WorkChoices - questions continue

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WorkChoices - questions continue

Writings on WorkplaceInfo explaining WorkChoices legislation consistently generate inquiries from subscribers. Here is a selection of some questions and answers on WorkChoices.

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Writings on WorkplaceInfo explaining WorkChoices legislation consistently generate inquiries from subscribers. Here is a selection of some questions and answers on WorkChoices.

For WorkChoices to apply the employer must be a constitutional corporation. Q&As on WorkChoices follow.

Leave without pay

Q. We have received a request from an employee to cash-out a portion of his annual leave. He works under a common law contract and I cannot find any provision for this under the 'Standard'. Is the cashing out of annual leave permissible under a common law employment contract?

A. Employees on leave without pay do accrue annual leave under WorkChoices. See this article on the issue of LWOP and leave accrual generally.

Q. We have received a request from an employee to cash-out a portion of his annual leave. He works under a common law contract and I cannot find any provision for this under the 'Standard'. Is the cashing out of annual leave permissible under a common law employment contract?

A. In relation to workers compensation, the answer varies in the different jurisdictions - see: Annual leave & workers compensation & WorkChoices. In relation to other forms of salary continuance, the relevant documentation providing for the continuance would have to be checked.

No notice by employee on resignation

Q. We have received a request from an employee to cash-out a portion of his annual leave. He works under a common law contract and I cannot find any provision for this under the 'Standard'. Is the cashing out of annual leave permissible under a common law employment contract?

A. The ACCI view that employers cannot require employees to give notice may be contentious, but even so the same end result occurs, as the WorkChoices legislation has failed to provide for employers to retain moneys owing to employees on termination. This effectively means that employees would have to be paid out all owing to them on termination even if they fail to provide notice.

Cashing-out annual leave of salaried staff

Q. We have received a request from an employee to cash-out a portion of his annual leave. He works under a common law contract and I cannot find any provision for this under the 'Standard'. Is the cashing out of annual leave permissible under a common law employment contract?

A. As State annual leave legislation does not permit cashing-out, the company would have to use a federal WorkChoices instrument to achieve this. The State annual leave legislation applies to common law contract employees, so to achieve a cashing-out a federal collective agreement or AWA would have to be the vehicle. This seems to be a formality that is difficult to avoid.

Note that WorkChoices instruments could have a very short life - eg a few weeks - and the cashing out could be achieved in this time. The WorkChoices instrument could then be formally terminated and the employees could return to common law contracts. This would have to be done with the employees' agreement.

As there is some administrative burden involved in achieving something that the OEA does not object to, there may be another way that is not obvious to us. The OEA may be able to assist if you wish to make a direct inquiry.

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