Welcome to our monthly Workplace Relations Update for Executives On-The-Go.
In this update we cover:
- Attending Employees’ Medical Appointments
- FWA requires a Social Media policy to justify dismissal
- Changes to the Fair Work Act
- New legislation to protect employee entitlements when a company goes under
- Harmonised Work Health and Safety: electrical safety and risk assessments clarified
- The State of the Nation: productivity and levels of education
Attending Employees’ Medical Appointments
The Fair Work Ombudsman has drawn a line in the sand and issued a statement condemning employers who have insisted on attending their employees’ medical appointments in order to ensure that medical certificates are being issued based on valid information.
In a statement limited to claims for sick/personal leave or carer’s leave, the Ombudsman advised that a medical certificate or statutory declaration were sufficient evidence to justify payment of leave. Any further attempts by employers to go behind the issue of the certificates was considered to be an unwarranted intrusion on the employee’s privacy, and only justified in “unusual or exceptional circumstances”. Note that this matter has not been tested in court, nor is it clear what powers the Ombudsman has to stop the practice.
Allegations were brought by the ACTU that some employers had been attending medical appointments with injured or ill employees or pressuring medical practitioners to change medical certificates and return-to-work plans. The Ombudsman recommended that where the employer suspected fraud, they report it to the appropriate bodies responsible for investigating medical practitioners.
The Ombudsman’s position is restricted to claims for personal/carer’s leave and does not apply to workers compensation claims where different rules apply (and they are applied by the States and Territories).
Fair Work Australia Requires a Social Media Policy to base dismissal action
In a very recent case, the Full Bench of Fair Work Australia held that where an employee was dismissed for making offensive and discriminatory comments about his managers on his Facebook page, the employer should have had a Social Media Policy communicated to employees to justify taking disciplinary action. In this case, the employee relied upon ignorance, including his lack of understanding of how his privacy settings applied, how far his comments could be published, and his ability to communicate in his free time. The Commissioner in the first instance noted that an employer should have a policy to articulate what constituted serious misconduct given the newness of social media and the inexperience of some users.
Changes to the Fair Work Act
The federal government has indicated it will draft legislation to implement the twenty or so recommendations (out of 53) made by the Review Panel to amend the Fair Work Act ,which have received broad support from employer associations, unions, and State and Territory governments.
Proposed changes include:
- providing for cost orders where a party continues a matter where a settlement is considered reasonable, or does not discontinue the action (and this includes cost orders against lawyers and bargaining agents),
- extending the time limit for unfair dismissal applications to 21 days (currently 14 days),
- preventing enterprise agreements being made with just one employee, and preventing employees from opting out of an enterprise agreement, and
- giving Fair Work Australia the power to dismiss unfair dismissal applications where the applicant fails to turn up, or fails to comply with FWA orders or directions.
Interestingly, the changes also provide for a Fair Work Australia Commissioner to disclose a conflict of interest to all relevant parties, and not just to the President.
This will be the first tranche of changes, with the other, more contentious, Review Panel recommendations to undergo further consultation before the government drafts additional amendments.
Protection for Employee Entitlements when a company becomes insolvent
The federal government has introduced legislation into parliament to replace the current administrative scheme (General Employee Entitlements and Redundancy Scheme) which provides a safety net for employees who miss out on their pay and entitlements when their employer goes bankrupt or into liquidation.
The Fair Entitlements Guarantee Bill provides for employees to be paid according to their relevant industrial instrument (National Employment Standards, or their Award or Agreement) including up to 13 weeks’ unpaid wages, up to 5 weeks’ notice, redundancy pay up to a maximum of 4 weeks per year of service, and annual leave and long service leave. The guarantee is extended to cover employees who keep working following the appointment of an insolvency practitioner.
The federal government would seek to recover the money as a creditor from the dividends payable once the employer was wound up.
The heavy emphasis on conducting risk assessments in the harmonised Work Health and Safety legislation has been clarified in a new fact sheet from Safe Work Australia.
A risk assessment may not always be necessary: if the WHS Regulations, or an existing Code of Practice already mandate or recommend certain controls to manage a risk, or your industry has an accepted and effective control method, then those controls can be applied without the need for a risk assessment.
However, where there is no such guidance, or you have a number of different hazards and you may not be sure about how the hazards interact with one another, then a risk assessment should be carried out. When conducting certain high risk work, such as working in confined spaces, a risk assessment is mandatory. As a rule of thumb, if in doubt, conduct a risk assessment.
For those of you who were forced to drink lattes from a barista because the electric jug at work had not been safety tested, you will be relieved to know that the new WHS Code of Practice does not require testing for office jugs, toasters and similar devices, unless they are being used in a “hostile environment”. A hostile environment is defined as circumstances where there is dust, or moisture, or some other environment which is different to the one for which the device was intended.
Another new fact sheet from Safe Work Australia helps interpret the new Act and Regulations with respect to electrical safety, setting out the recommended testing regime for differing equipment and circumstances. In a boost for manufacturers and retailers of Residual Current Devices (RCD), also known as “safety switches”, they are recommended for a considerable number of scenarios, including contract cleaners using portable RCDs when vacuuming your office.
Better Educated, but Productivity Goes Down
In a recent Australian Bureau of Statistics (ABS) report “Measures of Australia’s Progress 2012” data indicates that life expectancy and levels of education in Australia have risen over the last decade, but productivity showed a 0.8 % decrease over the most recent productivity cycle. In a separate release, the ABS reports that seasonally adjusted unemployment rose by 0.3% to 5.4% in the September quarter. Women in full-time employment are taking up a significant proportion of new jobs created, with a drop in part-time positions. This was reflected in the rise in the aggregate number of hours worked.
How CompliSpace can help
All of these recent issues highlight the need for employers to have:
- legally compliant policies which are regularly reviewed for currency and relevance
- employee inductions, training, and testing to implement and embed those policies
- regular communication with employees to remind them of the policies
- a means of obtaining assurance that the policies are actually being followed.
CompliSpace’s comprehensive range of cost effective human resources policies, procedures, training and testing modules, ensure that managers and staff know what is expected of them and have key tools and information at their fingertips at all times. This enables a business to meet their workplace relations obligations while building a positive corporate culture, capturing knowledge and saving time. For more information, contact us on the details below:
P: +61 (2) 9299 6105 (Sydney) / +61 (8) 9288 1826 (Perth)
This blog is a guide to keep readers updated with the latest information. It is not intended as legal advice or as advice that should be relied on by readers. The information contained in this blog may have been updated since its posting, or it may not apply in all circumstances. If you require specific or legal advice, please contact us on (02) 9299 6105 and we will be happy to assist.