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Ever noticed that one employee who keeps chucking a sickie on a Monday or before or after a public holiday (a sneaky move so that they can enjoy a long weekend!)?

While your employee may very well be sick if you believe they’re being dishonest, what can you do as an employer? If you receive that inevitable call on Monday or Friday morning, here are some tips to help you understand your employer rights and obligations.

When can an employee take sick leave?

 Employees may take paid personal or carer’s leave where the employee is:

1. Not fit for work because of a personal illness, or personal injury, affecting the employee; or
2. Required to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household because of a personal illness or injury affecting the member or because of an unexpected emergency affecting the member.

What notice is an employee required to provide?

 An employee taking paid personal or carer’s leave must advise you of the period, or expected period, of the leave as soon as practicable. This may be as simple as a phone call, SMS or email informing you that they will not be attending work either because they are unfit for work or because they are required to provide care and support to a member of their immediate family/household.

When providing notice of their absence, employee’s must comply with any company policies or procedures when calling in sick. For example, some employers may have a policy that states that employees must call, rather than sending a text message.

How can you stop workers chucking a sickie?

 While some employees may take the opportunity to score themselves a long weekend, employers should be aware of their ability to request evidence for any of these ‘sick days’. Employees who are game enough to enjoy a four-day weekend need to be able to prove that they are absent for a legitimate reason.

Employers may require the employee to produce evidence that would satisfy a reasonable purpose that the leave is being taken for a permissible occasion – that is, the leave is taken for one of the reasons outlined above.

Employers should implement a clear policy in relation to employees taking paid personal / carer’s leave, including how they are expected to inform the workplace and any evidence they are required to provide.

What can you do if your employee goes on a bender?

 It’s no surprise that you probably have some concern for the day after a public holiday or possibility even the weekend. Just like any other day when an employee is chucking a sickie, you have the right to request medical evidence that the employee was absent for a legitimate reason. Whether a doctor will provide a medical certificate to an employee who is hungover or not is ultimately a call for a qualified practitioner.

If you have any doubts over any medical certificates provided, you may seek further clarification from the doctor who signed it.

 

Industryus HR offers smart advice and strategies for employers to assist them in managing difficult employment situations. We offer flexible options and also payment plans to approved businesses.

 

Get in touch to arrange a free and confidential introductory call. 

Call 07 5655 4047 or email hello@industryus.com.au.

 

We are looking back at the 2020 Fair Work Commission Unfair Dismissal case, Angele Chandler v Bed Bath N’ Table Pty Ltd, which highlighted key issues relating to unfair dismissal for casuals along with the importance of due process.

The case determined that despite a valid reason for Chandler’s termination existing, the company’s incompetent National HR Manager had contributed to bungling the employee’s sacking, resulting in it being unreasonable. Say what?!!

In an earlier hearing before the Commission, arguments were heard regarding whether a casual employee could claim unfair dismissal. This particular summary can be found here.

The HR Manager’s bungled termination 

In this particular case, the Commission found that the National HR Manager was “incompetent in respect of her ability to deal with the termination of an employee”. In an overall messy process, the National HR Manager relied on a number of invalid justifications for terminating the employee, while avoiding due process for another allegation which was, in fact, a valid reason for dismissal.  Therefore, despite a valid allegation existing for a termination, the National HR Manager failed to allow the employee to respond to it, and therefore the dismissal was deemed unreasonable.

What does this mean for employers? 

Ensuring that due process is followed during disciplinary and termination processes is critical to the employer’s ability to defend an unfair dismissal claim, even where there is a valid reason for a termination. Therefore employers should carry out the correct process each and every time. It is also extremely important to check the credentials of your appointed HR resource. They should have abundant recent experience in handling disciplinary and termination matters – this goes for both internal and outsourced providers. If they don’t stack up, we recommend engaging a specialist.

Casuals and unfair dismissal

Despite initial debates in the Commission as to whether Chandler could claim unfair dismissal as a casual employee, the Fair Work Commission determined that even though the employee had been classified as a casual by the employer, the employee was entitled to claim as they had been employed continually for over six months. In coming to this decision, the Commission considered the employee’s rosters, the ongoing contract of employment, and whether the employee had an expectation of ongoing employment and ultimately decided the employment was regular and systemic.

What does this mean for employers? 

Essentially, this case further clarified the current stance on how casual employment is to be handled by the Commission and could mean that more casuals may be entitled to make unfair dismissal claims in the future.

Despite this decision, we are keeping a close eye on possible upcoming reforms for casual employees.

Get in touch with the team at Industryus if you would like to find out more about how we can support your organisation.

On Tuesday 9^th December 2020 the Morrison government tabled their new industrial relations bill in the senate.

Prior to this, on 26 May 2020, the Prime Minister the Hon. Scott Morrison MP announced the Australian Government’s JobMaker plan. Part of this plan was to explore reforms to the industrial relations (IR) system to regrow jobs lost in the COVID-19 pandemic.

Since June, the Attorney-General and Minister for Industrial Relations, Christian Porter, has led the IR reform working group process bringing together employers, industry groups, employee representatives and government to chart a practical reform agenda. Five working groups were established to discuss potential solutions to key issues within Australia’s industrial relations system.

The five working groups:

1. The Casuals and fixed-term employees working group.
2. The Award Simplification working group
3. The Enterprise Agreements working group
4. The Compliance and Enforcement working group
5. The Greenfields Agreements working group.

 

The Industrial Relations Bill 

According to the government, The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 supports the government’s commitment to Australia’s jobs and economic recovery, by:

• providing certainty to businesses and employees about casual employment;
• giving regular casual employees a statutory pathway to ongoing employment by including a casual conversion entitlement in the National Employment Standards (NES) of the Fair Work Act;
• extending two temporary JobKeeper flexibilities to businesses, in identified industries significantly impacted by the pandemic;
• giving employers the confidence to offer part-time employment and additional hours to employees, promoting flexibility and efficiency;
• streamlining and improving the enterprise agreement making and approval process to encourage participation in collective bargaining;
• ensuring industrial instruments do not transfer where an employee transfers between associated entities at the employee’s initiative;
• providing greater certainty for investors, employers and employees by allowing the nominal life of greenfields agreements made in relation to the construction of a major project to be extended;
• strengthening the Fair Work Act compliance and enforcement framework to address wage underpayments, ensure businesses have the confidence to hire and ensure employees receive their correct entitlements; and
• introducing measures to support more efficient Fair Work Commission (FWC) processes.

Below is a breakdown of the key issues. 

Casual and fixed-term employees

The Industrial Relations bill introduces, for the first time, a statutory definition of a casual employee that focuses on the offer and acceptance of employment and draws on common law principles. 

The Bill is intended to prevent unfair outcomes in situations where employers have to pay an employee twice for the same entitlement. In the event that an ongoing employee is misclassified as casual, the Bill enables casual loading amounts to be offset against claims for leave and other entitlements in certain circumstances, to address any potential for ‘double-dipping’ when recognising the employee’s correct classification.

The Bill introduces a statutory obligation for employers to offer casual staff conversion to full or part-time employment after 12 months unless there are reasonable business grounds not to do so. The Bill also requires casual employees to be provided with a Casual Employment Information Statement published by the Fair Work Ombudsman (FWO).

The Bill introduces part-time flexibility provisions This will enable employers and employees to work together to agree additional hours of work to part-time employees who already work at least 16 hours per week, to be paid at ordinary rates of pay.  Currently, under many awards, the only way a part‑time employee can work additional hours at ordinary rates of pay is to formally alter the regular pattern of hours. An ad hoc arrangement to work additional hours may attract overtime rates – even if an employee volunteers to work those additional hours.

Award simplification

To ensure flexibility for employers, especially small businesses in distressed sectors, the Bill will extend existing JobKeeper flexibilities in the Fair Work Act concerning duties and location of work to employers and employees to whom identified modern awards apply. These flexibilities, with appropriate employee safeguards, will be available for a period of 2 years from the passage of the Bill.

Enterprise and greenfield agreements

The Fair Work Commission (FWC) will no longer be required to be satisfied that the terms of an enterprise agreement do not exclude the safety net provided by the National Employment Standards (NES) and instead, the agreement must include a term which explains the interaction between the NES and enterprise agreements. The Fair Work Commission will also be required to approve agreements, as far as practicable within 21 working days.  

The process for assessment of enterprise agreements against modern awards will also be clarified by requiring the FWC, in applying the better off overall test (BOOT), to:

• only take into account patterns or kinds of work, or types of employment, that are currently engaged in or are reasonably foreseeable, not those that are hypothetical or not reasonably foreseeable;
• have regard to the overall benefits (including non-monetary benefits) employees would receive under the agreement compared to a relevant modern award; and
• have regard to any views relating to whether the agreement passes the BOOT expressed by employers and employees and their bargaining representatives.

The Bill will also enable the FWC to approve longer-term greenfield agreements which are a form of enterprise agreement used by new enterprises before they recruit any staff.

Greenfield agreements are commonly used in project-based industries, such as mining and construction. Under the legislation, greenfield agreements made in relation to the construction of a major project, are to specify a nominal expiry date of up to eight years after the day the agreement comes into operation. Where the greenfields agreement specifies a nominal expiry date more than four years after the day on which the FWC approves the agreement, the agreement must include a term that provides for annual pay increases for the nominal life of the agreement.  

 

Compliance and enforcement

This Bill enhances the Fair Work Act compliance and enforcement framework to more effectively deter non-compliance with workplace laws and make it easier to recover wages when underpayment does occur.

To better deter non-compliance, the Bill introduces a new criminal offence for dishonest and systematic wage underpayments and increases the value and scope of civil penalties and orders that can be imposed for non‑compliance.

 

Fair Work Commission

The Bill includes measures to support more efficient FWC processes, to enable the FWC to:

• deal with appeals ‘on the papers’ where appropriate;
• vary or revoke decisions relating to enterprise agreements and workplace determinations more easily, to correct minor errors; and
• deal more effectively with unmeritorious applications.

These measures will enable the FWC to deal with matters more expeditiously and promote effective allocation of its resources.

 

Further review of Modern Awards in distressed industries

In addition to the Industrial Relations bill, Christian Porter has released a letter in which he has requested the FWC conduct a review of modern awards in distressed industries. Mr Porter said that stakeholders have identified two changes the commission could (and should) make separate to the IR legislation:

• To simplify pay arrangements by allowing “loaded rates” – for employers to pay employees a higher base rate of pay instead of penalty rates, on an opt-in basis so that workers are not financially worse off; and
• To streamline classifications so that workers in retail, hospitality, restaurants, and registered clubs are not paid many different rates of pay based on their duties

 

Next steps for the Industrial Relations Bill

There will be months of discussion on the Bill, so it’s likely that decisions on the key areas won’t be made until well into 2021. 

 

The full bill can be assessed here. 

 

If you need human resources advice, consider the Industryus Membership. We offer a tailored HR solution according to the level of support needed. Call us on 07 5655 4047 or go online and book in a Free Introductory Session at our Gold Coast office or via Zoom. 

 

Do you employ casual workers?

If you do, you should keep reading… A decision has recently been made by the Fair Work Commission that overtime for casuals should be calculated using the casual ordinary rate (inclusive of the 25% casual loading). This ruling comes as part of the four yearly review of Modern Awards.

Summary of the changes

• New overtime penalty rates for casual employees will be inserted into 97 Modern Awards.
• These changes will take effect from 1 March 2021 for the Aged Care Award and 20 November 2020 for all other affected Modern Awards.
• The changes will not impact enterprise agreements that operate to the exclusion of a Modern Award; however, they will apply to businesses covered by enterprise agreements that incorporate or are read in conjunction with the terms of a Modern Award.

Where your business utilises casuals you should check the requirement to pay overtime. Keep in mind, there may be other circumstances apart from working over 38 hours per week that overtime for casuals may apply. Modern award rate tables will be updated in due course.

The full decision can be found here.

If you need ongoing HR support, consider booking a Free Introductory Call with Industryus, to find out more about our support options. Or call our friendly team on 07 5655 4047.

Wage Theft laws in Queensland

 On 15 July 2020, the Queensland Labor Government introduced legislation to criminalise wage theft. QLD joins Victoria who already implemented wage theft laws, also in 2020.

Wage theft has been a big topic in the media this year and appears to be high on the Fair Work Ombudsman’s target list.

Following an inquiry into wage theft in Queensland and recommendations from the final report, the Palaszczuk Government has introduced the Criminal Code and Other Legislation (Wage Theft) Amendment Bill 2020 (Bill) targeting employers who commit serious and deliberate wage theft. Wage theft is widespread, affecting around 437,000 (approximately one in five) Queensland workers each year and costing more than $1 billion every year in unpaid or underpaid wages. In addition, the annual loss associated with the underpayment or non-payment of superannuation was estimated at $1.12 billion.

Criminal offence

The Bill will amend the Queensland Criminal Code definition of stealing to provide an offence against an employer who intentionally fails to make payment of wages or entitlements when it becomes payable to their employee. Wage theft offences will attract maximum penalties of up 10 years’ jail for employers and a fine of up to $991,320 for corporations.

The Bill will also increase the maximum penalty for the offence of fraud relating to wage theft. Employers who defraud their workers will face up to 14 years’ in prison.

Wage recovery claims to be heard by Industrial Magistrates Court

The new legislation will also create a simple, quick and low-cost wage recovery process for Queenslanders who suffer underpayment of their wages. Civil claims for unpaid wages up to $20,000 will be pursued in the Industrial Magistrates Court.

The Bill also provides a wage recovery process for claims brought by State system employees under the IR Act, including the recovery of unpaid wages and superannuation. Again, the intention is to facilitate a low-cost resolution between the parties, with conciliation being the first step, unless a party elects otherwise.

The legislation is not intended to capture employers who act honestly, its purpose is to capture employers who intentionally fail to pay employees and demonstrate an intent to deprive staff. The new system is much simpler and less costly for workers trying to recover entitlements. Previously many workers gave up because the process was too complex and time-consuming.

What is Wage Theft?

Wage theft takes many forms including:

• the underpayment of wages;
• unpaid superannuation;
• unpaid penalty rates;
• unauthorised deductions from pays;
• the misuse of ABNs; and
• sham contracting.

 

What can employers do to prepare?

Due to the complexity of modern industrial obligations, it is perhaps not surprising that payroll errors are made. In our experience, most underpayments are a result of administrative error or a shortcoming in the payroll system, rather than any deliberate attempt to underpay employees.

If you are concerned that there might be errors in your payroll system (including a lack of expertise), it is important to consider how you might best prepare for an audit of your system. A well-prepared audit provides employers with accurate information to establish the extent of any errors, and how to rectify them.

The information above is general, and therefore Industryus recommends that employers seek advice from an employment relations expert about your specific situation prior to taking any action.

Industryus HR offers a wage audit service, for employers who wish to have their payrolls checked to ensure compliance. The process is simple and requires very little interruption to your day to day operations.

Our advice membership also enables employers to contact an experienced HR consultant to discuss wage matters, whenever they may crop up, and in particular before they become an issue. Give our Gold Coast head office a call on 07 5655 4047 for more information on a tailored membership for your organisation.

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From 1 July 2020 eligible employees can split their Parental Leave Pay (PLP) so they can take it over 2 periods within 2 years. The changes give employees more choice about how and when they take their Parental Leave Pay.

This change will affect employees with a child born or adopted on or after this date. As an employer, you’ll still need to provide Parental Leave Pay to eligible employees on behalf of the Australian Government.

So, what are the changes?

Your employees may still get up to 18 weeks, 90 payable days of PLP. However, from 1 July 2020, PLP will be available as:

• a Paid Parental Leave period of up to 12 weeks which is 60 payable days
• 30 Flexible Paid Parental Leave days.

Therefore, employees can claim PLP for 1 set period and 1 flexible period. Previously employees could only use Paid Parental Leave as one continuous 18-week period.

Employees can still get their PLP in a single continuous 18-week block. To do this, the 12 week Paid Parental Leave period will be connected to the 30 Flexible Paid Parental Leave days.

Alternatively, an employee can choose a shorter block of between 12 and 18 weeks. They can then take the remaining Flexible Paid Parental Leave days at a later time, when it suits them. The flexible period:

• Is up to 30 days
• Usually starts after the first period has ended
• Can be used in flexible periods negotiated between the employee and employer
• Has to be used within 24 months of a child’s birth or adoption.

Using flexible Parental Leave Pay

Employees who want to use flexible Parental Leave Pay when they return to work from parental leave need to come to an agreement with their employer about how it will work in their circumstances. Employees and employers can consider:

• Reducing the hours or days of work
• Changing the pattern of work
• Taking additional unpaid leave.

An employee’s unpaid parental leave ends when they return to work, even if they are working less or different hours than they used to.

What do employee’s need to do?

Employees can now choose how and when they would like to get PLP and they’ll be able to do this from 14 September 2020.

From 14 September Services Australia will use the employee’s child’s date of birth to work out if the changes will affect them. Services Australia will send affected employees more information if both of the following apply:

• the changes affect them
• they claim Parental Leave Pay before 14 September.

This will advise employees how they can manage their Flexible Paid Parental Leave days.

From 14 September, Service Australia will ask the following if employees claim Parental Leave Pay:

• how they want to get their Flexible Paid Parental Leave days
• when they want to get their Flexible Paid Parental Leave days.

Payment of the Parental Leave Pay Scheme

There haven’t been any changes to how PLP is paid. In most cases, PLP payments are made to the employer who then pays the employee. If you need to provide Parental Leave Pay to an eligible employee, the Government will continue to provide the funds to you. Just like they do now. The Government will also tell you how long you need to pay the employee. You won’t need to make any special changes to the way you currently provide the funds.

 

Industryus HR is a Gold Coast based human resources agency, providing support to established small and medium organisations who wish to outsource their HR. We service all locations. If you would like to speak with one of our experienced HR Consultants, we offer a Free Introductory Call to get you started. Book here, or call 07 5655 4047. 

Worker’s compensation injury reporting laws have recently changed in Queensland, bringing them closer to the requirements of New South Wales.

All Queensland employers now must report injuries sustained by workers to their worker’s compensation insurer where the injury may be compensable. For most Queensland employers, your worker’s compensation insurer is WorkCover.

Q. What do these new injury reporting laws mean for Queensland employers?

All employers must report work-related injuries to their insurer if:

• a worker sustains an injury (personal injury, disease, aggravation of a personal injury, disease or medical condition, loss of hearing or death); and
• you are aware of the injury; and
• the injury may be compensable. An injury may be compensable when you and/or a worker reasonably believes:(i) the injury has arisen out of, or in the course of employment; and

  (ii) the injury will require medical treatment resulting in the issue of a medical certificate or will require the worker to have time off work (beyond the day of sustaining the injury) or time away from their normal duties to recover from the injury. 

Any injury sustained by a worker needs to be reported to your insurer within 8 business days after becoming aware of the injury.

The relevant worker also needs to be notified of their right to lodge a worker’s compensation claim and should be provided with an Application for Compensation form.

 

Q. Do I need to report every injury that falls into the above criteria?

Yes. While it may seem onerous, if you fail to report a workplace injury (as described above) via the relevant process, you are in breach of the laws and can be fined up to $5750 for each breach. You also need to report even if the worker doesn’t intend to make a claim.

 

Q. I don’t agree that my employee suffered a work-related injury. Do I still need to report it?

Yes. Regardless of your views on whether the employee suffered a work-related injury, if the situation fits the criteria above, it needs to be reported within 8 business days.

 

Q. I’m hesitant to notify my employee of their right to lodge a worker’s compensation claim as surely this will increase the chances of them claiming more than is necessary. Is there a way around this requirement?

The new legislation is clear on the requirement that an employer must notify a worker of their right to access worker’s compensation and provide them with the appropriate claim form, where the situation fits the above criteria. Employers who fail to follow the rules risk being penalised.

Industryus HR understands that these obligations are a further administrative burden on your business. If you need assistance with advice or administrative support for reporting an injury, we can manage these new obligations on your behalf. Call us on 07 5655 4047 for more info. 

No doubt you may have heard a lot in the media recently about the new laws for casuals. And, it may seem a bit overwhelming at times as there is so much information and sometimes it can seem a bit sensationalised. In this three minute read, Industryus has done the hard work and summarised the important bits for you.

 

Where did all this casual talk suddenly come from?

The court case which has caused the recent attention on casual employment was Workpac v Rossato. While the matter was heard in the Federal Court about 12 months ago, the 250 odd page decision took until late May 2020 to be finalised. That is one big read!

As you can imagine with anything of this size, it is complex. We are sure you don’t have any interest (or time for that matter) to read through it. So, to make it simple here is a very quick summary of how the new laws for casuals came about. 

The recent Workpac v Rossato decision re-affirmed the 2018 Workpac v Skene decision which found that some casual workers might be able to ‘double-dip’ (receive a casual loading plus be entitled to paid leave like a permanent employee receives). What is significant however about Workpac v Rossato is that the decision contradicts new government regulations introduced to stamp out the right to double-dip in casual employment. Essentially the Workpac v Rossato case means that the new regulations are useless and in certain situations where casuals are employed regularly and systemically they could be entitled to paid leave – even when they are receiving a loaded rate of pay. 

Does the Workpac v Rossato decision mean that all casuals will automatically be entitled to back payments of leave or offers of permanent work?

No. You may have heard in the media that future legislation could be introduced to correct this decision made by the courts. This is true, but we don’t know exactly when this may happen. Therefore, as it currently stands, the decision made in Workpac v Rossato is currently the law and employers need to be mindful about how casuals are engaged, or they could risk back payment claims being made by casual employees.  

We don’t think that employers need to panic, however. Rather, employers should carefully review their casual workforce to get an understanding of how casuals are engaged and work on strategies that will reduce the organisation’s exposure to underpayment claims from casuals or breaches of Fair Work rules. If you are concerned about or unsure whether casual obligations are being properly met, we recommend engaging a professional to work through it all with you. Rectifying issues now will place your organisation in the best position to defend any future claims.

What should employers do? 

• Ensure the casual conversion obligations in the relevant modern award are adhered to. 
• Review your casual workforce and consider which employees might be regular and systemic and could be offered permanent employment. Follow casual conversion rules in this regard. 
• Implement quality employment contracts for all casual employees so that your business is in a defensible position.
• Ensure your casual employees are treated as such. E.g. casuals will have no firm expectation of future shifts/work, and generally have more control over when they work.  

How to get help regarding the new laws for casuals

The information above is general guidance. Industryus HR strongly recommends employers seek advice from an employment relations professional to implement the steps required for better compliance with the new laws for casuals.  

Don’t hesitate to organise a Free Introductory Call to find out how we can help.  

With the Australian government now planning the way out of COVID-19 restrictions, there has been some talk of businesses reopening and this means the return to work at some stage for employees. While we have seen some businesses reopen now that JobKeeper payments have commenced, many still remain closed. Which means that for many employers it’s an opportune time to start thinking about preparing the workplace and preparing for situations that might arise in those first few weeks.

For some employers, the return of employees to work will be a smooth transition. For others there may be situations that arise which have never been dealt with before – as let’s face it, COVID-19 is new to everyone!

As HR Consultants dealing with established SME workplaces, we are starting to get a lot of questions about a post-COVID-19 world. Questions such as how do I ensure my workplace is safe? What happens if my stood down employee doesn’t want to come back to work now that they are receiving JobKeeper? What if my employee asks to work from the home long term? Many of our clients express initial anxiety about such scenarios, but the reassuring thing is that there really is an easy solution for each question.  Sometimes you might just need someone experienced in these situations to speak to and guide you through a logical process.

Let’s address these three common questions about returning to work following COVID-19.

1. How can I ensure my workplace is safe for employees to return to work to, following COVID-19 restrictions?

To meet their obligations, employers should take all reasonable steps to ensure a safe workplace. Simply placing some sanitiser out is not enough. Employers should be deliberate in taking steps to ensure risk is minimised. Some examples of what employers should be doing are:

• Ensuring any public health directions and suggestions from official sources such as www.health.gov.au or your state health authority are strictly followed.
• Putting in place control measures to stop the spread of COVID-19 such as making soaps and hand sanitizers readily available, regularly disinfecting surfaces, and promoting good hygiene practices for employees, contractors and customers.
• Implementing spatial barriers such as moving work stations to adhere to physical distancing rules, systems for ensuring physical contact is reduced, and where appropriate installing screen shields to protect in high customer contact roles.
• Introducing technology to the workplace which promotes distanced social and work communication, and which reduces the need for as many face to face meetings. E.g. Zoom, Workplace by Facebook, Slack etc.
• Talking to staff about employee obligations to adhere to workplace health and safety rules, and monitoring and encouraging the rules throughout this pandemic period.

2. What happens where my stood down employee doesn’t want to come back to work now that they are receiving JobKeeper?

 The first thing to ascertain in this situation is the reason/reasons your employee doesn’t want to return to work following a stand down. Is it simply because they are enjoying their newfound freedom or is there a deeper issue that needs to be investigated such as a genuine safety concern about returning to work?

If there is no genuine reason for not wanting to return to work following the stand down, the employer is able to direct the employee to return to work where the direction is lawful and reasonable, and it doesn’t expose the employee to risk. Where the employee refuses following the direction, the employee may be able to consider addressing the issue in accordance with usual disciplinary processes.

Where an employee has provided genuine reasons relating to their health and/or safety and has refused to attend work, it is more complex. Generally, where the employer has taken all reasonable steps to ensure the workplace is safe, the employee should not refuse to return to work. However, we strongly recommend speaking to an employment relations specialist to work through the specific situation with you, as it will depend on the circumstances. There are a number of protections for employees under various legislation, particularly in relation to health and safety. Therefore, to avoid breaching your obligations it’s better to seek advice prior to acting.

3. What happens if my employee wants to work from the home long term?

COVID-19 has changed the way many of us work. It has also changed many of our attitudes to working from home – for both employees and employers!

Our HR Consultants have heard many stories of employees loving the flexibility of working from home. In contrast, there are also many employees who cannot wait to get back to the structure and social connection that physically attending a work site offers.

The majority of employers we have spoken to have embraced working from home arrangements, with a strong desire to keep their employees safe and their businesses as operational as possible. There have even been some employers who are considering implementing permanent work from home requirements for staff as a potential cost-saving strategy for the future. I.e. smaller premises required.

Due to COVID-19 arrangements, it is likely that employers will soon see a rise in requests to work from home, whether it be full time or for a few days per week. Whatever the case, we recommend that employers get on the front foot about flexible working arrangements so that there is a clear and consistent message and process being followed. The best way to do this is via a Flexible Work Policy, which outlines how flexible work requests are handled in your workplace. Where inconsistent and unlawful decisions are made, discrimination-related claims from employees become more likely.

In regard to your flexible work policy, keep in mind that it should align with Fair Work laws, so it is recommended that your policy is drafted by an employment law expert so that you can be assured your policy meets these obligations.

Once your Flexible Work Policy is in place and communicated, leaders will be in a better position to confidently handle requests. Employers shouldn’t be afraid that because an employee worked from home during the pandemic that they will have absolute rights to work from home in the future. This is simply untrue. However, employers will need to work through requests and consider their policy and any flexible work laws that may apply. We also recommend arrangements are always placed in writing.

Keep in mind that the best outcomes are often those where the employee and the employer decide to meet in the middle. Flexible work can look like many things – reduced hours, condensed hours, earlier starts with earlier finishes or working from home 1-2 days per week to name a few. It is well documented that flexible work improves work satisfaction, which in turn improves workplace productivity. Therefore, now employers having firsthand knowledge that flexible work can work, it might be the right time to relax antiquated attitudes about the 9am-5pm work week and implement some flexibility for employees.

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*This article is not intended to be advice. We recommend employers seek specific advice for their situation from an employment relations expert.

Industryus HR is a specialist human resources agency, providing employment relations advice and support to established small and medium-sized organisations. If your organisation needs assistance with advice or drafting a Flexible Work Policy, head online to arrange a free 30 minute Introductory Call.

Or call us on 07 5655 4047.