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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. 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.

Q. I am selling my business and the purchasers aren’t keeping on my existing employees. Who has to pay for redundancy?

This is generally something to be determined between the parties to the sale of business transaction, with an adjustment to the purchase price to reflect such liability (if any at all). If the business is sold as an ‘asset’ or ‘trade’ sale, such that there is a change in the employer, then you will become liable for satisfying all termination entitlements including redundancy pay (if any – remember employer with fewer than 15 employees will not be liable to make redundancy payments under the Fair Work Act NES).  If the business is sold as a ‘share sale’, in that the employer is merely buying your shares or interests in the employing entity then the new owner will inherit all employment liabilities, including liabilities to make redundancy payments to retrenched employees.

Q. Can an employee use carer’s leave to look after their partner who has given birth to a child? What if it were an emergency caesarean?

Ordinarily the employee would be required to take this leave as concurrent parental leave.  However, if in the case of an emergency caesarean this would fall within the definition of “an unexpected emergency” affecting a family member and would probably entitle the employee to paid carer’s leave.

Q. Can I make a payment in lieu of notice?

The termination provision in an employment contract will usually provide for the right of the employer to make a payment in lieu of notice (i.e. in replace of the notice).  However, if there is no such provision, the employer will breach the employment contract if a payment is made in lieu of the employee serving the requisite notice period.

In a practical sense, the employer would not face any significant exposure to a breach of contract claim for making a payment in lieu of notice because the employee would not have suffered any compensable loss.

The FW Act provides that an employee may dispense with the statutory obligation to give notice by paying the employee an amount of salary in lieu of that notice.  FW Act notice payments must be at an employee's full rate of pay, including loadings, monetary allowances, penalty rates and other relevant amounts.

Q. Can I stop an ex-employee working for my competitors?

Generally, it will depend on the circumstances in which you wish to impose the post-employment restraint having regard to the reasonableness of imposing such a restriction. Employers commonly seek to protect their business interests by including restraint of trade clause in their employment contracts, however, these may not always be enforceable.

Q. One of our employees has been on unpaid parental leave for 12 months. They have just extended their leave for another 36 weeks making a total of 86 weeks leave. How does this period of unpaid parental leave affect ones Long Service Leave calculations?

Whilst a period of unpaid parental leave will not count towards the employee’s length of service for the purposes of accruing long service leave, it will generally not break an employee’s continuity of service with their employer. Therefore, upon returning to work from unpaid parental leave, the employee will continue to accrue long service leave as they did prior to taking the leave ie. they will pick up where they left off.

For more information on Long Service Leave in Victoria please see the following:

Q: We are currently implementing an internet and email policy and wanted to see if this could be considered part of an employment contract?

Whether an HR policy is incorporated into a contract of employment will depend on the express wording of both the policy and the contract.

The risks involved in incorporating HR policies into an employment contract via reference or by failure to expressly exclude the policy from the contract is that the terms provided in the policy may form a contractual obligation on the employer and if an employer fails to follow the policy (or seeks to change the policy unilaterally) they may be held to have breached the employment contract.

To avoid these risks there are two key steps an employer should follow:

  • Ensure that HR policies are drafted in such a way as to prohibit the policy from giving rise to any contractual obligation upon the employer to abide by their terms; and
  • Ensuring that employment contracts are drafted in a way to ensure that a HR policy does not form a term of the employment contract.

If you do wish to include an HR policy via reference into your employment contracts, this can also be done; however, you may wish to take legal advice as to the specific wording and potential implications on your business of doing so.

Q: Is there any legislation that requires an employer to have staff undertake bullying and harassment training during their induction? Or is it as the employer sees fit?

A: Whilst there is no legislation which specifically mandates frequency of training on EEO, bullying, harassment etc., you are obliged to maintain a healthy and safe working environment for your employees and you do have a responsibility to ensure your employees are adequately trained. With this in mind, best practice would be to include training in the induction process and then do a refresher at least every 12 months. Other instances which might necessitate refreshers are where there are legislative changes, an increase in instances of undesirable behaviour in the workplace and when employees are promoted to new positions (e.g. managers) to ensure they are aware of their obligations and the various avenues of redress and support.

Q: We lost a contract recently, and this has had an impact on the operations of one department in our business. Most of the workforce in this department are casuals, and we have been able to reduce their working hours.  One resource is permanent part time (32 hours per week).  We spoke to them about potentially needing to reduce their hours to 24 hours per week, as there just isn’t enough work without this contract to justify the extra time.  They has refused to consider or discuss a reduction in their hours. I’m looking for some information about this issue / redundancy or alternative options.

If you reduce this employee’s hours without their consent you run the risk of them making an unfair dismissal claim on the basis of a ‘constructive dismissal’ i.e. that your actions have meant that they have no alternative but to leave that job in search of a new one because they cannot get by on the reduced pay.

If you no longer require anyone to perform the role you may wish to consider effecting a redundancy. If you do so you should ensure that you properly consult with the employee (see below) in order to minimise the risks of an unfair dismissal claim.

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

In terms of when a casual can become a permanent employee, this will depend on a range of factors. These include whether there is a conversion to permanent employment clause in award or enterprise agreement which applies to the employee, and how regularly and systematically they have been working for one employer. The more regularly and systematically (i.e. there is a pattern or work over a long period of time) the employee works, the stronger their argument to being a permanent employee is in terms of claiming unfair dismissal if/when they are terminated. It is often a good idea to treat casual employees as true casuals; that being to vary the start and finish times, duration and days of their shifts so as to avoid risks of potential permanent employment arguments.

Q. Does the ‘qualifying period’ to be eligible for parental leave entitlement (ie. 12 months continuous service with the employer) start again? In other words does the employee have to come back to work for at least 12 months in order that she receive a new 2 year amount of parental leave?

An employee doesn’t need to serve a second “qualifying period” in order to be eligible to take parental leave again.  Once the employee has 12 months’ service (excluding the period of unpaid parental leave), an employee is able to take a second period of parental leave.

Q. Does the definition of 'immediate family' in the Fair Work Act include a member of an employee's immediate family who resides overseas?

The location of the family member is irrelevant when granting compassionate leave, it would still stand at 2 days, any additional leave would be considered annual leave. The Fair Work Act does not define reasons for refusal to grant annual leave.  However, we expect that it would depend on the notice the employee has given of the intention to take leave, the notice the employer has given of the refusal, the grounds for the refusal and the impact that the refusal will have on the employee.

Q: What are some strategies for managing absenteeism?

The following steps are a good way to try to improve employee attendance at work:

  • Communicating attendance expectations to all employees (this can be achieved via a leave policy and/or employee contracts of employment);
  • Monitoring absences of employees and the reasons given (this will help you identify any trends or common absence rates/types and help in addressing specific problems as identified);
  • Offering flexible work practices (this may be achieved by implementing work-life balance policies and encouraging a culture of diversity and inclusion); and

Conducting return to work interviews for those employee who have been absent from work (this will involve ascertaining whether employees are capable of returning to their normal duties, or perhaps if disciplinary action is required taking into account relevant circumstances and employee records).

Q: I would like to get clarity on definitions we can use to define the difference between a social function (not tied to the workplace) versus work organised staff function. I am undertaking a workplace investigation and need guidance behind what defines the work function outside of work hours.

There is no statutory definition of when an out-of-hours employee social event which occurs away from the workplace becomes a ‘work’ event, i.e. one which the employer is entitled to regulate or for which it could be directly or vicariously liable.

However, you need to consider whether there is a sufficient connection with work or the workplace such that the employer would be entitled (under the contract between it and the employee) or obliged (under legislation) to regulate the particular conduct which you are investigating.

This is because an employer is entitled and/or obliged to regulate certain conduct of its employees towards other employees even if it occurs outside of work hours and away from the workplace. For example, an employer can and should require that employees may not at any time bully, assault or sexually harass (or otherwise discriminate against) their fellow employees. The reason for this is that an employer is likely to be vicariously liable under relevant legislation for unlawful conduct such as this, unless it has taken all reasonably practicable steps to prevent it.

In those circumstances, the unlawful conduct has a sufficient connection with the workplace and so the social event becomes (for that purpose) a work event.

Q: An employee was approved annual leave a while ago as they planned to go overseas and visit a relative. The employee now wishes to claim a portion of that leave as compassionate leave as their relative has become terminally ill and may not live longer than a few months. Is this urgent enough to qualify for compassionate leave?

Given the circumstances, we would be of the view that compassionate leave is reasonable in this situation. Under the Fair Work Act, an employee is entitled to 2 days compassionate leave for each occasion that a member of their immediate family or household passes away or suffers a serious illness or injury.  It would appear that this situation qualifies as a serious illness.

Q: Two employees have resigned. Are there any risks if one employee is paid in lieu of notice and the other is permitted to work out their notice period (or longer) if both employees resign at a similar time? Can an employee argue victimisation or unfair treatment in comparison to the other?

If the differential treatment you refer to comes about because an employee has a protected attribute or is engaging in a protected activity under general protections or ant-discrimination laws then the employer may face liability under discrimination laws or similar provisions contained in the Fair Work Act.

Q: What modern award HR professionals would be covered by? If HR staff are paid under the high income threshold would they be covered by the General Clerk’s Modern Award?

HR professionals are not, in general, covered by any modern award.  Recruitment consultants are also, in general, not covered by any modern award.

Q. What is workplace bullying?

Workplace bullying is repeated, unreasonable behaviour directed towards a worker, or a group of workers, that creates a risk to health and safety. This includes the mental or physical health of the person(s). Workplace bullying is not reasonable management action carried out in a reasonable manner.

Q. I prefer my contracted parental leave employee to the employee who is on leave. Do I have to let them return to their old job?

When parental leave ends an employee is entitled to return to the position he/she held before commencing leave. If that position no longer exists, the employee is entitled to return to an available position at an equivalent level or similar nature and pay to the former position.

Q. what is the penalty for a breach or non-compliance of the Fair Work Act 2012?

In the case of a serious breach of the Fair Work Act 2012 (FW) requirements in respect of employee records a corporate could be liable for up to $25,500 in penalties and an individual $5,100

Further, for a breach of the FW Regulations in respect of record-keeping or pay slip requirements may lead to the Fair Work Ombudsman issuing penalties. This can occur within a year of an alleged contravention. The maximum fines for each contravention, which must be paid within 28 days of an infringement notice being issued, are $2550 for a corporation and $510 for an individual