Australia: An essential What to Do guide to common employment issues for caravan park operators

A vital tool for all caravan park operators.

  1. What to do when a full/part time employee has a lot of accrued leave and you want them to take it?

In accordance with the Hospitality Industry (General) Award 2010 (Hospitality Award), if a full/part time employee has more than eight weeks of accrued annual leave:

  • you may seek to reach an agreement with the employee on how to reduce or eliminate the annual leave; and
  • if you have tried to genuinely reach agreement with the employee on how to reduce or eliminate the annual leave but no agreement is reached, you may direct the employee, in writing, to take a period of paid annual leave, provided that:
    • it would not result in the employee's remaining accrued annual leave being less than six weeks;
    • the period of paid annual leave that the employee is directed to take must not be less than one week; and
    • you must not require the employee to take the period of paid annual leave either less than eight weeks or more than 12 months after the written direction is given.
  1. What to do when a full/part time employee asks to "cash out" their annual leave?

If a full/part time employee covered by the Hospitality Award asks to "cash out" their annual leave, you are entitled (but not required) to agree to this request, provided that:

  • you enter into a signed written agreement with the employee regarding the "cashing out";
  • the employee will have a balance of at least four weeks' annual leave remaining after they have "cashed out"; and
  • the employee does not cash out more than two weeks in any 12 month period.
  1. What to do when you think an employee may have abandoned their employment

When an employee does not attend work and does not seek approval, or provide reason/s, for their failure to attend work, you do not have an automatic right to terminate their employment. Before you can proceed to dismiss the employee, you must make genuine attempts to contact the employee and understand the reason/s for their absence.

What constitutes a genuine attempt? This can be as simple as making reasonable attempts (dictated by common sense) to contact the employee to explain their absence.

  1. What to do when you are planning a staff party?
  • Specify clear start and end times of the party.
  • If serving alcohol, ensure alcohol is served responsibly and not after the designated end time. Non-alcoholic drinks and food should also be available.
  • Nominate a designated "sober" person to monitor the revelries and, if required, take appropriate action.
  • If an employee is 'acting up' at the function, make sure you 'nip it in the bud' immediately.
  • Ensure that safe transportation home is available and advise employees that they should not drive if they are intending on drinking.
  • Remind employees of any workplace policies, distribute the relevant policies (if applicable) and warn employees about the consequences of unacceptable behaviour.
  1. What to do when you need to temporarily replace an employee who is on parental leave?

Before engaging an employee to perform the work of another employee who is taking parental leave, you must notify the replacement employee:

  • that the engagement to perform work is temporary;
  • of the rights that the parental leave employee has (as set out in subsections 77A(2) to (6) of the Fair Work Act 2009 (Cth) (FW Act));
  • that the parental leave employee is entitled to a return to work guarantee;
  • of the effect of section 78 of the FW Act which provides the employer with a right to require the employee taking unpaid parental leave to return to work if the employee ceases to have any responsibility for the care of the child.
  1. What to do when an employee may have engaged in misconduct?

Subject to any disciplinary policy which your workplace may have in place (which could vary the process), the following is a "what to do" guide:

  1. What to do when an employee injures themselves at work?
  • Ensure the injured employee seeks medical treatment.
  • Immediately notify WorkSafe of the incident if it has, or could have, caused serious injury or death to the employee.
  • Record the injury in your Register of Injuries.
  • If the employee is not able to return to their normal duties, look for tasks that
  • your worker can do (subject at all times to medical advice) and discuss with them.
  • Keep in touch with the injured worker if they are absent from work for a period of time to recover.
  1. What to do when an employee lodges a workers compensation claim for an injury that did not occur at, and is not related to, work?

If an employee lodges a worker's compensation claim for an injury that did not occur at, and is not related to, work you should:

  • immediately notify the (workers compensation) insurer that you dispute it;
  • send written correspondence to the insurer detailing your objection to the claim and providing all relevant information and documentation as soon as practicable after being notified of the claim; and
  • keep in contact with the insurer during the period that the insurer is assessing whether it will accept or reject the claim.
  1. What to do when you need a full/part time employee to work on a public holiday?

In accordance with the National Employment Standards (with which, generally, all employers in Australia must comply):

  • you may request a full/part time employee to work on a public holiday provided the request is reasonable; and
  • a full/part time employee may refuse any reasonable request if the refusal is reasonable.

In determining whether a request, or refusal, is reasonable, a number of factors must be taken into account including the nature of the workplace and employee's work; the employee's personal circumstances (such as whether the employee has family responsibilities); whether the employee could reasonably expect a request to work (for example, does their employment contract give such an expectation? Tip: it should); whether the employee's entitlements reflect an expectation to work public holidays (for example, whether the employee receives payment of penalty rates); the amount of notice given (both of being required to work and of any refusal), and the type of employment (full time, part time, casual).

  1. 10. What to do when an employee or former employee requests to have access to their employee records?

You are obliged to make copies of an employee's records available at the request of an employee or former employee (noting that you are required to keep employee records for seven years).

In accordance with your record keeping obligations under the FW Act, you must maintain records relating to the employee's name, commencement date and the basis of the employee's employment (full or part time and permanent, temporary or casual), records relating to pay, leave, superannuation contributions, termination, individual flexibility arrangements and/or guarantees of annual earnings.

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.

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