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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. Can I extend a probationary period?

Yes, if the employee agrees or there is provision in the original employment contract allowing you to extend the probationary period.  However, once the MEP expires (being the minimum period of service before the employee has access to FW Act unfair dismissal laws) then the employee may be able to challenge any dismissal within the extended probationary period under FW Act unfair dismissal laws

Q. Should I have any concerns about contacting the employee directly while on stress leave?

Yes.  In some circumstances it is advisable to establish protocols with the employee’s relative or partner for communication whilst he or she is on stress leave. The reasons for this include (but are not necessarily limited to) the risks of exacerbation of a stress injury.

Q: We are considering reducing hours of a casual employee that has been with our organisation for a number of years. The employee's contract completed yearly states that work is dependent upon work being available. Due to the length of service are there any obligations we should be aware of.

Unless the enterprise agreement provides otherwise, a casual is not entitled to notice or redundancy pay. However Fair Work Act unfair dismissal laws may apply which means you will need to comply with the award requirements for consultation with employees.

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). Modern  awards and enterprise agreements often provide clauses dealing with directions to take annual leave so these should be consulted when considering a direction of this nature.

Q. I've found someone who I think will do a better job than my current employee, can I terminate them?

This will, in effect, amount to a performance-based dismissal of the person whose employment you are seeking to terminate. You will need to either implement a performance improvement process (if the employee can access unfair dismissal laws) or negotiate an agreed separation with the employee, if you want to replace them

Q. Can I put an employee on probation after the employee has finished a fixed term contract?

Yes, however if the MEP has expired, any dismissal during the probationary period will be subject to Fair Work Act unfair dismissal laws.

Q. An employee has provided a medical certificate for an absence before a public holiday. I suspect that the employee was fit for work that day. The certificate does not describe the employee’s illness. What can I do?

There is little you can do without concrete evidence that suggests the employee was fit for work.

Q. Do HR policies form part of the employment contract?

Whether HR policies are incorporated into the employment contact, will depend on how the contract of employment is drafted. Some employment contracts may incorporate an HR policy manual into the employment contract by reference, (i.e. by stating that the contract incorporates the clauses contained in the workplace’s policy manual) which will make those policies express term of the employment contract. Wording here is essential, as incorporation of policy documents can be held to be binding on employers as well as employees, and where it is alleged that employers have breached their own policies, aggrieved employees may have a right to sue under breach of contract as well as other potential avenues of redress.

Employers should take particular caution if incorporating disciplinary procedures into employment contracts as this may unnecessarily introduce a new avenue for employees to challenge disciplinary processes where adherence to these are promised as a condition of employment.

Q. We have accidentally overpaid someone for the last 3 months, are we able to get the amount in overpayment back?

If an overpayment has occurred, in order to deduct any amount from an employee, you must ensure that written consent is given by the employee.  The only deductions that can legally be made from an employee are those pertaining to PAYG income tax deductions. Employers need to mindful that there are special rules regarding the deduction or withholding of monies from workers’ wages.

When notifying employees of overpayments, or where an employee does not consent to a deduction being made, it is a good practice to explain that an administrative error has taken place in processing their pay but as a sign of good faith; these amounts will not be recouped. Employees should however be notified that their rate of pay will be reduced to reflect the correct amount in future pay cycles. It is often useful to point to the particular source of wage information applicable to them (e.g. modern award, enterprise agreement, contract of employment etc.) to assist in explaining the correct rate of pay.

Please refer to the Fair Work Ombudsman website for more information.

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.