Australia: Ten things for an HR Managers "To Do" list in 2017

Last Updated: 13 March 2017
Article by Michelle Dawson

Happy 2017! With the new year now in full swing, here is this year's list of 10 key items that we think should be on every HR Manager's (or business owner's) "to do" list in 2017.

  1. ANNUAL LEAVE: Review Annual Leave Policies and Employment Agreements as to Annual Leave
  2. Effective from 29 July 2016, most awards were amended to incorporate new provisions as to annual leave. The new provisions include:

    1. a right for employers to direct employees to take annual leave if they have accruals exceeding eight weeks;
    2. the ability for employees to take leave in advance with agreement from their employer (and where an employee's employment is terminated before they have accrued the leave taken in advance, the right for an employer to make an appropriate deduction from the employee's final pay); and
    3. the inclusion of a cashing-out provision, which will permit employers to agree with an award employee to cash out accrued annual leave if they:
      • have a signed written agreement with their employer;
      • have a balance of at least four weeks' annual leave remaining after they have "cashed out"; and
      • don't cash out more than two weeks in a 12-month period.

    ACTION: Employers who have policies in relation to annual leave should review such policies to reflect the changes. Likewise, employers should review any relevant provisions in their employment agreements in order to ensure consistency with the new provisions (and/or the newly revised policies).

  3. SALARY: Review annualised salary arrangements
  4. Where an annualised salary is being paid pursuant to an applicable award, an employment contract must clearly identify the applicable award and meet the requirements of the specific award as to the payment of an annualised salary. Often, that means that it will be necessary for an employment contract to set out exactly which provisions of the award are to be satisfied by the payment of the annualised salary

    In a 2016 Western Australia case1, an employer whose employment contract failed to set out exactly which provisions of the Clerks Private Sector Award 2010 were to be satisfied by the payment of the annualised salary has found itself facing an order to pay unpaid overtime and meal breaks of some $29,000 – despite that the claimant employee had, it thought, been paid an annualised salary. What the employer had done in that case, instead of setting out exactly which award applied and which provisions of the award were to be satisfied by the payment of the annualised salary, was include a "catch-all" provision stating that the annualised salary was "inclusive of any award provisions/entitlement that may be payable under an award". The Court formed the view that such clause was not properly specific as to what the award was and what the annualised salary included – hence the employer facing an order to pay unpaid overtime and meal breaks.

    ACTION: Employers operating under the annualised salary provisions of awards should ensure that their contracts properly identify the applicable award and that the annualised salary provisions in their contracts are specific as to which provisions of the award are to be satisfied by the payment of the annualised salary.

  5. PARENTAL LEAVE: Reassess Paid Parental Leave Policies
  6. The Government introduced revised legislation to prevent parents "double-dipping" into government and employer-funded paid parental leave schemes in late October of last year. That being the case, we consider it likely that the Fairer Paid Parental Leave Bill 2016 (or some modification of it) will introduce parental leave double-dipping preventions in 2017. The ramification of this will be that it will no longer be possible for employees to "double-dip" by accessing both Government-funded paid parental leave and employer-funded parental leave payments. Consequently, parental leave policies and general employer positioning in relation to employer-funded schemes will very likely change.

    ACTION: When the change takes place, an employer's paid parental leave policies and positions should be reconsidered and/or revised.

  7. EMPLOYMENT CONTRACTS: Ensure that employment contracts are not silent on notice and do not rely on the NES or a minimum period of notice
  8. Employees have long been able to bring a claim for reasonable notice when their employment was terminated and the employment contract silent on notice (and an Award or enterprise agreement providing for notice did not apply). There has been a varied view, since the introduction of the Fair Work Act in 2009 though, as to whether s117 of the Act (which provides a minimum period of notice rather than a definitive notice period) affected that right. A decision of the Full Federal Court of Appeal2 recently determined that section 117 does not displace a right to reasonable notice when the contract of employment is silent on the question of notice. In the writer's view, the same would apply where a contract of employment has a notice period which is expressed as a minimum rather than a definitive period.

    ACTION: Whilst there is a conflict in the case law as to whether section 117 does in fact displace the implied term of reasonable notice3, it is prudent for employers to ensure that their employment contracts (particularly where an Award or enterprise agreement providing for notice does not apply), are not silent on notice and do not (expressly or impliedly seek to) rely on the NES or a minimum period of notice, instead relying on a definitive period of notice (which period must be at least equal to the minimum amount otherwise prescribed by the NES – beware specifying four weeks without providing for the additional week's notice once the relevant period of service and 45 years of age are attained).

  9. OHS COMPLIANCE: Ensure familiarity and, in due course, compliance with the new OHS Regulations (Victoria)
  10. The current Occupational Health and Safety Regulations 2007 and the Equipment (Public Safety) Regulations 2007 are due to expire on June 19, 2017. New OHS Regulations are likely to be released in the earlier part of 2017.

    ACTION: It will be important for employers, HR Managers, and other relevant staff to be across the new OHS Regulations upon commencement.

  11. FAIR WORK ACT COMPLIANCE: Ensure particular vigilance around Award and Fair Work Act compliance
  12. With increased activity by the Fair Work Ombudsman (FWO), the tendency for most prosecution proceedings to be pursued also against accessories (parties other than the employer, including directors, senior managers, accountants, HR personnel etc) and the soon-expected significant increase in civil penalties for breaches by both individuals and corporations, employers and individuals alike should act with particular vigilance to ensure full Award and Fair Work Act compliance.

    ACTION: Employers and (where applicable) their directors and HR Managers should, in the least:

    • properly analyse wages and payroll procedures to ensure that amounts which are paid to employees are sufficient and compliant under the relevant award or enterprise agreement;
    • ensure familiarity with the award/s and/or enterprise agreements which apply to employees, in order to readily identify (and quickly address) any instances of non-compliance;
    • ensure that proper record-keeping (to accord with the Fair Work legislation and regulations) is occurring;
    • ensure that proper care is taken when making decisions to an employee's detriment, ensuring that the decision-making process and appropriate reasons are adequately documented along the way; and
    • (also see below in this regard) ensure that good quality guidance and advice from expert professionals is available and sourced to assist when it comes to understanding and navigating the Fair Work legislation and regulations (and also awards and enterprise agreements where required), and managing appropriate risk.
  13. INTERNAL PROCEDURES: Review internal procedures where making decisions to an employee's detriment
  14. In 2016, in one of the largest general protections claims payouts to date, an employer (a subsidiary of Rio Tinto) was required to pay to an employee $1,272,109 for past and future loss of wages, plus $24,626 in interest, together with a penalty of $50,000 to the employee's Union, when it was found to have breached the general protections provisions of the Fair Work Act by standing an employee down just four days after he was awarded significant damages for a back injury which he had sustained some years earlier. The employer maintained that the employee was stood down only to protect health and safety, rather than for the reason alleged by the employee namely that he was stood down for exercising his workplace right to pursue the employer for damages arising from his injury, but was unable to prove to the court's satisfaction that the reason for standing the employee down was other than due to the exercise by the employee of the relevant workplace right4. Had the employer in this case appropriately documented the decision-making process when it came to the decision to stand the employee down and the reasons for it, the outcome of the case may well have been very different (thereby saving the employer about $1.3 million).

    ACTION: Employers should take good care when making decisions to an employee's detriment, ensuring that the decision-making process and appropriate reasons are adequately documented along the way. The review and implementation of appropriate processes to ensure that this occurs could save your business (and its individual decision-makers) significantly.

  15. GARDEN LEAVE & RESTRAINTS: Check and where necessary revise employment contracts which deal with garden leave and restraints
  16. In 2016, the NSW Supreme Court determined that the time served by a senior employee on garden leave did not count toward a prescribed restraint period under the terms of the employee's employment contract. Whilst the outcome of the case turned significantly upon the specific wording of the employment contract, the decision provided a useful lesson to employers using (or preparing) employment contracts containing garden leave and restraint provisions.

    ACTION: When using employment contracts containing garden leave and restraint provisions, employers should be: mindful of and properly reflect in the terms, the intended interaction between the two provisions; and, where the two are intended to operate "one after the other" (which is the usual intent of such clauses) to draw an express distinction between the termination of the employment contract and the cessation of duties.5

  17. REDUNDANCY: Beware prior service as a casual when implementing permanent staff redundancies and revise redundancy policies accordingly
  18. A Fair Work Commission majority, in 2016, controversially ruled that certain previous casual employment must be taken into account when calculating redundancy pay6. This represents a departure from the way in which redundancy pay has commonly been calculated, namely by reference to employees' part-time or full-time service only (and not previous casual employment). Relating only to situations where a permanent employee's role is redundant in circumstances where the employee has at some stage during their tenure transitioned from a casual role (and not to casual employees who have always, truly, been casual employees – as true casual employees are not entitled to redundancy pay in any event). This will have ramifications for some employers in relation to the implementation of certain redundancies.

    ACTION: Employers should consider redundancy practices and relevant implications carefully where casual-come-permanent employees are concerned. Any affected redundancy policy should also be suitably revised.

  19. FAIR WORK INFORMATION STATEMENTS: Ensure that the new Fair Work Information Statement is being used
  20. A new Fair Work Information Statement was introduced on 1 July 2016.

    ACTION: Employers should now be using this updated version of the Information Statement, accessible here:


1 Simone Jade Stewart v Next Residential Pty Ltd [2016] WAIRC 00756

2 McGowan v Direct Mail and Marketing Pty Ltd[2016] FCCA 2227

3 See, for instance, Kuczmarksi v Ascot Administration P/L [2016] SADC 65

4 CFMEU v Hail Creek Coal Pty Ltd [2016] FCA 1032

5 DP World Sydney Limited v Guy [2016] NSWSC 1072 (1 August 2016)

6 AMWU v Donau Pty Ltd [2016] FWCFB 3075 (15 August 2016)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Kemp Strang Lawyers
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Kemp Strang Lawyers
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions