A word from David Bates, our specialist employee relations partner.
During the first few months of this year, the Workforce Guardian team travelled around Australia with a number of our partners attending conferences and speaking events from Broome to Brisbane and from Cairns to Kalgoorlie.
This month, we thought we'd compile a handy summary of the top five HR FAQs we encountered during our recent travels:
Q1: Can I 'cash-out' annual leave for employees during the course of their continuing employment?
A: The answer to this question depends on whether the employee in question is covered by a Modern Award. If they are, cashing-out of annual leave is only allowed if the Modern Award expressly permits it. If it doesn't, cashing-out will be unlawful and penalties of up to $51,000 may be imposed if you proceed, even if the cashing-out is requested by your employee.
If your employee is 'Award-free', cashing-out of annual leave is allowed, but the employee must have a remaining annual leave balance of no less than 4 weeks at all times and the agreement to cash-out must be recorded in writing. Also, the employee must receive the same amount that he or she would have received had the leave been taken – so amounts such as 'leave loading' (if it would normally have been payable) must be included in the payment.
Q2: Can I dismiss someone without notice during their 'probationary period'?
A: Yes, but only if the employee is being dismissed for 'serious misconduct', which includes things like stealing and engaging in – or threatening – workplace violence. In all other cases, a minimum period of one weeks' notice in writing (or payment in lieu of notice) must be provided whenever an employee is dismissed during their first 12 months of employment, regardless of whether they are still within their 'probationary period'. Importantly, some Modern Awards actually impose longer minimum notice periods, so these should also be checked before an employee is dismissed.
It's worth noting that the Fair Work Act 2009 does not actually recognise the concept of 'probationary periods'. Instead, the Act simply says that an employee is not protected from unfair dismissal until they have completed the applicable 'minimum period of notice'. For businesses with fewer than 15 employees, that's 12 months. For all other businesses, it's 6 months.
For the rest of the questions listed below,read the full article.
Q3: Are employees who take time off to see their GP or have a dental check-up entitled to access paid personal leave?
Q4: If an employee takes parental leave and then comes back to their job on a part-time basis, can they later force me to restore them to full-time employment?
Q5: Can I make deductions from an employee's pay for things such as lost Company property?