Top workplace myths

Written By: Diana Diaz, Special Counsel, Erin Lynch, Partner and Rocío Jamardo Paradela, Associate at Gadens

In this article, the first of a two-part series, we discuss some common workplace myths and provide clarity on the rights and obligations of employers and employees.

“We pay above the award so our employees are award-free”

Employers often pay award-covered employees an over-award annual salary. However, this does not mean that the award no longer applies. As a general comment, award coverage is determined by assessing an employee’s role in accordance with the classifications contained in a modern award – regardless of the employee’s income.

Employees that are award covered must still be paid at least what they would have been paid under the award, including overtime and penalty rates. Other sections of the award such as breaks and consultation obligations, will continue to apply.

“I can only request a medical certificate if an employee takes sick leave around a weekend or a public holiday”

Employers can request medical evidence, such as a medical certificate, on each occasion that an employee is absent due to an illness or injury, including a single day or part-day absence. Employers can also request evidence if an employee is requesting to take carer’s leave. Employers should also consider their policies when making requests for medical certificates.

“Employees can’t make unfair dismissal claims if they are terminated during the probationary period”

Employment contracts usually set a six-month probationary period to align with the statutory ‘minimum employment period’ that some employees must serve before making an unfair dismissal claim. However, the probationary period and the statutory minimum employment period are separate concepts.

If a longer contractual probationary period applies than the six-month minimum employment period and an employee’s employment is terminated after the statutory minimum employment period, the employee may be eligible to make an unfair dismissal claim.

“You only need to provide policies at induction”

Policy training at induction is important to address inappropriate workplace behaviours, however, it will not always be enough.

Changes to federal anti-discrimination laws recently introduced a ‘positive duty’ requiring employers to take reasonable and proportionate measures to eliminate as far as possible certain conduct in the workplace including sex discrimination and sexual harassment.

Similar considerations apply for employers who wish to avoid being held vicariously liable for employee behaviour such as sexual harassment.

Gadens recommends that policies are provided at induction and all employees are provided with refresher training at least every six months.

“I can make deductions from an employee’s pay”

Generally, under the Fair Work Act (FW Act), employers can only make deductions from an employee’s pay as follows:

• the employee agrees to the deduction in writing, the authorisation specifies the amount of the deduction, and the deduction is principally for the employee’s benefit; or

• the deduction is authorised by or under law, an industrial instrument or an order of a court.

Deductions that are authorised in writing may be withdrawn by the employee in writing at any time.

Even where an employment contract permits deductions from employee pay, a separate written agreement authorising a deduction may be necessary to comply with the FW Act.

A detailed version of this article can be found on Gadens’ website. Subscribers to Gadens’ updates will receive the second part of this series, discussing a further five workplace myths.