From the NECA Workplace Relations Hotline
With more than 200 calls a week from NECA members nationally to our Workplace Relations telephone advice service, our expert advisors cover the full range of day-to-day employment issues.
These questions were recently asked of our Workplace Relations phone advice team
Q One of our employees has presented a certificate issued by a Pharmacist to explain his two day absence on personal leave, do I have to accept this?
A The Fair Work Act 2009 (s107(3)) provides that the employee must, when requested by an employer, give their employer evidence that would satisfy a reasonable person that leave has been taken for the appropriate reason. The Explanatory Memorandum to the Fair Work Bill 2009 states the types of evidence commonly requested are a medical certificate or statutory declaration.
Consequently, evidence other than a medical certificate (such as a certificate from a Pharmacist) may be reasonable in one off or infrequent occurrences of personal leave.
However, in the case of an absence extending beyond a short period or repeated absences on particular days (such as before or after a weekend or public holiday), it may be reasonable for an employer to request a medical certificate issued by a GP.
To avoid ambiguity on this point employers are advised to have a clear leave policy outlining what forms of evidence are required and in what circumstances.
Q One of our employees has broken their foot after kicking a brick wall in frustration. Despite the injury being self-inflicted, is he entitled to workers compensation as the injury occurred at work? If not, would this be paid as personal (sick) leave?
A Under Victorian workers compensation laws a workplace injury is non compensable if it can be proven that the injury was deliberately or wilfully self-inflicted. This applies regardless of whether or not the injury was intended to be inflicted. In the above scenario, if the events can be substantiated it is likely the insurer would have reasonable grounds to decline the claim.
In relation to personal leave, the Fair Work Act does not place any type of restrictions on the type of injury an employee can claim leave for. Similarly, the cause of the injury is not relevant. As such, the employee in the above example would be entitled to personal leave so long as they provide reasonable evidence (e.g.: a medical certificate) that they are unfit for work, and have accrued the appropriate personal leave balance.
Q My Employees are performing distant work, what additional allowances are payable?
A Under the Electrical Award employees performing distant work are entitled to a Living away from home allowance of $495.42 for each week they are away from their residence (a proportional amount is payable if they are away for less than a week). This allowance is not payable in circumstances in which an employer provides employees accommodation free of charge.
Employees on distant work are also entitled to a meal allowance of $15.34 per meal (3 meals per day). This allowance is not payable in circumstances where the employer provides employees with meals free of charge.
Q Are we still required to pass on the 3.5% wage increase prescribed by the Fair Work Commission’s 2018 wage review if we are already paying employees above award rates?
A In the case of employees covered under the Electrical, Electronic & Communications Contracting Award, provisions exist within the award which allow for the absorption of rate increases. Specifically, clause 2.2 reads:
‘The monetary obligations imposed on employers by this award may be absorbed into over award payments. Nothing in this award requires an employer to maintain or increase any over award payment.’
Therefore, as there is no obligation for an employer to increase over award payments, the annual wage review decision would have no effect on employees paid above award rates. Only employees whose wage falls below the updated minimum wage will need to have their rates adjusted.
Note: the above information only applies to award covered employees. Employees of EBA covered employers may have additional obligations to pass on rate rises regardless of employee pay rates.
If you have any IR issues affecting your business, then please contact our expert Workplace Relations team on 1300 NECA IR