This piece focusing on conditions of employment is the second part of a series of employment law articles by Whitehall Workplace Law discussing some of the legal and practical matters small businesses ought to consider in relation to the employment life cycle of an employee, that is, from the recruitment stage to the employee ceasing to be employed. Part one of the series published on 6 April 2017 concerned properly characterising your workforce.
A common misconception for businesses is that the contract of employment is supreme when it comes to an employee’s conditions of employment. This is not the case. While the terms of the contract of employment are of vital importance, the contract cannot reduce or override an employee’s statutory rights. The Fair Work Act 2009 (Cth) (FW Act) provides a mechanism for setting a national minimum wage which all employers must comply with and the FW Act contains a number of National Employment Standards (NES),s which generally apply to all employees regardless of their pay or position and will prevail over inconsistent contractual terms. These standards concern matters such as working hours, leave entitlements and notice of termination entitlements.
An employee may also be covered by a modern award. Modern awards are industry or occupation based and further regulate conditions of employment and the relationship between the employer and the employee. Determining whether a modern award applies to an employee will be dependent upon the nature of your business and the work performed. Like the NES, a modern award will set out a number of minimum employee entitlements, but they are generally more favourable and often go beyond the entitlements set out in the NES.
As an employee’s entitlements under a modern award will also prevail over any inconsistent contractual terms it is essential for the business to determine whether an employee is covered by a modern award.
Businesses nowadays are commonly seeking to be more rigorous in assessing a job applicant’s suitability for the position and the business, not just from a proficiency standpoint but also from a behavioural perspective, and understandably so given the cost to the business where an employee turns out to be ill-suited for the position or the business. A business can perform a number of pre-employment checks, such as, contacting references, performing a criminal record check and requiring an applicant to undergo behavioural, drug and medical testing.
However, insofar as pre-employment medical, drug and behavioural testing is concerned, it is essential that those tests are only utilised when absolutely necessary to assess the applicant’s ability to perform the inherent requirements of the position. To do otherwise and then reject an applicant because, for example, the results of the testing reveal the applicant suffers from a mental health condition (which is unrelated to adequate performance of the job) is likely to cause the business to contravene State and Federal anti-discrimination law in addition to the “adverse action” provisions of the FW Act. It is important that employers tread very carefully with pre-employment testing and be clear on the specific purpose of testing before it begins.
Jeremy Cousins, Principal, Whitehall Workplace Law