Question 1

Do I accrue annual and personal leave for an employee who is on unpaid leave?

Accepted Answer

No accrual of a/l or p/l while an employee is on unpaid leave. No pay for public holiday.

Question 2

If an employee leaves without the appropriate notice being given, can I hold back payment of outstanding wages and/or accrued annual leave?

Accepted Answer

If an employee who is at least 18 years old does not give the required notice, the employer can hold back any unpaid wages up to a maximum of one week only. Monies cannot be withheld from any outstanding annual or long service leave. (Clause 38.1(d))

Question 3

If more than one of my staff have first aid certificates, do I have to pay them all the first aid allowance?

Accepted Answer

No, only the designated first aider.

Question 4

I have a guy that resigned and commenced employment elsewhere, he has been gone for over a month and has come back asking if we would re-employ him.  Would this be classed as discontinued service or are we obliged to employ as if it were continuous service?

Accepted Answer

Clause 29.2 of the TIA provides that where the employee is terminated by their employer (not the case in your instance) and re-engaged within a period of 6 months, then the employees unclaimed leave is available/continues. Therefore, the fact he left himself nullifies the provision and he is not entitled to draw upon any previous personal leave/sick credits.

Question 5

Can Vaping apply in a ‘No Smoking’ policy?

Accepted Answer

Yes, no vaping can be stipulated in the same policy.

Question 6

What is a maximum probation period?

Accepted Answer

(Fair Work) It is typical for a probationary period to last no longer than 6 months for new employees, and 3 months for employees moving to new posts internally.

Question 7

Is annual leave loading included in OTE for superannuation purposes on payout on termination?

Accepted Answer

No. In fact there is no super payable on lump sums paid out on termination (e.g. a/l, LSL)

Question 8

Is leave loading payable on outstanding accrued annual leave on termination?

Accepted Answer

Yes, on fully accrued and prorate leave.

Question 9

One of my employees has excessive annual leave.  Can I direct him to take leave even if he is reluctant?

Accepted Answer

Yes, however first try to reach agreement. If unsuccessful, yes in writing providing the employee’s remaining accrued entitlement to paid annual leave is not less than 6 weeks after taking the leave, and not require the employee to take the annual leave beginning less than 8 weeks, or more than 12 months, after the direction is given. (Clause 28.8).

Question 10

If I pay an employee annual leave in advance and they leave before full accrual of those hours, can I deduct that from termination pay?

Accepted Answer

Clause 28:11(d) – agreement in writing.
If, on the termination of the employee’s employment, the employee has not accrued an entitlement to all of a period of paid annual leave already taken in accordance with an agreement under clause 28.11, the employer may deduct from any money due to the employee on termination an amount equal to the amount that was paid to the employee in respect of any part of the period of annual leave taken in advance to which an entitlement has not been accrued.

Question 11

An employee goes from full time to part time – how is their annual leave and personal leave accrued?

Accepted Answer

0.03854 per hour for personal/carer’s leave/0.0768 per hour for annual leave.

Question 12

Do employees have to be paid leave loading if they are paid above the award?

Accepted Answer

Yes, unless covered by an IFA or a specific written provision in their contract.

Question 13

When does an employer have to pay wages on termination?

Accepted Answer

Dependent on how the employment is terminated:

By the employer giving notice or payment instead of notice, or by the employee giving the required minimum period of notice – On the day of termination of employment.

By the employer or employee other than as above – No later than 7 days after the termination of employment (i.e. the employee gave no notice).

Question 14

Can an employee claim sick/personal leave while they are on annual leave?

Accepted Answer

Yes, with documentary evidence from a medical professional. The annual leave coinciding with the personal leave should be recredited.

Question 15

Can an IFA incorporate penalty rates or annual leave loading?

Accepted Answer

Yes. It can incorporate the following:

arrangements for when work is done, such as work hours
overtime rates
penalty rates
allowances
leave loading

Question 16

Can an employee cash out their annual leave if they require finances for personal reasons?

Accepted Answer

Under the TIA (Clause 28.13): The agreement must be in writing and must not result in the employee’s remaining accrued entitlement to paid annual leave being less than 4 weeks. The maximum amount of annual leave that may be cashed out in any 12 months is 2 weeks.

Question 17

Do casuals have to give a resignation notice?

Accepted Answer

Question 18

How many hours is reasonable overtime?

Accepted Answer

Some of the following must be taken into account (Clause 26.9):

any risk to employee health and safety from working the additional hours;
the employee’s personal circumstances, including family responsibilities;
the needs of the workplace or enterprise in which the employee is employed;
whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
any notice given by the employer of any request or requirement to work the additional hours;
any notice given by the employee of his or her intention to refuse to work the additional hours;
the usual patterns of work in the industry, or the part of an industry, in which the employee works.

Question 19

If a casual worker accepts permanent employment, should they complete a new minimum probationary period?

Accepted Answer

Question 20

Can an employee request carer’s leave to take his wife to a doctor’s appointment when she is unwell?

Accepted Answer

Yes, subject to requirement of proof.

Question 21

An employee has given two weeks’ notice.  He has requested a day of personal leave to attend a pre-employment health check appointment for his new job?  Is this reasonable?

Accepted Answer

The employee would be allowed to take the time off without pay.

Question 22

Can an employee be made to work on a public holiday?

Accepted Answer

Employers can request employees to work on a public holiday but the request has to be reasonable. An employee can refuse a request to work if the employee has reasonable grounds, or request is unreasonable.

Question 23

Can award entitlements be offset by higher pay?

Accepted Answer

Yes, employers can incorporate award entitlements into higher pay so long as a written agreement is in place specifying what entitlements are compensated for and employers ensure an employee’s pay does not fall below what an award requires. Employers must maintain adequate records of work performed.

Question 24

Can you recover monies from an employee if you overpay them by error?

Accepted Answer

Generally, the deduction of amounts from an employee’s wage is only authorised if the deduction is:

For the employee’s benefit
Is a reasonable term under a modern award or enterprise agreement or contract of employment
Or the deduction is authorised by a Commonwealth, state or territory law or an order of a court.
The most common cause of overpayments is due to a clerical or computer input error, such as incorrect information put into the payroll system. Generally, such a clerical error is recoverable through the courts.
An employer may also have a company policy regarding the recovery of overpayments to staff, provided the employee agrees to the arrangement in each instance.

Question 25

An employee has no paid sick leave left and has applied for annual leave. Does it have to be paid?

Accepted Answer

Yes, they can use annual leave by agreement, however consideration should include whether they will have enough leave available at annual close down.

Question 26

Can you track an employee’s location in work vehicles?

Accepted Answer

Generally, yes, however check the state jurisdiction with TTIA. The employer must ensure there is a note on the vehicle that it is being tracked and subject to surveillance. The company should have a company policy regarding workplace surveillance that explains circumstances under which the employer will monitor work related activities. All affected employees must be advised of any employer monitoring at the workplace.

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