A friend of mine recently approached me after she changed jobs as she had concerns about the wording of her employment contract. Essentially the contract dictated that she was only allowed 8 days of personal leave per year, called ‘sick’ leave in the contract, and that it was non-cumulative. It also spoke of not being able to take a ‘sick day’ after a public holiday unless proven to be genuinely ill.
The contract also contained other gems however I wish to highlight a clear breach of the National Employment Standards (NES).
What are the National Employment Standards?
The National Employment Standards sit alongside the modern awards which were implemented in 2010. The NES are legislated within Section 61 the Fair Work Act 2009 and set out the 10 minimum standards of employment. They are as follows:
- Maximum weekly hours of work
- Requests for flexible working arrangements
- Parental leave and related entitlements
- Annual leave
- Personal/carer’s leave and compassionate leave
- Community service leave
- Long service leave
- Public holidays
- Notice of termination and redundancy pay
- Provision of a Fair Work Information Statement
Who do the NES apply to?
The NES apply to all employees covered by the national workplace relations system (however only certain entitlements apply to casual employees).
Can the NES be wavered in individual contracts?
Aspects of any Modern Award, the NES and collective agreements can be modified upon negotiation between all parties; i.e. an employer and employee can sit together and modify the award etc. if they both agree with the terms. The further test though is that any modification must meet the Best Off Overall test (BOOTS) as …. Essentially the employee cannot be any worse of under a change to the award etc. but the change has occurred due to an agreement between both parties.
An example of a change to the modern award may be the reduction in the overtime provisions on the basis the minimum hourly rate of the employee is increased substantially. The prevailing outcome would be that the employee may lose overtime income however is better off overall on the basis that their minimum wage and employer superannuation contributions have increased to absorb any perceived loss of income.
Problem with current contract
In this instance I will use my friend’s contract as reference to one of the 10 standards being access to Personal/carer’s leave and compassionate leave. The NES states the following in this regard:
10 days paid personal/carer’s leave, two days unpaid carer’s leave as required, and two days compassionate leave (unpaid for casuals) as required.
The contract as provided to my friend had specific wording of only being able to access 8 days of sick leave per year which could not accumulate year on year. As mandated within the NES 10 days of personal leave (this includes sick leave) may be provided to the employee and commences accruing at the time you commence employment. The accrual rate for fulltime employees is 1.46 hours per week; i.e. it would take 5.2 weeks to accumulate one day of personal leave.
Secondly, Section 96 (2) of the Fair Work Act 2009 states in part:
Accrual of leave
(2)An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.
In my friends instance there are two clear breaches of the Fair Work Act 2009 being the amount of days provided for personal leave and the statement the personal leave days do not accumulate.
These two matters raised can be wavered by agreement between the employer and employee however it would fundamentally fail the BOOTS test as it is hard to see how either would see the employee better off.
Further, the comments about being proven genuinely ill if a personal leave day is taken after a public holiday seem incongruous with any legislative instrument within Australia. It would appear though the employer is seeking somehow to address (but failing) Section 107 of the Fair Work Act which states in part:
107 Notice and evidence requirements
(1)An employee must give his or her employer notice of the taking of leave under this Division by the employee.
(a)must be given to the employer as soon as practicable (which may be a time after the leave has started); and
(b)must advise the employer of the period, or expected period, of the leave.
(3)An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:
(a)if it is paid personal/carer’s leave—the leave is taken for a reason specified in section 97; or
Many collective agreements mention that if two consecutive days of personal leave are taken than a medical certificate is required by the employee. As defined in the act though this may not necessarily have to be the case as an employer can ask for evidence at any stage.
Our employers contract also mentions being proven genuinely ill; whilst not defined I would suggest they are speaking of a medical certificate but given the ambiguity within the language this hard to determine. I believe if the employer attempted to pursue this issue beyond the provision of a medical certificate by the employee than the employee would have significant recourse for unlawful discrimination and or bullying.
What recourse do employees have?
In this instance I have advised my friend to speak directly with the employer to see if the matter can be resolved.
I have further referred my friend to the office of the Fair Work Ombudsman to advocate the case on her behalf if the dealings with the employer fail. The FWO have Inspectors appointed to investigate such issues and as such and they can take enforceable action if required.
The penalties for breaching the NES are substantial for employers thus it is in the interest for each employer to seek and gain legal advice before constructing employment agreements with staff.
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Shane Stirling is a seasoned HR & HSEQ Manager in Cairns, Queensland. To learn more about his life and career, please visit his professional website.