Sick leave & WorkChoices Bill

Analysis

Sick leave & WorkChoices Bill

Recent comments in the media by the union movement have stated that a medical certificate will now have to be produced by an employee to justify any claim for paid sick leave, including single days.

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Recent comments in the media by the union movement have stated that a medical certificate will now have to be produced by an employee to justify any claim for paid sick leave, including single days. Subsequently, the union movement have claimed this will result in the erosion of minimum sick leave entitlements for all employees. This article clarifies the issue.

Contradicting the union position, the Federal Government has said the amendment does not intend this to occur, rather it leaves the question of medical certificates for the employer to decide.

While it could be said that both sides have a point, depending on the circumstances, it is important to look at all the possibilities which may occur if the bill is legislated.

The claims

The union movement has claimed that the workplace relations amendment Bill, if legislated, will require an employee to produce a medical certificate for any period of absence due to an employee's personal illness or injury.

Unions have referred to a common current provision in federal and state awards and agreements which allow an employee to take (say) two single day absences during the course of the year, for the purpose of taking sick leave, without the need to produce a medical certificate.

The unions are claiming the proposed legislation will override these provisions, placing a greater burden on employees with respect to the production of necessary evidence to qualify for sick leave. The Minister for Employment and Workplace Relations has said that the amendment does not require the employee to produce a medical certificate. So what is the situation with this issue?

Proposed legislation

Section 93N of the Workplace Relations (WorkChoices) Bill 2005 refers to 'evidence requirements' which an employee may be required to comply with to become entitled to paid sick leave. In the case the production of a medical certificate, the relevant section states 'this section applies if an employer requires his or her employee to give the employer a medical certificate in relation to a period of sick leave taken (or to be taken) by the employee.'

Employer has right to request

The proposed provision does not require the employee to automatically produce a medical certificate to be entitled to sick leave, however, it does give the employer the right to request it at their discretion. Consequently, it is the employer's decision, in a particular instance, whether the employee will be required to produce a medical certificate to qualify for payment of sick leave.

Employee's obligation to produce certificate

The proposed legislation also places other requirements on the employee, where the employer requires the production of a medical certificate. The medical certificate must be given to the employer as soon as reasonably practicable (which may be at a time before or after the sick leave has started), and the medical certificate must include a statement to the effect that, in the medical practitioner's opinion, the employee was, is, or will be unfit for work during the period because of personal illness or injury.

The requirement to produce a medical certificate does not apply to an employee who could not comply with it because of circumstances beyond the employee's control.

Current award/agreement provisions and other evidence

As the unions have indicated, industrial instruments generally provide that an employee is entitled to a number of single day absences, usually two per year, which do not require the production of a medical certificate indicating an inability to attend for work.

This provision does not give an employee an unfettered right to take such leave on a whim, the employer being able to request other evidence justifying the absence, however, the industrial courts and tribunals have usually determined that the right of an employer to demand a medical certificate for any absence, including single days, is at the discretion of the employer. The tribunals have further determined that to do so in every instance would be unreasonable and that employers should refrain from putting employees unnecessarily to the expense of incurring medical expenses.

Future possibilities on proof of sickness

The impact of the proposed legislation on existing employment arrangements is still the subject of some conjecture. While the requirement to produce a medical certificate for any absence for sick leave is a minimum standard under the proposed legislation, more generous provisions contained in an award are expected to prevail over the statutory minimum standard. It is expected, therefore, that the single day absence entitlement, where provided for in a particular award, will be preserved.

An employee under a current federal agreement which provides for single day absences for sick leave will continue to receive the benefits of the provision.

New agreements - the real issue

It is agreements negotiated under the new system which will be exposed to the proposed minimum sick leave standard, unless otherwise determined by the parties to the agreement (including an Australian Workplace Agreement).

The bill, if legislated, may not have an immediate impact on an employee's conditions of employment in these circumstances, but may ultimately affect an employee's entitlements.

Related

Analysis of Federal Workplace Relations Amendment (WorkChoices) Bill 2005

 

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