Author: Lehanne Bleumink, Gold Seal HR Services Manager.
It’s important for employers to be aware of responsibilities relating to employee rights and employer obligations. From time to time, employers and employees have misunderstandings about their rights and obligations at work. The Fair Work Ombudsman frequently sees examples of employers running their business based on myth. Below are some of the most common examples they hear every day:
WORKING HOURS AND PAY
MYTH: Paying low, flat rates of pay for all hours worked is OK if the employee agrees
FACT: False. Minimum lawful pay rates are mandatory. An employee can agree to include things such as penalty rates, overtime and leave loading into the wage rate, as long as the employee is better off overall. This agreement needs to be in writing and signed by both parties. This can be included in the employment agreement, or by entering into an individual flexibility agreement.
MYTH: Lengthy unpaid work trials and unpaid work placements and internships are OK
FACT: False. If someone is working for your business they must be paid. They are also to be given any conditions under the National Employment Standards (NES) and the applicable modern award. There is no such thing as an unpaid trial. Internships or unpaid work placements can be lawfully unpaid when they are part of an approved job training program, work experience program, or vocational placement and the work is done in accordance with the relevant program or placement.
MYTH: Employees must work for 12 months before they can take annual leave or personal/carer’s leave
FACT: False. All leave starts to accrue as soon as employees commence work. An employee can take annual leave at any time that is convenient to both the employer and employee. If an employee is sick, they can be paid personal/carer’s leave – as long as they have enough accrued and they have given notice, and if required, appropriate evidence.
MYTH: If an employee doesn’t use their annual or personal/carer’s leave during the year they lose it
FACT: False. Both annual and personal/carer’s leave accumulates from year to year.
MYTH: Employees are entitled to take personal/carer’s leave days without needing to provide proof
FACT: Employers are entitled to ask employees for evidence that would satisfy a reasonable person, for any absence on personal/carer’s leave, even if it’s for one day. This may be a medical certificate, but a statutory declaration, or other evidence may also be satisfactory. This is the case unless the modern Award, employment agreement or company Leave Policy says otherwise. An employer also doesn’t have to request evidence for every absence, or for absences that are over a certain number of days. It’s up to each employer when they want to request evidence. This should be clearly outlined in the company Leave Policy.
MYTH: Casuals aren’t entitled to any sort of leave
FACT: Casual employees are entitled to some unpaid leave under the NES, including unpaid carers’ leave, as well as unpaid parental leave in some circumstances.
MYTH: You can fire an employee without notice during their probation period
FACT: False. Under the NES, employees who have been working for less than 12 months must get at least 1 weeks’ written notice. It is important to check the employment agreement to see if this differs from the minimum requirement under the NES.
MYTH: Employers have to give employees 3 warnings before they terminate them
FACT: False. There is no legal requirement that an employer has to give 3 warnings prior to terminating. In an unfair dismissal case the Fair Work Commission will consider whether an employee was given a fair opportunity to fix their behaviour, or performance when deciding whether a termination is fair or unfair.
MYTH: Employers don’t have to pay leave loading on termination pay
FACT: The NES provides that on termination, employees must be paid what they would have been paid if they had taken the leave. This includes leave loading.
DOCUMENTATION AND CONTRACTS
MYTH: Pay slips aren’t mandatory unless the employee asks for them
FACT: False. Employers must give all employees pay slips within one working day of pay-day; they can be paper or electronic and is required to contain certain information.
MYTH: If a worker supplies an ABN they are an independent contractor
FACT: Having an ABN does not automatically make a worker an independent contractor. There are numerous factors considered when deciding whether a worker is a contractor or truly an employee.
It is vital for employers to know and understand their obligations as defined by the Fair Work Act 2009. Employers who have been following any of the myths above are encouraged to seek advice and assistance to ensure their business practices are correct.
For assistance on any of your HR/IR requirements – call Gold Seal on 03 9510 5100 or email email@example.com