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Busting HR Myths
David Bates BA(Govt), LL.B(Hons)
Managing Director
Introducing Workforce Guardian
Workforce Guardian is Australia's leading HR
and employment relations service for employers
Introducing Workforce Guardian
Australia has the
world’s most complex
employment laws…
Jill
&
Bob
Let’s Bust Some HR Myths!
Myth 1:
Paid Leave Doesn’t Accrue From Day One
Myth 1
Paid annual leave and paid personal/carer’s leave are two
of the ten…..?
Myth 1
Paid annual leave and paid personal/carer’s leave are two
of the ten National Employment Standards (NES)
Myth 1
Paid annual leave and paid personal/carer’s leave are two
of the ten National Employment Standards (NES)
10 minimum terms and conditions
Apply to all ‘National System Employees’
Compliance is mandatory
The NES cannot be ‘bargained away’ or reduced by
‘mutual agreement’
14
Myth 1
National Employment Standards
Maximum Hours of Ordinary Work Requests for Flexible Working
Arrangements
Annual Leave
Personal/Carer’s and
Compassionate Leave Community Service Leave
Long Service Leave Public Holidays
Notice of Termination and
Redundancy PayFair Work Information Statements
Parental Leave and Related
Entitlements
Myth 1
Personal Leave
Jill and Bob hire Katie
After working for one month, Katie calls in sick for 4 days
Jill and Bob tell Katie she can’t take any paid sick leave
during her first three months of employment
Myth 1
Personal Leave
Jill and Bob hire Katie
After working for one month, Katie calls in sick for 4 days
Jill and Bob tell Katie she can’t take any paid sick leave
during her first three months of employment
Is this ok?
Myth 1
Personal Leave
Jill and Bob hire Katie
After working for one month, Katie calls in sick for 4 days
Jill and Bob tell Katie she can’t take any paid sick leave
during her first three months of employment
No, it’s a breach of the Fair Work Act 2009
Myth 1
Maximum penalty:
Myth 1
Maximum penalty:
$54,000
Myth 1
Other NES-related myths:
Casuals don’t accrue long service leave
Leave loading doesn’t get added to payouts of unused
annual leave
Employers can only ask for medical certificates if two or
more days are taken off work
Sick leave can be taken for any condition
Myth 2:
Casuals Must be
Made Permanent After 12 Months
Myth 2
The definitions of permanent part-time, permanent full-
time, and casual employment come from…?
Myth 2
The definitions of permanent part-time, permanent full-
time, and casual employment come from Modern Awards
Myth 2
The definitions of permanent part-time, permanent full-
time, and casual employment come from Modern Awards
These are legal documents containing minimum terms
and conditions for particular industries and occupations
Awards build on top of the NES
There are more than 120!
Myth 2
Awards provide additional entitlements such as:
Penalty rates
Overtime rates
Allowances
Span of working hours
They may also provide more generous NES-related
entitlements to employees
Myth 2
Modern Awards apply as a matter of law and not choice
or preference
Will apply to employees who fall within their coverage and
classifications
Most employees are covered by a Modern Award
May require casual employees to be offered conversion to
permanent employment
Myth 2
Casual or Part-Time?
Ben works the same few days each week
He works around 20 hours each week
Is Ben a casual or part-time employee?
Myth 2
Casual or Part-Time?
These employment categories are specifically defined in
each Award
Casuals must receive the 25% loading
Part-Time employees must usually have a written agreement
regarding days and hours and start and finish times
Myth 2
Other Modern Award-related myths:
Paying above the Award rate means the Award no longer
really matters
Salaried employees aren’t covered by Modern Awards
Employers and employees can agree to waive Award-
related entitlements / obligations
Myth 3:
Payroll Deductions are Perfectly Fine
Myth 3
Virtually all non-tax deductions taken directly from an
employee’s wage or salary payments are unlawful
Deductions must be:
1. Principally for the employee’s benefit, or
2. Expressly permitted by law
Myth 3
Luke finds dealing with customers very ‘stressful’
He takes 2 months’ off work on personal leave
He says he’s too sick to return his keys to the shop and
he won’t take Jill or Bob’s phone calls
Myth 3
Jill and Bob need to change the locks
They deduct the cost ($200) from Luke’s next pay…
Myth 3
Jill and Bob need to change the locks
They deduct the cost ($200) from Luke’s next pay…
Can they do this?
Myth 3
Jill and Bob need to change the locks
They deduct the cost ($200) from Luke’s next pay…
No: maximum penalty of $54,000
Myth 3
Jill and Bob need to change the locks
They deduct the cost ($200) from Luke’s next pay…
No: maximum penalty of $54,000
What if Jill and Bob had a written and signed agreement
with Luke giving them permission to make the deduction?
Myth 3
Jill and Bob need to change the locks
They deduct the cost ($200) from Luke’s next pay…
No: maximum penalty of $54,000
What if Jill and Bob had a written and signed agreement
with Luke giving them permission to make the deduction?
Maximum penalty is still $54,000!
Myth 3
Other Unlawful Deductions:
Till shortages
Lost company property
Loans
Leave provided in advance
Recovery of overpayments*
Myth 3
Overpayments can be recovered via future payroll
deductions if - and only if:
1. Employee is offered multiple options, and
2. Agreement is reasonable, and
3. Agreement is recorded in writing
Myth 4:
Three Written
Warnings Before Firing
Myth 4
The rules about dismissals are found in the Fair Work
Act 2009
There are now over 20,000 ‘unfair dismissal’ claims each
year
A dismissal is ‘unfair’ if it is either:
a) a non-genuine redundancy, or
b) harsh, unjust, or unreasonable
Myth 4
Myth 4
Dismissal process must be ‘reasonable’
Poor performance/misconduct: dismissal with notice
after at least one final warning
Serious misconduct: dismissal without notice
Myth 4
Kirsten has been working for Jill
and Bob for over a year
Jill and Bob know she’s a thief
Evidence has been obtained from CCTV and witnesses
They send Kirsten a letter telling her they know she’s
been stealing and has been dismissed for serious
misconduct
Myth 4
Kirsten has been working for Jill
and Bob for over a year
Jill and Bob know she’s a thief
Evidence has been obtained from CCTV and witnesses
They send Kirsten a letter telling her they know she’s
been stealing and has been dismissed for serious
misconduct
Is this lawful?
Myth 4
Kirsten has been working for Jill
and Bob for over a year
Jill and Bob know she’s a thief
Evidence has been obtained from CCTV and witnesses
They send Kirsten a letter telling her they know she’s
been stealing and has been dismissed for serious
misconduct
No
Myth 4
Unfair Dismissal:
Proper process has not been followed: must provide an
opportunity to respond before final decision confirmed
Kirsten lodges an unfair dismissal claim
No settlement reached at conciliation despite prompting
from the conciliator
Myth 4
Unfair Dismissal:
Proper process has not been followed: must provide an
opportunity to respond before final decision confirmed
Kirsten lodges an unfair dismissal claim
No settlement reached at conciliation despite prompting
from the conciliator
Penalty?
Myth 4
Proper process has not been followed: must provide an
opportunity to respond before final decision confirmed
Kirsten lodges an unfair dismissal claim
No settlement reached at conciliation despite prompting
from the conciliator
Penalty: Possible reinstatement and back-payment
Myth 4
Other Dismissal-related myths:
Employers have to offer a ‘support person’
The laws are the same for all businesses
Employees can be dismissed without notice during
probationary periods
Employers have to provide references
Q&A
Workforce Guardian HR Solutions
A Workforce Guardian Presentation
© 2015
All information is general advice only and does not constitute legal advice
www.workforceguardian.com.au