Australia: If your employee does not attend work, have they abandoned their employment?

Last Updated: 7 March 2018
Article by Greg McCann

IN BRIEF - EMPLOYERS SHOULD REVIEW WORDING OF THEIR ABANDONMENT OF EMPLOYMENT CLAUSES

The Fair Work Commission (FWC) will determine a standard replacement provision for abandonment of employment clauses in six modern awards after finding that these clauses are inconsistent with the Fair Work Act 2009.

MODERN AWARDS REVIEW AND DECISION IN BIENIAS V IPLEX PIPELINES AUSTRALIA

In a recent decision of the FWC, the Full Bench undertook as part of its four year review of modern awards, the review of the issue of abandonment of employment in the following six modern awards:

  1. Manufacturing Award
  2. Business Equipment Award
  3. Contract Call Centres Award
  4. The Graphic Arts Printing and Publishing Award
  5. The Nursery Award, and
  6. The Wool Storage, Sampling and Testing Award

This review was undertaken in conjunction with the recent Full Bench decision of Bienias v Iplex Pipelines Australia Pty Ltd [2017] FWCFB 38 (Iplex) where the Full Bench had determined that the clause of abandonment of employment in the Manufacturing Award was not a term that was either permitted or required to be in a modern award, pursuant to the Fair Work Act.

Clause 21 in the Manufacturing Award stated:

The absence of an employee from work for a continuous period exceeding three working days without the consent of the employer and without notification to the employer is prima facie evidence that the employee has abandoned their employment.

The Full Bench determined that the particular clause in this Award did not terminate the employment arrangement. What the clause achieved was a minimal process which required the employer to undertake some measure of consultation or attempted consultation with the employee.

The Full Bench concluded that the clause in the Manufacturing Award, which was interpreted in the Iplex decision, is not a term permitted or required to be included in a modern award, pursuant to the Fair Work Act.

The Iplex matter concerned whether an employee whose employer considered he had abandoned his employment had been dismissed pursuant to the Fair Work Act. In the decision at first instance, it was determined there was no dismissal as Clause 21 operated to terminate the employment.

On appeal, it was held that the termination was based on a misconstruction of Clause 21 and that the employer must take a further step before it can terminate. The employer:

  • "Must take the positive step of concluding that it is not satisfied that the employee was absent for reasonable cause...", (at [38]) and,
  • Once the employer is so satisfied, the employer must act to terminate the employee's employment.

The Court did find that there would be utility in the Manufacturing Award including a provision which identifies procedures to be followed in the event that there is an extended and unexplained absence from duty on the part of the employee. The Court held:

this would primarily be concerned with the steps the employer might take to attempt to consult with the employee about the reasons for the absence before taking action against the employee.

REVIEW ABANDONMENT OF EMPLOYMENT CLAUSES IN ENTERPRISE AGREEMENTS AND EMPLOYMENT CONTRACTS

The FWC determined that the abandonment of employment clauses in each of the six awards were inconsistent with the Fair Work Act and will be deleted once a standard replacement provision has been determined.

Until a standard replacement provision is agreed, we recommend that employers undertake an assessment of their agreements and contracts to ensure that this particular issue of abandonment of employment is couched in the appropriate terms.

Greg McCann
Workplace relations
Colin Biggers & Paisley

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.

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