Fair Work Act helps fix Sick Leave Anomaly
You are here:There are some overall positives arising out of the introduction of the Fair Work Act and the NES in particular.
One area where the NES is a major improvement over the NES is in the area of personal leave - or sick leave as it used to be called. Under most 'pre-reform' awards (i.e. the awards that existed prior to Work Choices), there had been a general requirement to prove to the employer's reasonable satisfaction that they had in fact been unable to attend work due to the illness or injury.
Work Choices Rules on Medical Certificates
Under Work Choices, employers appeared practically obliged to pay sick leave to an employee who produced a valid medical certificate from a registered health practitioner, or a statutory declaration where it was not reasonably practicable for the employee to give the employer a medical certificate, even if the employer had good reasons to doubt the employee's reasons for being absent. The medical certificate simply needed to state that in the registered health practitioner’s opinion, the employee was, is, or will be unfit for work during the period because of a personal illness or injury; or if the required document is a statutory declaration—the employee was, is, or will be unfit for work during the period because of a personal illness or injury.
Also under the Work Choices regulations, a medical certificate issued by a registered health practitioner was taken to be a medical certificate if it was issued in respect of the area of practice in which the practitioner was registered or licensed under a law of a State or Territory that provides for the registration or licensing of health practitioners. However, this included a wide range of practitioners presumably including pharmacists, dentists, chiropractors and many other licensed health practitioners other than doctors.
NES Requirements
There has been a reintroduction of "reasonableness" into considering the validity of employee evidence of personal leave under the Fair Work Act. Under the FW Act NES, an employee who has given his or her employer notice of the taking of personal leave must, if required by the employer, give the employer evidence that would satisfy a reasonable person that they were in fact unable to attend for work due to the illness, injury or other allowable reason for taking leave.
In addition, modern awards or enterprise agreements may include term relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave.
So, employers might be able to require a better standard of evidence than it sometimes seemed we had to accept under Work Choices.
ERS Comment: Our overall view of the Fair Work Act is that in most areas it is quite a balanced piece of legislation and even an improvement over many aspects of Work Choices. For example, we applaud the introduction of minimum redundancy provisions for all employees as long overdue.
Our concern remains over the implementation of specific areas of Labor's Forward With Fairness such as -
- good faith bargaining obligations,
- modern awards which in some major industries such as retail and fast food are going to significantly increase costs,
- supposed individual "flexibility" arrangements that might be interpreted as requiring specific IFAs rather than the much more common practice of common law contracts and overaward payment provisions (see our latest update on the topic),
- making it easier for unions and their members to take industrial action against employers, whilst making it harder for employers to penalise employees for doing so.
I have an employee who
I have an employee who phoned in mid morning to say that she could not come to work as she was too tired absolutely exhausted. Her shift was 1.33 - 5.30 pm. She was told that she would need a doctors certificate. She did not produce one during the week so did not get paid. She then carried on that she did not get paid and said she was not told to get a medical certificate. this was the second monday off in three weeks - the first she got a certificate four days later and was paid. Now she has come forward with a photocopy signed by a JP of a Stat Dec to say she was feeling sick because she was too tired. Do we have to legally pay her or not as we believe it is a game and is being put on. I will see if the document is legal tender in the mean time. Thks
Editor -
New rules under the NES came into effect on 1 January 2010. The employee must, if required by the employer, give the employer evidence that would satisfy a reasonable person that they were in fact unable to attend for work due to the illness, injury or other allowable reason for taking leave. Being tired or even exhausted doesn't sound like any of those to us, unless of course they have chronic fatigue syndrome or similar, in which case the employee should go to a doctor to get properly diagnosed in any event!
NB This blog facility is more for posting comments rather than asking questions. Call us on our National 1300 55 66 37 number to discuss your issue with our experienced consultants, so we can get all the factual background. Thanks.
Post new comment