Ask an Employment Lawyer is a FREE series by Recruitment Marketing Magazine with Jonathan Mamaril, Director for NB Lawyers – Lawyers for Employers. If you’re a talent leader or HR professional subscribed to RMM, ask any talent engagement, employment law or workplace-related question and have it answered in this series.
You asked, Jonathan answers. Thank you to readers who submitted their questions. In this instalment, Jonathan provides his answers, sharing information about leave entitlements, employer’s work-from-home obligations, JobMaker and more.
Q1) Hi, if employees have exhausted all sick/annual leave entitlements after the holidays, should we allow them to go into negative leave balance? If so, how much negative leave balance should we allow?
There are two parts to this question, the first is the personal leave component (sick leave) the second is annual leave.
Personal Leave
With respect to personal leave, we recommend it only be allowed where an employee is entitled to personal leave under the National Employment Standards (for example a personal injury or illness). An employer should not allow a person to use their personal leave to supplement annual leave (unless there is a genuine entitlement to personal leave). By doing so you may create an expectation among employees that they are entitled to use annual leave and personal leave interchangeably.
There is also the option of allowing unpaid personal leave if the leave entitlements have been utilised.
Allowing employees to go into negative personal leave balance is not recommended because employers will likely encounter difficulties in recovering outstanding personal leave from final termination pay. There are strict limits on when amounts can be deducted from employees pay and without proper documentation, an employer may be left with no recourse to recover personal leave paid in advance.
Of course there are exceptions and if you have a policy allowing negative leave balances then you will need to follow those policies.
Annual Leave
Annual leave operates differently. Under all Modern Awards there is ability for an employer to enter into an agreement with an employee to take annual leave in advance. Such an agreement may be necessary where there is an office closedown over the Christmas break.
In these circumstances an employer should enter into a written agreement setting out:
- The amount of leave to be taken in advance; and
- The date on which leave is to commence;
The agreement must also be signed by the employer and employee.
This agreement must also be retained as an employee record. If an employer enters into an agreement to take annual leave in advance, they are entitled to deduct any outstanding leave in advance from the employee’s final termination pay. This is supported under Section 324 of the Fair Work Act.
Despite there being a broader scope to allow annual leave to be taken in advance, the amount of leave taken in advance should be minimised (e.g. no more than 1-2 weeks). Unlike personal leave, there is scope for an employer to refuse a request for annual leave provided the refusal is reasonable. As such, if an employee makes a request for annual leave in advance it can be refused on reasonable grounds.
Got a question for Jonathan? Send it to editor@www.rmm.onenazmul.dev. Mamaril and his team of employment lawyers at NB Lawyers will answer as many as they can and share these answers in Recruitment Marketing Magazine*.
Q2) Can any age discrimination charges against employers be made if you can only hire employees under 35? (For the JobMaker hiring credit)
In its current form, the JobMaker Hiring Credits are intended to support employees within the 16 to 35 year age bracket, who have been very disadvantaged by COVID-19. In practical terms, this is a welfare measure intended for their benefit. As to whether allegations of age discrimination can be made, we need to look at the position at the State and Federal level.
At the Commonwealth Level, section 33 of the Age Discrimination Act 2004 (Cth) permits ‘positive discrimination’ if there is a bona fide benefit to persons of a particular age, intended to meet a need that arises because of the age or intended to reduce a disadvantage experienced by person of a particular age. The JobMaker scheme arguably fits within this exemption. It is intended to reduce the unemployment rate of persons aged 16 – 35, who have been impacted by COVID-19.
As an example of state laws, in Queensland, there is no ‘positive discrimination’ provision under the Anti-Discrimination Act 1991 (QLD). Employers have had to specifically seek exemptions when they wished to benefit a particular group of people. As an example, in Re: Protech Personnel Pty Ltd [2019] QIRC 175, Protech Personnel applied to the Queensland Industrial Relations Commission to be able to specifically advertise for and recruit women for the construction industry. Women have been historically underrepresented in this industry. Protech Personnel’s actions were well-intended, however they were still required to specifically apply for an exemption.
In our view, section 104 of the Anti-Discrimination Act 1991 (QLD) may be relevant. It allows a person to do an act, to members of a group with an attribute (such as age), if the act was designed to assist their welfare. Given the intention of the JobMaker Scheme is to benefit the welfare of a particular age group, it may fall within section 104 of the Queensland Act, creating an exemption to age discrimination.
Having regard to the above, there is unlikely to be an issue if an employer only hires persons eligible for JobMaker. There may well be an issue however, where the employer specifically advertises for persons aged 16 – 35. There is a material difference between merely making use of JobMaker and specifically excluding applicants from applying for a vacant position because of their age.
Q3) With JobKeeper due to expire in March, can employers terminate employees if there is no work? (What if there is work for some employees but not all?)
The unavailability of work does not in itself create a reason to dismiss an employer, however it is a change to the operational requirements of an employer’s business. The employer can then make decisions as to whether or not certain roles are still required, having regard to the changes in operational requirements. If roles are no longer required, the employer may be able to dismiss an employee for reasons of redundancy.’
There is a process for this however and depending on the industrial instruments in play it can even be prescribed.
If an employer and/or an employee is covered by an award, there may be certain consultation obligations under the award that must be fulfilled prior to making a role redundant. These consultation obligations are quite strict, for example, most awards require information to be providing in writing to potentially affected employees.
Regardless of whether an employer and/or employee is covered by an award, there is still an obligation on an employer to consider redeployment opportunities. These opportunities may not exist in the event of unavailability of work, however the onus remains on the employer to give consideration.
Failure to consider redeployment or properly consult with employees may lead to additional risks for an employer (for example, the risk of a successful unfair dismissal or a general protections claim).
Q4) Is it the organisation’s responsibility to provide equipment to work-from-home employees for safe working; for example, a proper computer chair?
An employer has an obligation to ensure the health and safety of its employees whilst they are at work, irrespective of whether the employees are performing their work from the employer’s premises. As part of these obligations, an employer should seek to determine whether the employee’s workspace at home is reasonable, having regard to health and safety risks. This can be by way of a self-audit performed by the employee or another professional attending the work office of the employee.
The Fair Work Commission decision of McKean v Red Energy Pty Ltd (a summary of the case can be found here) involved a work from home employee due to COVID-19 who was denied a request for a desk. The Fair Work Commission found that it was “plainly” reasonable to refuse the provision of a desk as other items had been provided already:
- Online training and resources
- Access to an occupational therapist
- Ergonomic assessment
- Laptop computer
- Headset
- Chair
Although it involved an unfair dismissal claim it is relevant because it focuses on the reasonableness factor by way of:
- Rejection
- Direction
- Refusal
It is important to note the primary duty is to do what is “reasonably practicable” to ensure the health and safety of workers under workplace health and safety legislation. What is reasonably practicable will largely depend on the individual circumstances of the employer.
We also note a good way to keep track of Company assets is to implement a Company asset register. If an employee is allowed to take office equipment (e.g. desks, chairs, phones), they should be required to sign a declaration saying they possess the equipment. This will ensure that all Company property is returned when the employee returns to the workplace.
Please also note workers have a duty under work health and safety laws to take reasonable care for their own health and safety. As such it is a good idea for the business to require the employee to perform an audit and make a declaration that their premises are fit to allow working from home.
This series may be limited. Send your employment questions to editor@www.rmm.onenazmul.dev.
*Legal advice is general in nature. For tailored legal advice specific to your organisation, industry and location, speak to your organisation’s legal advisor.
Send your questions to editor@www.rmm.onenazmul.dev. Jonathan and his team of employment lawyers at NB Lawyers will answer as many as they can and share these answers in Recruitment Marketing Magazine*.