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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 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

Q. Can I withhold sick leave pay until a medical certificate is provided?

You can only require a medical certificate as a condition for payment if it is reasonable.  It will generally be reasonable when the period of sick leave is 2 or more consecutive working days, or where there is a pattern of taking sick leave days before or after weekends of public holidays.  Generally, however, you cannot withhold sick leave pay for one-off days because a medical certificate has not been provided.

Q. Can I direct my employees to take annual leave and in what circumstances?

You can require employees to take annual leave if the requirement is reasonable.  Factors determining reasonableness include the reasons for imposing the requirement and the notice given of the requirement. It will be reasonable during Christmas shutdowns or when accrual is excessive (provided the employee understand when leave is excessive and is given reasonable warning that he or she needs to run down accrual).

Q. Can I insist that the employee is cleared for unrestricted duties before allowing the employee to return to work?

If the employer imposes this requirement it might be inconsistent with its obligations under anti-discrimination and workers’ compensation legislation (see above).

Q. Does a contract of employment need to be in writing?

No. An employment contract need not be in writing. In fact, many employment contracts are informal and readily inferred from the fact that someone performs work for another party, and that other party pays the worker. However, it is beneficial to have the terms of an employment relationship written downs clearly in a formal employment contract in case there is any dispute over the terms in the future.

Q. What is best practice in turnover rates?

Reported employee turnover rates commonly range anywhere from 2 to 30 per cent per annum.

As a guide, six percent turnover is often cited as healthy retention. Concern may be warranted if turnover is 15 per cent or higher. Take note that turnover rates vary due to a number of factors: the type of industry, company size, company culture and leadership and management priorities.

Q. What is HR's role to play in Work Health and Safety? 

The scope of HR's role will be affected by whether or not the organisation employs a dedicated WHS officer. If not, HR will likely be responsible for monitoring the organisation's safety performance, including by ensuring that workers are complying with the organisation's WHS policies and procedures. HR may also be required to report on the organisation's safety performance to its officers, so as to help them satisfy their due diligence obligations

Q. Can we electronically record meetings?

Meetings or conversation can only be recorded with the express consent of all parties involved. You should take the appropriate safeguards to ensure that, if a dispute arose about whether consent was obtained, you could definitively prove that consent was freely given by all involved.

To secretly or covertly record a conversation may contravene several Australian laws, and would mostly be useless as evidence due to the Evidence Acts.

Q. Does the job description form part of the employment contract?

This will depend on whether the job description is attached to the employment contract, or if the job is described in detail in the body of the employment contract. Employers need to be aware of the effect job descriptions can have on managerial directions; a comprehensive job description in association with an employment contract may limit the employer’s implied contractual right to require an employee (and the employee’s corresponding duty) to comply with all lawful and reasonable directions of his or her employer.

Q. Can I lawfully terminate an employee for absenteeism?

You can discipline, and potentially dismiss an employee for not following rules about taking sick leave e.g. notifying the employer as soon as practicable of sick leave absences. You can lawfully terminate the employment of an employee who has exhausted their paid sick leave entitlement and taken more than three months of sick leave days in a year. However, if the sick leave absences are because of an impairment or disability, anti-discrimination laws may require a degree of flexibility in responding to sick leave absences if it reasonably accommodates the employee’s condition.

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

The Fair Work Act prohibits an employer from directly, or indirectly, requiring an employee to spend an amount in relation to the performance of work, if 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. Can we force employees to take unpaid leave in addition to their 4 weeks' paid leave?

Generally, you can’t force an employee to take a period of unpaid leave. However, there are limited circumstances where this may be reasonable. For example, If your employees are not covered by an award or an enterprise agreement you may require them to take a period of leave during an office shut down over the Christmas/new year period. If they do not have sufficient annual leave to cover this period, then it may be reasonable to require them to take a portion as unpaid leave.