Unlock the eSignature Lawfulness for Leave of Absence Agreement in Australia

How to eSign a document: eSignature lawfulness for Leave of Absence Agreement in Australia

hello welcome to adler's latest in its series of webcasts my name is julian i'm an associate director at abla in the workplace team if experts make things simple simple i'm very lucky to have a real expert with me today dean tyler he's a long-standing member of the adler team style on the advice line and has been a lawyer with us for a number of years now dino today we're talking about managing leave it's a topic that we get a lot of questions about we have got a lot of questions this week so what are we going to be talking about today thanks jules thanks for the introduction i think you've set uh quite a high bar which i'll need to make um so you're exactly right we do get a lot of questions about leave particularly in the last couple of years uh when uh you know the pandemic has sort of um really become one of the big part of our lives so and it's really impacted upon business so today we're going to be talking about the various different types of paid leave and some of the types of unpaid leave that some employers tend to forget about and we're really going to be focusing on annual leave and personal leave and a lot of the questions that we've been getting particularly in the last couple of years uh around those two topics but just just questions that sort of come up a lot um and have come up a lot sort of through our practice and then just sort of general questions about leave as well thing about leave dano is obviously everyone knows how to take leave people take and leave all the time it's the management of leave that employers need to be interested in need to be aware of i know for a fact it's on the bottom of a lot of hr practitioners to-do lists how do we get the leave balances down how do we you know are we are we taking enough leave as a group um from a health and safety perspective are people rested refreshed um productive it's one of those things and this is why we do this telecast webcast every year it's something that constantly needs to be brought up to the you know the front of mind to make sure that people are taking leave that your leave balances are being managed properly and people are taking leave in the right in the right ways for the right reasons at the right times and i think that's so important in the pandemic i think so many of our clients have asked us questions saying our leave balance is huge because people haven't wanted to take leave because they've had nowhere to go for a lot of the pandemic and many people have been working from home and they've just sort of been banking it and now we're returning to a somewhat normality and people can travel again overseas interstate um employers are really keen to get their leave balances down and get people taking leave because that's what it's there for there's still going to be some problems though even if the borders have opened up but let's get to them slightly later in the program let's move on to our first slide paid leave so this is the interesting thing for a lot of people dana do you want to just take us through the different forms of paid leave and some of these things we're going to hit in a more comprehensive way very soon at the start of the start of the webcast but dana do you want to hit us through the the paid leave forms sure so i think the vast majority of people or probably everyone on this call is aware of the main types of leaps so we're talking annual leave that's our four weeks per year for most workers but five weeks for some shift workers we've got our personal carers leave otherwise known as sick leave which is 10 days per year accumulating from a year to year or a pro rata for part-time employees we've got compassionate leave which is two days per occasion compassionate leave is the type of lead you never want to have to use because if you do have to use it obviously something really sort of difficult has happened in your life so that's when um one of your close family members dies or they have a serious illness or injury um so obviously you want to avoid using that or have an occasion using that if you can public holidays we always like having public holidays in some states there are more than others and we've obviously got workers compensation as well which is probably slightly different given that it's um not sort of the the paid leave that's guaranteed by the national employment standards but we will we will touch on that so there are all those things that you've just read out or at least with the exception of public holidays and workers compensation in the federal sense of federal based entitlements there's also some state-based entitlements as well dino as you well know long service leave is something that will vary from state to state lots of interesting questions about long service leave and there's a twinkle in your eye dino when i talk about long service leave maybe we'll talk about that later too workers compensation in the state-based scheme is obviously a state-based entitlement and as you rightly say it's not so much a form of leave it's more of an absence that you're being paid or that you're during which you're being paid there's a fascinating development currently happening in victoria where victorian the victorian government has implemented some paid sick lethal casuals now it's also relevant to point out a lot of the things you've just listed there do you know that they really only apply to permanent employees so your your casual employee is not getting annual leave it's not getting personal care as late the idea being that they're getting a 25 loading on their pay rate to compensate them for those types of leave and others the last point is something we'll talk specifically about which is enterprise specific leave forms maybe that's an overly technical way of saying leave that applies at a particular business for a particular reason at a particular time and this vast array of interesting things to talk about there some of which we will talk about today so i said this was really interesting it is so the victorian sick pay guarantee which has just been introduced provides casual and contract workers some in different industries or in a few select industries with a guarantee that they will receive sick pay when they need time off the way that a permanent worker would receive personal care as leave the scheme or the guarantee is going to operate for two years starting this year 2022 and it's fully funded by the victorian government so the idea is that in specific uh really public facing in the pandemic we talked about these types of people as frontline workers hospitality aged care sales security cleaners will be eligible for in the first phase of victorian sick pay guarantee for paid leave five days and it'll be at the national minimum wage this is an interesting development not because employers necessarily deem will have to change the regulation of their employees or add something new to the payroll or anything like that it's more a shift in thinking about how we deal or how government has chosen to deal with casual workers to deal with something that happened in the pandemic which is to say if i'm sick maybe i have maybe i'm worried i might have covered do i come into work or do i stay at home if it's if it's a discussion where you're thinking well i'm gonna have to forgo pay that's what this is aimed at i think the best thing we can do about this or the most interesting thing we can say about this is just watch this space if you're in victoria it's obviously relevant and interesting to know about you might have employees taking advantage of this scheme but it's it's an interesting little development to keep your eye on as things continue and it's certainly the freshest and newest and most shiny thing in the paid leave space that we could bring to the table so if it's news to anyone um hopefully that that assists long service leave dana do you want to take us through the long service sleeve slide noting that there's a lot of there's a lot of questions about this and again you're smiling i'll i'll i'll keep my powder dry on the long surface sleeve question until a bit later i i i'm just very passionate about long service leave jules you're exactly right each state has its own different long service league legislations this can get a little bit confusing for the employers who do have employees in multiple states but generally an employee is entitled to take a period of usually between about two and three months long service leave after ten years at a continuous service depending on the state um so for example in new south wales after 10 years you're entitled to two months but in south australia much more generous after 10 years an employee is entitled to three months of leave which is quite nice for those based in the employees based in south australia some other differences so victoria for example uh quite recently i think 2018 uh redid their long service leave act um and uh what the the as far as a long service leave in victoria goes you can take that not after 10 years but after seven years so they can take that victorian employees can take that a little bit earlier now prior to long service leave it can get a little bit tricky because in every state you've got to hit a threshold there's usually about five years worth of service before we start talking parata long service leave but even then normally it only becomes a topic if an employee is terminated or if the employee resigns for a specific reason so the reason might be um due to health reasons um or some form of pressing family or domestic necessity which might entitle until payment of their priority services it's a bit of a gray area as well it's dinosaur isn't it because that test is not quite as hard and fast as some of the tests that you see in the fair work act and you also got to remember and this is relevant to i think the next stop point you are dealing with long-serving employees so this is an area where there is a much greater ground for discussion with the employee negotiation with the employee deals being done is a bit of a crass way of putting it but basically arrangements being made such that while it not be precisely to the letter of the particular act in a particular state it all works out yeah i i think that's right but i think to come back to sort of the point sort of the key point of it is that the intention is for the employee to take long service late which is why only i think one or two states actually allow the cashing out of long service leave so here in new south wales you cannot lawfully cash out long service sleep if someone's been with you for 10 years you probably want them to take a break at some point to sort of refresh so i think that's very much the intention of the legislation that second last stop point it talks about recent changes in new south wales now those recent changes were in response to the covert 19 pandemic and it allowed a bit more flexibility in the taking of long service leave so you know if you were to read the long service lay back to new south wales to the letter of the law it would say something like an employee would have to take their long service leave in specific blocks you know one month two months etc and this allowed a bit more flexibility now i'm sure plenty of employers took advantage of that during the pandemic but what you should know is the changes that are now very recent is that these were only temporary changes and they're no longer operative as of the 31st of march so the window has closed the window has closed and we are back to the status quo uh pre-covert as of uh the first of april as i said i mean and you're right those changes did address some free up some flexibility around this area it's still fair to say though isn't it dino that there's usually disputes around long service leave um tend to get resolved between the employee and the employer this is not something that's litigated particularly often obviously an entitlement to long service leave occasionally gets involved in litigation when someone resigns or is terminated and then claims their log service leave but where the employee remains in employment usually if you can't have a discussion with an employee who's reached their long service leave age or leave long service sleep tenure at least then um yeah you're struggling with your discussion skills so that's that's interesting that the the new south wales changes have ended what does happen if my utopian world of employee and employer agreement and and and cohesion doesn't work out what happens dino if the employer and the employee can't agree on the taking of long service slave uh jules if it would be great if we lived in your utopian world but it would give us a lot less work to do possibly put us out of a job but in that in that scenario if you really can't agree and i know that some employees really want to just bank their long service leave for a long period of time maybe they want to cash it out or not cash it out lawfully necessarily but have it paid out upon termination an employer can actually in the vast majority of states um except tasmania in northern territory um they the employer can direct someone to take their long service level part of their long service leave if they give a sufficient amount of notice depending on the particular state so again you want to have those discussions first brilliant special lead from policies and bargaining now everyone knows well most people know fair work act derived forms of leave dino's just taken us through a state-based form of leave there is an absolute myriad of other forms of leave out there the list is literally endless of leave forms that have been created by employers or created by policies or created in bargaining or pushed by unions to be involved in bargaining i've listed some of them there many of these are really really well established in a bargaining sense paid domestic violence leave is is a very established um form of leaving in a in an increasing number of enterprise bargaining um enterprise agreements uh it's fertility leave gender affirmation leave blood donor leave uh cultural engagement leave and particularly in relation to indigenous australians is increasingly common seeing in the bargaining space but then there's probably what would you say the more maybe not mundane but the more sort of specific forms of leave moving house leave study leave occasionally organizations have leave days and we have enjoyed chamber day over the years dino and i i'm working for a law firm in the south business chamber family so that's been fun for us there's also leave days where where basically the business will say you do whatever you like on this day it's your day it's your me day it's your self-actualization day let's leave about pets the list goes on and on and on i mean i would love to get people sending in their weird and wonderful forms of leave to the to the chat to the chat function or emailing us or whatever because it's an interesting thing it's an interesting development now as fun as as fun as some of that is and as serious as some of that is there are still things you need to think about before you go and implement these types of leave and i've listed them in in red one to four on the right of that slide firstly you've really got to be careful of discrimination adverse action risks obviously you don't introduce a form of leave particularly the types of leave that are at the top of that list with bad intentions you're doing it for good reasons with good intentions that being said you really want to have a think about whether what you're doing has the potential to discriminate against certain people or potentially discriminate against well people in certain situations so that's the first thing don't make a step that you're trying to help people turn into something that ultimately people are going to be upset with so that's the first thing the second thing dino is obviously if you're if you're going to introduce some of these things you need to understand how permanent these leaf forms are going to be if you introduce it into bargaining for example and it gets into an enterprise agreement uh in your experience dino it's probably staying in the enterprise agreement forever it's definitely staying in the enterprise agreement forever so that's i mean and again if you're doing it by choice that's great and very very happy for people to do what they want to do but just understand that agreeing to introduce these types of life forms can you know it can be a permanent decision the third point is understand expectation management again realizing that providing different forms of leave will create an expectation that the the business or the organization will one obviously continue to provide that which goes to point two but also it might open up the door for other forms of leave and other conversations about other things the business could be doing again free to do so and a lot of people do but just understanding that that might create an expectation of further steps by the business or the organization lastly the key word in any of this and basically in any of an hr ir function you need to retain some flexibility whether that be of how the policy or the lead form is applied or maybe just in terms of whether you can revoke seems like a harsh word but withdraw the particular leave form if circumstances change leaving a bit of wiggle room when you're giving some of this stuff where you're putting some of these things in place can be can be helpful obviously that will depend on the leave form some of these things are you know really important to organizations and employees that are non-negotiable so to speak other things less important or maybe more peripheral could be could be more flexible if anyone does have any interesting life forms please feel free to send them in dino you're not getting it paid anymore i want you to take us through unpaid leave no more money all right thanks thanks jules so various forms of unpaid leave um and the list is long but we'll start with probably the most common one which is parental leave now parental leave in the national employment standards is very very long it's actually quite complex i could probably talk for an hour just on the various um you know i guess ins and outs of of parental leave so it is quite technical but to sort of boil it down to its its simplest form it's basically 12 months of of unpaid leave for someone who is you know becoming a parent now some people will some sometimes say you know is it unpaid leave and what can they get any forms of paid leave so yes there are some forms of government paid parental leave you can get you have to apply directly i think through the department of human services to to get the relevant paid leave but i think the best way to think about the 12 months of unpaid parental leave is actually it's more a return to work guarantee it's it's more a an entire legal entitlement that someone can go they can take up to 12 months parental leave and they're entitled to walk back into the same job or essentially the same job that they left now employees can ask for up to an extension of an additional 12 months so a total of 24 months of this unpaid parental leave and that return to work guarantee once it passes the first 12 months the employer does have a little bit of discretion to refuse but only on reasonable business grounds so if you are going to refuse someone an extension then you want to make sure you have some good reasons to do so um that that second point there about regular and systematic casuals are eligible for this form of leave i think the only thing i want to say about that jules is that i think that the bar for what is regular and systematic casual that sort of eligibility criteria for regular and systematic i think it's a fairly low bar i don't think i don't think a casual needs to work a lot in order to meet that regular and systematic casual criteria so i think what i would say is er on the side of yes at this casualty is entitled to the parental leave as long as they have the 12-month service at the time of taking the leave that's sort of at least the first eligibility criteria but when in doubt um obviously seek advice but more more casuals than not are going to be entitled to take the parental leave i think yeah i guess it depends on the pattern but i think you're right and i think the way that you've described it as it's not so much a form of unpaid leave it's more of a an entitlement to be absent and entitlement to return the cash the regular and systematic systematic casual right to return is interesting because it begs the question well what is a casual employee actually returning to in terms of their regular hours or their regular roster because a lot can change in in six months let alone 12 or 24 months but in saying that i think that's a good summary and without wanting to we could we could spend an entire hour on parental leave but without wanting to go into it too deeply again parental leave is one of those things and experience on the advice line would bear this out the communica if you can have a communication dialogue with your employer on parental leave you'll be able to manage issues in a lot better way than if you basically say as they're as they're leaving to to go on parental leave see you in a year or see you whenever see you when we see you it's about having the dialogue managing expectations managing when what they want to do and that seems to reduce disputes absolutely other forms of unpaid leave domestic family and domestic violence slave is a current unpaid leave entitlement i'll talk a tiny bit more about that on the next slide but as we sit here today right now there is in the nes five days of unpaid leave for all employees including casuals it's interesting it's an interesting way of accumulating or maybe not accumulating in that family and domestic violence leave you get up front at the start of your at the start of a year so every employee starts with five days unpaid unpaid domestic violence leave per year at the end of the year um i guess if you've taken any you know it will always go back to five at the start of it it doesn't accumulate after two years if you don't take any you don't have ten days you've only got five days that goes with an asterix because of what we're going to say in the next slide but at the moment that's an nes entitlement then there's community service leave which is an interesting form of leave and sort of really only pops up for some employees in some scenarios can you take us through community service leave yeah i think there's broadly two categories of community service leads so one is think about your volunteer firefighters your ses volunteers and you know over the last couple of years they've those particular two types of volunteers had a lot of work to do and they are entitled to unpaid leave to go and undertake that work now the second form which i think maybe comes up a little more commonly is essentially jury duty so leave for jury service and while there is i mean there is a some payment here but it's it's make up pay so someone on jury duty will usually get some form of stipend or some form of allowance for being on jury duty and the obligation is for the employer just to make up the difference between what they got paid while on jury duty and bring it up to the level of what their normal salary is but that obligation under the nes only lasts for 10 days so if you're one of those lucky people who get on a 10 week or 12 week trial your employer is only going to be really paying the make up pay for the first 10 days that's right yep understood the other areas of unpaid leave uh are listed there i don't think we probably need to go through with them in too much detail because i think we touch on them in the later slides and questions unpaid carers leave unpaid pandemic leave which i'll speak about shortly and compassionately leave without pay by agreement and leave without pay on health grounds but i think we can kind of touch touch those touch those buttons later as we go through the questions family and domestic violence leave here's the asterix that i was talking about so as we said there's currently an entitlement to five days unpaid under the national employment standards that's for everyone all all federal employees federal system employees which is the vast majority of employees it's available in full upon commencement and doesn't accumulate there is a case running right now which for uh very good reasons i will not say too much about because i'm involved in the case so i won't be providing any commentary on the case i will just say factually the case is for a claim for 10 days paid family and domestic violence leave and five days unpaid per occasion so any time that you needed to go and do something because you're suffering from family and domestic violence you would have five days unpaid after you've expended the 10 days paid per leave in all modern awards so that's only modern award-covered people it's not an nes entitlement the final hearing for that case is on friday as in three days time you need to be watching this space um is basically what how i would put it you need to watch this space in modern awards and i think based on what happened with the nes entitlement which ultimately was derived from a previous award case about five years ago if anything happens in modern awards there's a potential that something might happen in the nes as well for many many employers might not be relevant because we as we said before you might already have paid leave in your enterprise agreement or under a policy that's fine watch this space you'll you'll see updates and i'm sure we'll be providing some alerts as and when we we need to unpaid pandemic leave schedule x it's such a good name so it's like so thrilling uh schedule x was a real creature of the pandemic for obvious reasons this was a schedule which was introduced into huge number of rewards which basically let people take unpaid leave while they self-isolated you think about it at the start of the pandemic if you were a casual and you had to isolate for 14 days you didn't have an entitlement of the fair work act to isolate for 14 days if you're a permanent employee and didn't have enough sick leave or didn't have enough annual leave you didn't have enough you didn't have an entitlement to isolate for for 14 days because you weren't necessarily sick you were just told by the government you had to stay in a locked box for 14 days it was introduced in the pandemic it's still in around 70 awards and obviously people still need to undertake self-isolation the rules are a tiny bit different now and obviously are different in different states but remember schedulex is an interesting stage because while it's in around 70 awards it's lapsed in around 30 awards including some biggies clarks road transport education and mannequins and models all the all the big ticket ones and so you might you might have schedule x you might not have schedule x that only applies to the self-isolation requirement the leave at half pay thing that was in schedule x for a while is no longer applicable anywhere because no one applied to to keep it going that's basically it we're into the media part of the webcast and you'll leave personal carers leaves and questions on those topics so let's dive in dino annual leave we've kind of dealt with this haven't we um take me through the last two dot points or what what you might say about the last two dot points okay so annual leave can be taken at times mutually agreed as it as it says on the screen i i think the the fair work act uh wording says that an employee can take annual label that can request annual leave and an employer must not unreasonably refuse the leave so while an employee can ask and you know there is sort of an assumption that they can take the leave but the employer can't unreasonably refuse and what might an unreasonable refusal look like well uh if i went to julian if i went to you today and and said to you julian uh i would like to take three weeks of leave starting tomorrow well i think you'd be well within your rights to refuse given that you i've given you no notice and you probably would need to make arrangements in my absence so that could look like uh certainly a reasonable refusal i know a lot of employers will also say during a particular period will say limited or no leave can be taken during this period and maybe that's because of one of their really busy periods and that is often a policy that's communicated throughout the whole organization but i think what's what's really important here is that if you are going to refuse you've got to have a good reason but just remember that employees can't just apply for annual leave and just take the annual leave while it is an entitlement it does have to be an element of agreement a meeting of the minds to actually take the lead it's not an absolute or divine right but basically any any test where you have reasonable in front of the test i mean reasonable minds can differ on what reasonable means so again you don't necessarily want to be having disputes about when people can take leave sometimes i mean this this webcast is called managing leave sometimes it's about managing leagues such that you don't have to have that dispute but it's not all agreement is it dino no it is not so uh some i think the majority of awards uh if not all of them include terms about um about an employee either taking annual evil being directed to take excessive annual leave as well as it does also contain provisions although i don't know of a case being that's come across my desk but being used where an employee actually uses the award and the terms in the award to say to their employer you haven't let me take leave so i'm going to apply this section and i am going to take the leave but so in the vast majority of scenarios and particularly now when a lot of people have quite an excessive leave balance and if you're covered by an award an annual leave balance is normally considered excessive if the employee has about eight weeks of accrued annual leave or ten weeks if they are a shift worker and the awards will set out a process and normally again talked about we've sort of emphasized that we want to talk to our employees so there is a consultation process in there where if the employer and the employer cannot agree and your employee is just not taking their annual leave then you can implement the terms of the award to actually direct them and that involves giving them a certain amount of notice and that usually at least a month and also there is a limit on it so you can't direct them to take all of their leave you would need to say well you've got say 10 weeks of annual leave we are going to direct you to take you know one week or two weeks there is normally a limit on how much you can direct them and normally they have to have a leave balance by the end of that direction which is no less than it depends on the award it can be four weeks six weeks um something like that it's all about what the award says i mean it's the first thing to go is look at the award and it will identify quite clearly the parameters i'm always slightly surprised with the award clauses in that those with excessive leave you can't you can't take the leave balance very low i mean i think the the sort of the the lower steps might be four weeks it's definitely no lower if you've got if if you're in the directing leave for excessive accrual space and you're directing under a modern award don't think that you're going to be taking someone's leap balance down to you know one or two weeks or even you know what you might think is a normal amount they're still going to have a bank of leave so your managing leave problem isn't going to be solved by an award clause you probably have some extra work to do about you know creating a culture where people are taking leave if you don't have modern awards to help you um what do you do then dana what happens to the award free employees well if your employee is not covered by an award the fair work act doesn't say a whole lot all it says is that you can direct an employee to take leave where the requirement is reasonable and that's about it now you talked before about how reasonable minds can differ about what is reasonable and what is not but if somebody does have that a lot of leave and you actually want to direct them to take that leave again engage in the discussion don't just go straight in with the direction but in the end if you can't resolve the issue then you can direct them to take some leave again we wouldn't like we would say be reasonable don't direct them to take absolutely everything but i'm directing to take a little bit because it's there to be taken yeah it cuts both ways for award for employees i mean in one view you might say well that may you know maybe i might be guided by what the awards say you'd leave them with four weeks or you know you might if they're over 12 maybe it's reasonable to direct them it really depends i mean if they're for instance for instance if they're saving up a bank of leave to go on some kind of sabbatical or some kind of thing that's been been entrained for a while it would be unreasonable to say oh by the way arbitrarily we're going to cut six weeks and you have to start tomorrow cuts both ways again if you can have a dialogue which avoids the dispute all the better it's not just excessive leave though dino when you might have to tell people to take leave we're a long way from christmas it seems but annual close downs are a place where you can get people to take leave aren't they absolutely and the awards contemplate this i think it's pretty common practice that everyone's or almost everyone's business will close down at least for some period during the christmas uh you know for a short longer period during christmas but um i know we're a long way from christmas but if you can if you can get organized i would be deciding when your shutdown is and i'd be telling people now um i know of a lot of employers who will only tell people in you know late november oh hi everyone we're we're shutting down from the 24th of december managing leaves at the bottom of the list and people have a lot to do i get that and you're right christmas is a long way away but if you can tell people now or as soon as possible when your shutdown's going to be then they can manage their own leave and also if they want to take a big chunk of leave mid-year which might leave them in a position where they don't have enough paid leave to cover the christmas period well you can have that discussion with them and they can know that so they can be prepared for the fact that all right well some of this some of my christmas period is going to be unpaid there's also you can talk about skeleton staff and other potential arrangements during that period but i think it's always it's always best to get organized now but easier said than done easier said sitting here than than being in you know hr department or everything is easier i know i know uh this is a slide which is a very general slide but this is a slide that was developed in the pandemic about or for an employer who has run run a report whether it be accounting report or leave hr software report and their eyes have turned into dinner plates as they say the extraordinary numbers are on on on their leave balances one to dean's point because no one could go anywhere on their four-week holiday to to bali europe america wherever you want to go the other thing that's interesting which still is with us is the idea that if i needed to get a delivery on a friday or a monday in the old world or maybe a plumber was coming to my house in the old world i might i may well have taken an annual leave day in the new world there's a lot of people working from home on fridays and monday and so a lot of those sort of what would i call them sort of miscellaneous annual leave days that people used to take aren't being taken anymore because working from home for some industries in some areas for some businesses has allowed people to work from home allowed to do other stuff so they don't take leave as much the the four strategies and they start with the i think they start with the thing that you should probably think about whether you can do all the way down to the thing that you have to do if you've got no other options are on the screen incentivize people taking leave is the thing that costs money because what incentivizing leave means is you are offering something so that they take their leave dana can you think of any examples where we've seen clients or maybe even yeah well maybe clients incentivizing the taking of leave yeah i think you're exactly right in the sense that it does involve giving something away um so for for example we've had clients who have said um in the you know when january's been a bit quiet they want people to try and take a bit more leave and they'll say look if you if you take an extra say five days leave i can think of one in particular if you take an extra five days leave outside the shutdown in january we'll only deduct four from your lead balance so essentially they're getting one day for free it's things like that it does cost a little bit but overall they are you are getting elite balance down the second strategy you might not necessarily have to give anything away but persuading people to take leave is it's very available and if you have a leave problem i certainly wouldn't be going to directing and i might not even be going to requesting until you've tried to persuade people to take leave there are really good reasons to take leave some of them and are entirely personal you can communicate to your staff that you know the benefits of taking leave i mean it's it's not an it's not a hard thing to sell taking a day off from work and being paid for it the other thing that you can say is occasionally you can and i think this and we'll talk about in the next slide i think businesses increasingly can can have a dialogue with their workforce to say over covert people have not taken enough leave and there's all kinds of reasons why we should be trying to address that let's take some leave everyone persuasion that blurs into the third point which is to request which is basically it's not so much a direction but is a it is a formal request to your staff to take a certain amount of leave and i think that's what makes it different the persuasion the persuasion approach just says come on everyone let's take some leave the request is probably more direct and i've certainly seen that a lot in the marketplace which is to say look we are asking people to try and take a week off leave before june 1 or before march 3 or whatever it is and you'll be amazed how much cut through that has because again people people like taking leave people will people say yeah that is a good idea i will take leave particularly now borders travel things have opened up a bit the last scariest option is the direction dino you've taken us through the direction or how where you might be able to to direct leave it's got a double asterisk there i mean i think the best thing i could say about that is that has a cultural cost the direction to take leave if you're forcing someone to take leave and they don't want to particularly in circumstances where they can't actually utilize the leave that they've been asked to take it's going to cost the relationship and it has a cultural cost across the organization if i can just say one thing before you move on not sure where this fits between persuade and request take advantage of your of when public holidays are close together so i think we've got easter coming up we've got anzac day shortly after and my maths might not be spot on here but i think if you take four days off between uh the day i think the day after easter monday uh i think it's what that tuesday through friday i think if you take four days of annual leave you'll get something in the vicinity of 11 days off in total and i think that's pretty appealing for people to we've just lost like half of our our attendees they've all just gone and applied for leave after you've persuaded them brilliant dana absolutely amazing um great example great example and a previous place where i've worked did actually send an email out of march saying hey everybody did you know that you can take this very small amount of leave and get this big amount of time off so um as i said i think it probably fits into persuade i i like it the next the next slide touches on things that we've spoken about in going through those four methods how you might approach these conversations obviously need to plan this out this is not something you want to be pushing the button on a week before you need to get a leave balance accrual down you need to have patience and as as i say there incentivize persuade request direct i think honesty goes away a long way in in these kind of discussions the example dana's just given is a very very honest piece of um staff communication i don't think you know it is obviously relevant to tell staff leave is good for you it is a it is a safety question you should be taking leave you should be taking time off to rest and recharge that's something honest you can say there's also the honesty to say look we i think it's open for people to say we have we have too much leave not for a commercial from a commercial perspective but uh you know the group's tired we need to take the leave while we can policies or directives needs flexibility where necessary i've already covered that in terms of some of the other stuff we've said obviously if you're going to create a rule give yourself some flexibility both for yourself and your employees staying on message just means these things are not going to be fixed with a single email keep at it and if you do need to direct again don't set unreasonable time limits time frames be patient and you'll achieve what you need to achieve we're entering the last quarter so let's hit some questions deno how can an employer manage employees who refuse to take leave but also refuse to accept that they're burning out a really good question i feel like we've touched on sort of all the tools that an employer would need and in particular going through the checklist that you talked about and it's really difficult and i think this has definitely come up in the pandemic where a lot of employees have been working from home or a lot of employees have been overworked during the pandemic for um obviously when we think overwork we think the frontline staff are working in our hospitals and nursing homes um when we think people working from home they might be working at all hours of the night and that might suit them it might not but people are struggling to get away from you know they're struggling with the separation between home and work and that's why it's so important to use all the tools that we've already talked about to actually have the discussion with people and try and get them to take that leave particularly now that we have that borders or travel is a lot freer than it was certainly six to nine months ago well i like this question is that i think the way i've been talking about the incentivize persuade uh request direct continuum it has been on a start on all staff communication level you can also use that talking to an individual employer individually employee so a manager taking someone aside and for if if you think they're burning out first you're trying to incentivize then you're trying to try and persuade um then you might flat out request and then look you end up possibly directing but it works at the individual level as well as the firm wide level and i think you're right we've covered it um i would just say though it's very unlikely if you're if this question is relevant to you that you are a doctor or a health professional or a psychologist be careful not to provide any diagnosis to the person be very careful not to put yourself in the shoes of medical profession professional and try and diagnose the person and that's not your job obviously it is a matter for the employee um their health and if you actually are concerned about the health the person to make calls on that are medical professionals so not you but again if you've got a decent dialogue with the employee hopefully you can you can get them to take some time out which would be great personal carers leave this is popped in here i don't think we need to approach this uh in a particularly comprehensive way dino it's a workplace right you know it's it's either sick leave or pair and sleeve parents leave is perhaps too too limited when you need to care care for someone we get questions a lot about what evidence you might be able to require it's always the same it's evidence that would satisfy a reasonable person of the need to take the leave policies and eas will have different things about that in there if it's really important in understanding the way personal care is leave works that it's it's about being unfit for work because of a personal illness or injury affecting them the unfit for work part is important it's not just about being sick generally you actually have to be unfit for work it's interesting in covert times because if you are covered positive but asymptomatic i mean technically you may be you know you might be able to continue to do the job um but you can't come to work so you're not fit for it here's a question if an employee has exhausted their accrued personal care as leave leifdino can the employer force the employee to use their accrued annual leave before they take unpaid sick leave interesting question the short answer is no and i get this question a lot where clients will come to me and say all right well our employees actually run out of sick leave so do we just to start do we just start deducting from their long service leave or their annual lead balance or their rdos and my answer is always no have you asked them the question now i will get a range of responses to that question everything from you know they're not talking to us so they're refusing to engage or or the employee will say yeah it's fine take it out of my annual level take it out of my my rdos so i always ask the question and if you do get no response from the employee or no clear response from the employee do not start deducting annual labor long service leave or something else you essentially need to default to leave without pay because if you start deducting without their consent without their agreement you could find yourself in a situation where you may embrace the fair work act or you might have to pay back that that leave in the future i think what's more common with this question is i will get clients calling up saying i just got a call from an employee they've run out of sick leave so they just said so they just said deduct from my annual leave and they agree and that's fine but then it might be a longer period of leave the employee might the employer might ask for a medical certificate and when the employee shows up on on their first day back at work without a medical certificate they say oh well you took it from my annual leave so i don't need to give you one and that's not that's not entirely true i mean policies might dictate um what the requirement is to provide evidence that would satisfy a reasonable person but regardless the person wasn't at work because they were sick or they were they were unfit so even if in the circumstance where someone's run out of sick leave they are taking their annual leave you can still ask for that evidence to certify their unfit for work so i mean it's those kind of scenarios are really interesting and really in circumstances where you're going into your annual leave often it's a decent chunk of time that you're away for the rule for longish term injured or ill employees is all like the first rule of management is be diligent and just stay in the discussion you know get keep getting the certificates keep getting keep don't let people sit on the sidelines or out you know out of the game for extended periods of time without contact and without following it up for certifications or whatever you whatever you're requiring because one you'll lose a thread or two it'll it will create a scenario where they're not coming back and it's not being progressed so that's a that's a good point dana can an employer manage manage could almost be italicized an employee always taking a monday or a friday personal leave day with a medical certificate now some of us some of our colleagues think this is the the key question for managing leave i think this is the this is the keystone for everything it's a difficult one it is it's i mean it is common that people will often take mondays or fridays off medical certificates are um extraordinarily brief on occasion almost meaningless and so i i understand the chagrin of the employer who is managing an employee who's never there on mondays or fridays and shows up with a a certificate that basically said james was unable to work full stop an employer manage an employee well yes you would do one thing before you even started a process you would actually get some data you would work out when have they taken mondays and fridays off and you would track it and we've done this many many times you would do a spreadsheet to work out how many mondays and fridays have they missed how many other days have they missed and is there a pattern the first question that you would ask such an employee is not are you a fraud a cheat and a liar you would ask them is everything all right you know you're not here on friday you're not here on monday what's happening now the answer may be very very instructive they might have personal carers responsible carers responsibilities on the friday or monday they might have some personal problem that you need to manage they might not be just taking the proverbial and just you know dodging work and chucking a sickie so have the conversation ultimately as we say do you know you can ask for evidence and you can dig a little deeper if you have reasonable grounds to do so so hopefully the conversation starts and ends the problem but if it doesn't you can dig a little deeper getting to a few pag pandemic questions in the latter part in the last five minutes an unvaccinated employee has been on leave for months is that in breach of an employer policy or public health order how does this end it's very sort of i don't know it's like a suspense movie we have many clients who still have employees on long periods of leg usually because a public health order prevents a particular type of employee from currently performing their work many people on the webcast would have seen cases which have resolved the question and you know mo for the most part resolved it in fact almost entirely in the employer's favor to say that's reasonable to dismiss an employee is in breach of a public health order preventing them from working how it ends if an employee is still unable to work because of a public health order it would end with a with a show cause process and ultimately dismissal whether that dismissal will be valid lawful risky will entirely depend on the situation the public health order the employee's role and potentially the public the employee scratch that the employer's policy um if you need any help with resolving any of these issues please give us a call because it does need to end at some point people can't be left on the grass out in the cold forever some decision will have to be made eventually and given our experience during the pandemic uh no cases alike and they are very tricky absolutely and and these i mean if you the amount of people and the amount of times you heard what three years ago oh when this all resolves i mean we're still waiting for it to resolve so we kind of kind of need to action things you can't just wait for things to work out themselves uh another question my employees run out of sick leave when they call in sick they just say oh well take it out of my annual leave do we have to agree to this dino you i was i was the head of the game mind reader dino well done um yeah look that that makes sense and you've covered it how much unpaid sick leave do employees have i can't find an entitlement to it but i know you cannot terminate someone merely because they run out of leave help um i don't think we can do this justice but what i would say is this a lot of people on the webcast would know the temporary absence provision sometimes called the three-month rule in short that means you can't terminate an employee merely because they're absent unless that absence extends beyond three months consecutively or three months in a 12-month period when you've got an employee who has run out of paid leave that's the first thing that you're trying to kind of hit that sort of three month mark to try and work out whether you've gotten over that hurdle but as you love to say dino it's the uh the three-month rule isn't a a license to the smear scissor no it's not a license it's essentially once the three months passes and they have run out of the sick leave it just the prohibition on terminating them falls away so then you can start thinking about or you might start thinking about it before the three months but once the three months passes you can then start to consider termination or go through a process that may end up leading to termination so that could be writing to them potentially asking for more well asking if they're okay maybe asking for information from their gp possibly sending them to an independent medical really understanding whether they are going to return to work whether they can perform the inherent requirements of their role i mean jules we give full day training sessions on managing ill and injured workers i mean that we won't do this just as it's very very complex lots of minds that you can step on um throughout this so yeah very complex yeah look and the reality is an employee might have been absent for six months and if you terminate them you still could have an unfair dismissal risk you know very very general protections yeah yeah real serious so it all depends on the scenario there is no perfect right answer and look that's you know you talked about keeping us in jobs that is one call we continue to get so that's good how can an employer manage an employee taking an excessive amount of personal leave for personal issues i think this stuff tails brilliantly into the first question we asked the monday monday friday question it's about having a conversation hopefully getting to the bottom of it if you can't get to the bottom of it trying to get to a position where you have some data to back up what you're saying and if you need to get to a point where you need to ask for extra information or require the employee to provide some more data and some more detail more data more medical evidence you can eventually get to get to that point absolutely we're in the last minute so i'm going to tell you how we can help do you know that quite well we really did obviously if you have any questions around today's presentation that i see there's a couple in the chat which i'm happy to um to take offline please contact us obviously where you review contracts policies and procedures around leave a lot of the stuff around leave will be embedded in those things if you've got reunions asking about leave or specialist in that give us a call training your staff and management training some of that will dovetail nicely into leave we've got a whole range of different training programs brilliant programs from a whole host of different experts in our team so that's really great you're talking about how you know the whole day we're spending on managing ill and injured workers there it is it's an online training course thursday the 16th of june book ablerloys.com.edu training and our next webcast is the employer update post federal election on a date to the tva uh the election date hasn't been announced unless it's been announced in the last hour so absolutely but it's that's going to be very interesting industrial relations is always a hot topic in elections so i'd tune in for that one i will be deana it's been an absolute pleasure can i on behalf of me and the rest of the group wish you well on your long service sleeve starting in a few days goodbye all thanks everyone