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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. 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.

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.