The rules around sick leave for more than a million shift workers have been challenged and sparked intervention from the federal government.
Now, the Fair Work Ombudsman (FWO) must correct the “misleading advice” it has been giving to employers, which the Fair Work Commission had contradicted.
Ed Mallett, founder and managing director of workplace relations firm Employsure, representing over 21,000 SMEs says the complexity of the system is its Achilles heel:
“We know very well in this heavily red taped workplace relations system that employers – particularly small business – simply cannot afford to slip up. One misinformed error can be the end of what they have worked tirelessly to achieve.”
Every employer with shift workers must be aware that they may have inadvertently got it wrong. Back paying staff is a greater burden than just financial – with employers potentially required to review their records as far back as seven years, even if employees are no longer with their business: “Employees may claim the unpaid sick leave entitlement as far back as seven years if they were required to take unpaid leave to cover periods of doctor-supported illness.”
“It is possible that employers could be forced to back-pay sick leave; although it seems the onus of proof would be on the employee. We are keen to see what the Federal Court rules and further, how the claim process will roll out,” he said.