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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