Those changes are now law, and because of their importance, set out is a quick summary of the amendments as they were finally passed:
The change receiving the most media attention has been the extension of the 90 day trial period to all employers. Some key points to note are:
• The 90 day trial period must be included in the employee’s employment agreement, from the commencement of employment. That means, from the employee’s first day. Practically speaking, this means employers must ensure employees receive, read, sign and return a copy of their employment agreement before they commence work. Signing after day one probably renders the trial period unenforceable.
• The effect of a 90 day trial period is that, in the event the employee is dismissed during the trial period, the employee is not entitled to bring a personal grievance or other legal proceedings in relation to the dismissal (although the employee remains entitled to pursue a claim for disadvantage and/or discrimination).
• Quite specific wording must be used to ensure the trial period clause is lawful. If in doubt, you should obtain legal advice.
Unions now need to request permission to access a workplace, whereas previously the employer’s consent was usually unnecessary. However, while this is a very significant change, employers are not able to unreasonably withhold their consent and in the event that they do decline a request for access, they must provide reasons in writing within one day of the request.
The wording of the statutory test for a justified dismissal has changed from “would” to “could”. That is, the test is now: is it a decision a fair and reasonable employer “could” have made, in all the circumstances rather than a decision that employer “would” have made. The rationale behind the change is that where dismissal is one of a range of reasonable options a reasonable employer “could” reach, then the dismissal should be lawful.
Holidays: cashing up annual leave, transferring holidays and calculating relevant daily pay
Employees can now request up to one week of their annual leave be “cashed up”. Employers are not required to agree to this request nor provide reasons for any decision to decline, but they must respond to applications in a reasonable time. Importantly, the requests must come from the employee and cannot be initiated in advance by the employer, including through the employee’s employment agreement. The leave must also have already accrued which means that it must be leave that they became entitled to but have not used since their last anniversary date.
There is now a clear right to transfer the observance of a public holiday. This might occur where an employee of a particular nationality or religion wishes to transfer say Christmas Day, to a day he/she considers more appropriate. As with the cashing up of annual leave, employees can apply to observe all or part of a public holiday on another working day, but there is no requirement that an employer agrees to such a request and it can even have a policy that it not transfer days.
The Act also introduces a new concept of “Average Daily Pay” that employers can rely on, when it is not possible to accurately determine “Relevant Daily Pay”.
Finally, there is an increased ability for employers to require proof of illness or injury in respect of any absence. Previously, employers could only require proof for absences of more than three consecutive calendar days, or less if there was “reasonable suspicion” the leave being taken wasn’t genuine. Now, an employer can require proof of sickness or injury from the first day of absence. However, the limiting factor is that the employer must meet the reasonable costs associated with obtaining that proof.
While concern has been expressed in the media that employees will now be made to go and see a doctor even for relatively minor ailments, we are confident that common sense will prevail in most cases.
Now that these changes have taken effect, the time is probably right to review your policies and your employment agreements (particularly for new staff) to ensure they reflect these changes.