First of all the Fair Work Act itself as it applies to Federal system employers is silent on the use of probationary periods, having said this they still feature prominently in employment contract documentation and are still lawful. The FW Act deals instead with two statutory periods of time where employers have protection from an unfair dismissal claim (UFD). This is 12 months for employers with less than 15 staff and 6 months for employers with 15 or more staff. It is increasingly common practice for contract documentation to adopt a standard 6 month period for the use of the probationary period whether a large or small employee.

Probationary periods of employment are not really applicable to casual engagements, this is because the notice period for a casual is one hour and if a casual employee is unsuitable then you can simply invoke termination. Casual employees have no power to take an UFD in either the Federal or State jurisdictions. However we are seeing many employers opting to engage new staff on a ‘trial period of employment’ basis as a casual, employer’s should also be mindful that the trial period should be limited to a few weeks only, especially as the working hours on this basis are more likely to be fulltime or part time.

Remember that a probationary period of employment can only be utilised from the first date of employment of a new employee, we often see employers and managers requiring a ‘probationary period’ of employment for existing staff (who are well into their employment term) upon being offered a promotion or higher duties position subject to ‘probation’. This is incorrect, and employers should instead offer a ‘trial’ period of employment in the new role and make sure this is in writing with a specified period for the trial and some clear success measures established so that your employee understands what needs to be achieved during that time. The use of the word ‘probationary’ in these circumstances is misguided and has no application when you understand the term fully.

Another question with regard to casual employees relates to their Long Service Leave accrual once they are appointed on a more permanent basis. LSL accrual would be calculated from the date the employee started work (including their time as a casual employee) whilst annual leave and personal leave accruals would start only from the date they changed their classification to fulltime or part time. This is because casual employees are paid a casual loading in substitution of payment for all forms of paid leave (yes casuals DO accrue LSL!). Don’t forget that if an employee changes their classification eg casual to fulltime, they should also complete a new Tax Declaration From to replace the original one where they indicated they were a casual employee.

Finally our experience tells us that many employers are really bad at appraising their probationary staff to assess their suitability for ongoing employment. Use this period wisely, have a formal performance management plan set up and understood by the parties, meet regularly with your employee and keep written records to support your decisions. Follow up in writing to the employee after any counselling meeting good or bad – you might be surprised at the number of times we get a call requesting assistance in terminating or managing an employee who has just completed their probationary period!

Need help? Call us for assistance.

The information contained in this article does not constitute and should not be relied upon as ‘legal advice’. Workwise recommends that legal advice be sought from a suitably qualified legal practitioner prior to any action being taken. Such advice may be accessed via Workwise.

STOP PRESS – Workwise will shortly be presenting a ‘Breakfast Seminar’ on the 12th August in Bunbury with special guest speaker ‘Tony Beech’ retiring Chief Commission of the West Australian Industrial Relations Commission. Other than the cost for a plated breakfast this presentation is complimentary for all Workwise members. Watch out for your invitation which will be sent out very soon.

A number of Members are still utilising employment application forms that include a series of health and medical questions which are putting their businesses or organisations at risk of breaching Australian legislation.

In fact, it is so prevalent that Workwise has felt the need to strongly advise all of its members to review their application forms and recruitment processes immediately and take the required steps to mitigate the risk that you are exposed to.

Asking health and medical questions that have no bearing on the inherent requirements of the job leave you open to very significant legal risk due to breaches of the Disability Discrimination Act 1992 (Cth) which applies to employers in every state of Australia.

Yes, employers can ask questions, however it is critical that you can explain why the question is being asked and what you are going to do with that information.  If you are asking the question to unlawfully discriminate, a claim of discrimination may be brought against you which would need to be vigorously defended.

Asking such questions as “Do you smoke and if so, how many do you smoke a day?”; or “Do you drink alcohol and if so how many glasses a day/week/month?”; or “Do you have any physical disability?” are fraught with great risk to your business.

Chevron, with all of its available resources was in 2013 taken to task publicly across the country for including intrusive and personal questions on its pre-employment medical history form.

How many employers are qualified to make a medical determination on whether or not someone who can run 100 metres is fit to undertake the duties of a specific job role?  (yes, we have seen this question) The answer is – not many.

As employers, are you proactively working with your preferred medical practitioner or occupational physiologist to determine what specific medical circumstances or level of fitness will be required in the role you are advertising.  Such information is critical in order for you to use the answers on your questionnaire to lawfully eliminate applicants from your selection process.

The Disability Discrimination Act 1992 (Cth) (the Act) does include two “exemptions”:

•  “inherent requirements” and
• “unjustifiable hardship”

To avoid a claim of discrimination being levelled, you must:

1.  be able to show that because of the applicants disability, they would not be able to undertake the inherent requirements of the work required to be performed; and
2.  be able to show that the business will suffer or have imposed upon it an unjustifiable hardship for example financial hardship of significant proportions.

In understanding your obligations as an employer in relation to the Act, you must first understand the object of the Act itself:

(a)  to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:

        (i)    work, accommodation, education, access to premises, clubs and sport; and

       (ii)    the provision of goods, facilities, services and land; and

       (iii)   existing laws; and

       (iv)   the administration of Commonwealth laws and programs; and

(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and

(c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.

The message of this E-Bulletin is to prompt all of our Members to immediately review and consider the following with the above knowledge in mind:

1.  the questions you are asking in your pre-employment documentation;
2. know what your obligations are in regard to the Act; and
3. consider any gaps in the skills and abilities of those people involved in your recruitment and selection processes and do something about having them trained or seek appropriate assistance during the recruitment process.

As usual, if you have any doubts whatsoever about your documentation or current practices, contact Workwise on 9792 4451 immediately so that we can assist you to identify and mitigate risks.

The information contained in this article does not constitute and should not be relied upon as ‘legal advice’. Workwise recommends that legal advice be sought from a suitably qualified legal practitioner prior to any action being taken. Such advice may be accessed via Workwise’s legal services.