sign a memo to acknowledge that they have read and understood the content, if requiring that signature is reasonable in all the circumstances. It is important that the content is reasonable, and that employees are not necessarily being asked to agree to the content of the memo.  

Disciplinary action cannot be taken on every occasion an employee refuses to sign a document, it would depend on the content of the document and whether the request to sign was lawful and reasonable (for example, asking to sign a workplace policy such as an OH&S Policy to demonstrate the employee has read and understood the policy).

Q. We are in the process of transferring our business.  what are our obligations with regard to our employees records?

In a transfer of business situation the previous employer is required to transfer the employment records for each transferring employee upon one of the following occuring:

  • the transfer of business assets
  • when the work is outsourced or ‘in-sourced’
  • for associated entities, when the employee is transferred.

The new employer must ask the old employer to provide them with the employee’s records and the previous employer must provide the records to the new employer

Please refer to our section on Transfer of Business for more information.

Q. An employee has requested access to notes the HR Manager took when conducting a performance management meeting.  Are we obligated to provide them?

No, there is no obligation to provide them.  The employee has no entitlement to them.  Of course, they may be discoverable in any court proceeding; however that is not a reason to provide them now when no reason has been given.  Instead you should refuse but at the same time indicate a willingness to assist the employee with his/her query if it is reasonable.

Q. How long do we need to keep our employee records for?

Records that are required to be kept under FW Act are required to be kept for seven years.

Q. Can an employer ask staff to pay a deposit for compulsory uniform items?

The FW Act prohibits an employer from directly, or indirectly, requiring an employee to spend an amount in relation to the performance of work, it that requirement would be unreasonable.

Generally, it may be reasonable to ask staff to pay a deposit for uniforms depending on the amount.

If the employee is covered by an award or enterprise agreement this may include terms relating to payment for uniforms.

Q. We’ve recently taken on some new staff and have found that no one holds any current first aid training. Can you please advise what the employers obligations are in regard to first aid training?

The Model Work Health and Safety Regulations released in 2016 provide the basis for nationally consistent work health and safety laws. The duty to provide first aid requires a business or undertaking to ensure there is first aid equipment in the workplace; that each staff member has access to the equipment, and for administration of first aid. In relation to training, there must be an adequate number (not defined) of workers trained to administer first aid; or, workers have access to other persons trained to administer first aid.

Q. We’ve had an employee issued with a restraint order against them (by another employee), what should we do?

Majority of restraint orders relate to disputes that occur away from the workplace. Despite this, as they are in place to restrict or prevent communication or other contact between two or more people means that some have the potential to affect the workplace as well. Workplace health and safety legislation requires the employer to protect the safety and health of all employees and other people present in its workplaces. This requirement necessitates taking steps to comply with the terms of the order by restricting or preventing contact between the parties.

You must ensure the parties are aware of their obligations to comply with the order whilst at work and any breach of the order may result in action against them, including dismissal (see Fair work). Managers must also be aware of the order and ensure it is enforced in the workplace.

As with anything it is helpful if the organisation has a policy and procedure addressing restraint orders (it could form part of the Bullying and Harassment Policy).

How would this look in practice? You may need to consider physically separating the employees (different work location; work from home). If practicable, stopping email and telephone contact between the parties. Provide training for managers on how to manage this work situation.

Q. What are alternative solutions to making people redundant?

If the consideration of redundancy arises from a need to reduce labour costs, you could negotiate changes to employment (transfer from full to part-time, or temporary reductions in wages).  You can invite (or, if reasonable, require) employees to take annual leave or long service leave.  You could also create options for employees to take up unpaid leave or secondments.

Q. A union representative wants access to an employee’s file. Is this allowed and is 24 hours’ notice still required or are they allowed immediate entry?

Under the Fair Work Act a condition for the union official's right to request and inspect records relating to your employment of a member of their union is that the record is directly relevant to a suspected contravention of the Fair Work Act, award, enterprise agreement, etc.

There is a 24 hour notice period requirement if the person wishes to access employee records.

Q: When does a casual employee become a permanent employee? Are there risks with long term casuals?

A long term casual remains a casual; however they may have rights to convert to permanent employment after a period of service under an applicable award or enterprise agreement. Regular casuals with an expectation of systematic employment accrue unfair dismissal rights and unpaid parental leave after certain periods.

Q. What steps should we take if bullying is identified?

Instances of bullying behaviour may be identified by the people directly involved, or by people observing the behaviour. In all cases, it is recommended that people:

  • Record what happened, when it happened, whether it has happened before, how often and who was involved or around at the time;
  • Record their own understanding of the situation and accept different people legitimately have different interpretations/recollections of the same events; and
  • Take appropriate action in accordance with an established policy – this may mean addressing the issue directly with the other person, encouraging people to take appropriate actions, reporting the matter informally to HR or a senior manager or making a formal bullying complaint.

Q.We do not measure turnover rates. Where should we obtain this data?

You should consider regular reporting of turnover rates to see any trends within team, departments and the organisation as a whole. Turnover costs the business time, effort and money. Exit interviews and Exit reports can assist with turnover calculations. Payroll may will able to assist with collecting this data from their system. To see example turnover calculations refer to the Workforce Turnover section and Workforce Turnover Checklist template.

Q: Is information contained in a reference accessible?

An ex-employee does not have a right of access to a confidential reference you give about the ex-employee to a prospective employer, if you gave the reference on a confidential basis. However, please note the common law duty not to provide a false, misleading or negligent reference for ex-employees.

Q. When do I have to pay leave loading?

You need to check whether this entitlement arises under a modern award, enterprise agreement or employment contract.  If there is such an entitlement you would ordinarily have to pay this on unused accrued leave paid out on termination.

Q. Who is responsible for administering WHS or making sure organisations comply with WHS laws in an organisation?

The following people have compliance obligations under the WHS laws:
(a) The "person conducting the business or undertaking" (PCBU) has the primary duty of care for ensuring the health and safety of workers and other persons who may be affected by the business or undertaking;
(b) Officers of the PCBU must exercise due diligence to ensure that the PCBU complies with its WHS duties and obligations; and
(c) Workers and other persons at workplaces (e.g. visitors) also have duties to take reasonable care for their own health and safety and that their actions do not adversely affect the health and safety of other persons.