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HR to Go podcast episode 3: Q&A—Ask an expert (transcript)

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Thanks for joining us today for our May Lunch and Learn. This is the first one where we’ve had the topic of ‘ask the expert’, so hopefully I’ll be able to give you the information you need. As always, I’m happy to take questions at the end. A couple of our clients have sent in questions. We haven’t been able to include all of those questions in this afternoon’s Lunch and Learn, but most of them we have been able to. If there’s any other questions at the end, I’m happy to answer those questions.

As a bit of a disclaimer, the answers we are providing today and the questions we received is not intended to constitute any legal advice, instead it’s information for information purposes only. We strongly encourage all business to receive legal advice for their individual circumstances.

So, the first question, that’s been sent to us is: Do you have to pay all the allowances in the Award if you are paying above hourly rates/salaries?
The answer to this question will largely depend:
1. on the contract and whether it specifically states that the over-Award component exempts the requirement to pay any other entitlements and allowances under the Award; and
2. how much the over-Award payment is and whether it is high enough to cover off on the allowances and entitlements.

Employers often mistakenly think that just because they are paying a rate higher than what is prescribed in the Award, that they don’t need to pay any allowances or entitlements contained within the Award.

This is incorrect.

When we are working with a client (in the absence of an exemption rate – which for example is contained in the managers section of the Club Award), we would consult the Award to determine the entitlements, request a mock roster (normally a month-long roster is sufficient) and then calculate the earnings including allowances, over-time, etc and then consider including an additional amount to ensure the client is not at risk of an underpayment of wages. We then recommend re-visiting the calculations at the 6-month and 12-month mark to ensure there is no underpayment.

Question: Do you have to accept a long resignation notice if the employee’s contract only says one week?

Generally, you will be required to accept the notice as provided by the employee when resigning. Contracts tend to provide a minimum notice period. You could try to negotiate this down, however, the employee can provide notice as they deem appropriate.

Question: What to do if staff are on workers’ compensation for a long time?

The answer to this will depend on what state you are in. You cannot terminate an employee who is on workers comp within the following time periods:
• NSW — 6 months
• Qld — 12 months

However, when these timeframes have passed, you cannot simply terminate the employee. You need to get advice from the medical practitioner as to whether or not the employee is likely to return to pre-injuries in the foreseeable future. So after these time frames have passed you need to write to the employee and direct the employee to provide you with a medical report (not a medical certificate) which answers this question.

If the answer is that the employee is unlikely to return to pre-injury duties, you can terminate on that basis.
If the answer is that the employee is likely to return, you need to then seek some timeframes for the employee to return to work and continue to ask the question until either the employee returns or the medical advice is that the employee is unlikely to return.

We can assist in the drafting of any correspondence and the strategy in hopefully getting an outcome.

Question: We have been overpaying an employee. Can we ask the employee to pay this back?

Retrieving over-payments is always a tricky process. The best-practice approach is to have a discussion with the employee about the over-payment, explaining how this has occurred, the amount of the over-payment and request that they sign an agreement to repay the over-payment over a period of time.

Employers should not be deducting the over-payment from an employee’s wages without express prior agreement from the employee (note this should be in writing). To do so would be a breach of section 324 – Permitted deductions – under the FW Act.

If the employee doesn’t agree to repaying the amount, there is not a great deal that the employer can do. It is for this reason that we recommend our clients have robust processes in place for payroll, including considering an annual payroll audit to ensure the business is complainant.

Queensland Health are infamous for their payroll debacles. Thousands of Qld Health staff were underpaid and overpaid in 2010 due to a new payroll system not being tested properly. Those who were overpaid were asked to pay back over payments within two years. They were in the news again in March of this year for a similar issue, which has affected fewer staff this time. This time around, Qld Health is not asking employees to pay back over payments.

Question: Do we need to remove the confidential pay clauses from all our existing employment contracts?

Under the Secure Jobs Better Pay Amendments, employers are obligated to ensure that any employment contracts entered into after 7 December 2022 do not contain pay secrecy clauses.

However, for those employment contracts that were in place prior to 7 December 2022, there is no obligation to remove the pay secrecy clauses. These contracts will still be enforceable until they are varied.

If any variations are made to existing contracts the pay secrecy clauses must be removed.

Question: Do we have to ask staff before we do rosters if they can work a public holiday?

In light of the recent High Court decision, our advice is that you post the rosters in advance as you would normally do. If a public holiday falls in that roster period, you should include a note that states “you have been rostered to work on a public holiday. If you do not wish to or work on the public holiday, you should contact HR/Payroll and provide reasons why you do not wish to or cannot work on the public holiday”.

Such a request would be reasonable if there is an expectation that you would be trading on a public holiday e.g. retail, hospitality and emergency services.

The reasons for the employee not wishing to work the public holiday should be reasonable e.g. family responsibilities. It is simply not sufficient for the employee to simply say that they would not rather work the public holiday, particularly those industries where it is expected that you are trading on a public holiday.

Question: If we close at 2am, are we required to provide transport for employees who do the closing shift?
Presumably this business is operating under the Hospitality Award, so we have answered this question on this basis. The Award states as follows:

26.8 Working late
(a) Clause 26.8 applies to an employee to whom all of the following apply:
(i) the employee finishes work at a time at which it is unreasonable for them to travel to their usual place of residence by their regular means of transport; and
(ii) the employee is not provided by the employer with accommodation or a means of transport to their usual place of residence at no cost to the employee.
(b) The employer must pay the employee the reasonable cost of transport to their usual place of residence.

So in the absence of any other information to the contrary, the employer would be required to cover the costs for transporting an employee home if they couldn’t get home via their normal means.

A simple way to negate this obligation is to have a question regarding transport/access to a vehicle in the interview prefaced on the basis of a duty of care to ensure those employees working late have a safe way to get to and from work.

Question: If we provide our staff a uniform, are we required to provide them laundry money?

Generally, if you require an employee to wear a uniform then you are required to either launder the uniform for them or reimburse the employee for the cost of laundering the uniform themselves. This can be done via a laundry allowance or an agreed amount for reimbursement. Note, the ‘agreed amount’ generally should not be less that the specified laundry allowance amount. Your specific Award will provide more detailed guidance on this.

For the Hospitality Award it is as follows:
(c) If the employee (other than an employee mentioned in clause 26.6(d) or 26.6(e) is responsible for laundering any special clothing that is required to be worn by them, the employer must:
(i) pay the employee a weekly laundry allowance of an amount agreed between the employer and the employee; or
(ii) in the absence of an agreement mentioned in clause 26.6(c)(i),reimburse the employee for the cost of laundering any item of special clothing. For this purpose the employer may require the employee to show evidence of that cost.
(d) If a catering employer requires an employee (including an airport catering employee) to be responsible for laundering any special clothing that is required to be worn by them, the employer must pay the employee a laundry allowance of $6.00 per week for a full-time employee and $2.05 for each uniform for a part-time or casual employee.
(e) If a motel employee is responsible for laundering any special clothing that is required to be worn by them, the employer must pay the employee a laundry allowance of $2.40 for each uniform up to $7.45 per week.

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