Skip to

Global website search.

Other websites

Menu

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 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.

Q. Is there a maximum notice period for advising someone that their role is being made redundant? Could a company advise someone that their role will be made redundant in 6 months time once a particular project is completed if we cannot find a suitable alternative role?

There is no maximum notice period for advising someone that their role is being made redundant.  Advising someone that their role will be made redundant in 6 months’ time once a particular project is completed if you cannot find a suitable alternative role will not be notice of termination.

Q. What are the privacy implications in a sale of business situation?

You do not generally need to obtain employee consent to give a prospective buyer of your business access to records of personal information about your employees, provided your employees would reasonably expect that this access would be given. Often at a preliminary stage only aggregated information that is not personal information will be provided to a prospective buyer. It might also be illegal to tell the employees about the sale (for example due to ‘insider trading’ laws), which is an exemption of the requirement to consent for disclosure.

Q. What is sexual harassment?

Sexual harassment is unwelcome behaviour or conduct of a sexual nature that causes offence, humiliation or intimidation of the victim. The obligation not to sexually harass others applies to all workplace participants and is not only limited to direct employees of and employer. Included in this wide category of workplace participants are fellow employees, contract workers, commission agents, partners and job applicants.

Q: What are the privacy implications in a sale of business situation?

You do not generally need to obtain employee consent to give a prospective buyer of your business access to records of personal information about your employees, provided your employees would reasonably expect that this access would be given. Often at a preliminary stage only aggregated information that is not personal information will be provided to a prospective buyer. It might also be illegal to tell the employees about the sale (for example due to ‘insider trading’ laws), which is an exemption of the requirement to consent for disclosure.

Q: If evidence of misconduct about an employee arise when they are taking annual leave, do I have to wait until the employee is back from leave before investigating?

No, provided you give the employee a reasonable opportunity to respond to the allegations and the evidence when they return from leave.

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. If an employee approaches an employer to advise they have been offered employment elsewhere and would like to offer the employer to opportunity to make a counter offer, what rights does the employer have to move that employee on? Is this enough of a break down in the working relationship to warrant dismissal?

I don’t think this would be grounds for dismissal.

Generally, an employer must have a valid reason relating to the performance or conduct of an employee in order to terminate their employment.