IR Q&A Issue 16

Posted 1 March 2019

IR Q&A Issue 16

Q: One of my employees hasn't attended work for just over a week? I've tried to contact her but to no avail. Does this constitute abandonment of employment? What else can I do?

A: This is a tricky situation but can result in an abandonment of employment. If you're concerned that the employee has 'abandoned' their employment, you should go through the following checklist before terminating employment on this basis:

Abandonment of Employment - Checklist

  • Has employee failed to present for work and offered no explanation? YES/NO
  • Are you unable to contact the employee through the usual channels and the absence persists for more than a few days? YES/NO

If you have answered yes to both questions above, abandonment of employment is possible.

  • You should again attempt to contact the employee to warn his/her employment is in jeopardy because of continued unexplained absence. If still no communication is received from the employee, prepare a document containing the following statements:
  • failure by the employee to present for work by specified date (e.g. 5 days from the date of the letter - but note some modern awards require the total unexplained absence to be at least 14 days) will be treated as abandonment of employment;
  • the employee has effectively terminated his/her own employment; and
  • the consequences will be the termination treated as a resignation without notice.
  • Send the document electronically if possible and also by registered post. If under 18, also send a copy of the notice to the employee's parent or next of kin.
  • If the employee fails to respond, proceed to treat the absence as an abandonment of employment and process the termination accordingly as a resignation without notice.

You should also keep notes of any attempts made to contact the employee on the employee file.

Q: What is the purpose of the Notice of Representational Rights in the enterprise agreement bargaining process?

A: An employer is obliged to take all reasonable steps to give employees notice of their rights to be represented by a bargaining representative during enterprise agreement bargaining. This is done by way of issuing the Notice of Representational Rights (NRR).

The contents of the NRR are prescribed in the Fair Work Regulations 2009 (Cth) and the purpose of the NRR is to explain to employees what an enterprise agreement is, the rights the employee has to be represented during the bargaining process, how and when the employee can appoint a bargaining representative as well as who their default bargaining representative is if the employee is a member of an employee association (i.e. a union).

The NRR is to be given as soon as practicable but no later than 14 days after the employer agrees to bargain or initiates bargaining for an agreement. If the NRR is not provided or if it does not consistent with Schedule 2.1 of the Regulations, it will be deemed invalid, resulting in the rejection of the application for the approval of the enterprise agreement.

Q: Following on from last week's question regarding SLJC, how can I check who has received their Secure Local Jobs Certificate?

A: The list of Code Certified Entities is available on the Secure Local Jobs website.

If you have any queries or would like to ask a question, please contact Legal Manager Kristie Burt on 6175 5919 or email kburt@mba.org.au

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