This e-bulletin has been prompted by an inquiry from one of our long-standing clients regarding their ability to support an employee who is in his first year as an Australian Defence Forces Reservist.
Specifically the query related to the leave that this particular employee may or may not be entitled to and whether or not that leave is paid or unpaid. It is a good question and as is usual with IR matters, the answers can only be made clear after an investigation of specific circumstances.
Let us say at the outset that there is a very good web site and resources available, including a draft template Leave Policy specifically related to Reservists and we encourage Workwise clients to make use of the resources and information available at: http://www.defencereservessupport.gov.au/
The Defence Reserve Support Council has provided advice in developing the policy and is endorsed by peak Australian bodies including the Australian Human Resources Institute, ACTU, ACCI and the Australian Industry Group (AiGroup) as well as other peak industry, professional and community groups.
As far as legislation is concerned there are two major players: The Fair Work Act 2009 (see the National Employment Standards) and the Defence Reserve Service (Protection) Act 2001.
The third player is you, the Employer. You should know your legal obligations first and make a commercial business decision about how you will support Reservists in your employ.
While under certain circumstances you are obliged to provide your Reservist with authorised leave, you are not actually obliged to pay the employee for the time he/she has off to attend Reservist duties. You should know that if the Reservist is called up for duty, that annual leave and other entitlements continue to accrue during his/her absence.
Of course, your employee may wish to utilise his/her entitlement to paid Annual Leave to undertake Reservist training but any other time over and above the paid annual leave entitlement may be taken as leave without pay, part of long service leave entitlement, other form of accrued leave entitlement or a combination of these to cover the period of absence – this is a commercial business decision that you, as an employer, will be required to make. We would recommend that you consider these decisions as part of your company policy review before you receive a request from an employee who is a Reservist. Making policy on the run is never a wise move.
You should also know that employers may be eligible for the Employer Support Payment Scheme and again, we would recommend that all Workwise clients utilise the link to the Defence Reserve Support web site for specific information.
And finally, employers also need to be aware that it would potentially be a breach of the Defence Reserve Service (Protection) Act 2001 to:
• Require the employee to take annual leave concurrently with leave for defence service; (check Part 5, Div 2, Section 25 of the Act)
• Discriminate against or refuse employment because the person currently is, has or may in the future, volunteer to render defence service
• Dismiss an employee for a prohibited reason whilst on defence service
As with your Reservists, we stand ready to serve and if you require any assistance with the development of your Leave Policy or any other company policy, contact our office on 9792 4451.
Workwise supports your support of Defence Force Reservists (well Karina does anyway!!) he he he he.