Since I have been working at the RTBU I have noticed a string of issues related to employees accessing their personal leave entitlements.
Most employees have an entitlement to personal leave because they are legislated for under the National Employment Standards in the Fair Work Act 2009 (Cth).
Despite these clear legislative entitlements, many companies employ a range of tricks to stop employees from accessing their personal leave. These include attempts to discourage our members from taking leave or even refusing to process personal leave requests and insisting that annual leave be used instead.
What follows are a couple of the tactics employers have been using and what you can do if it happens to you.
The wellness check approach
This tricky little ploy starts off with a seemly warm and fuzzy conversation from a manager (who is quite often a reluctant participant). However, it quickly progresses to combination of asking very personal questions and emotional blackmail by implying that you are not a “team-player”.
This type of approach is incredibly frustrating because they are underhanded and very poorly thought out. There are endless, very good reasons why it is not a good idea for someone sick to be at work including: safety, prolonged health issues, spreading germs and productivity loss.
So, what can you do? Firstly, know your rights. If you work full-time, and you are not a casual employee, you are entitled to 10 days personal/carer’s leave. Part-time employees are entitled to a pro-rata amount based on their hours of work.
If your employer starts asking you personal questions about your health you have a right to simply state: “I do not wish to answer any questions regarding the nature of my illness.” The Australian Medical Association states that “employers should recognise the right of employees to keep details of their medical condition confidential”.
The specious legal reasoning approach
I am seeing a steady trickle of incidents involving companies that are simply refusing a request for personal leave and insisting that the employee use annual or unpaid leave. Companies seem to be spending a lot of time and energy looking for loopholes in enterprise agreement clauses to justify this approach.
It is simply unacceptable to see companies refusing our members access to their personal leave when they genuinely need it. If this happens to you, you should contact your organiser or the RTBU Office on 8630 9100.
There are some, albeit rare, cases where an employee does get tripped up. Again, it’s important to be aware of your rights and obligations. Some enterprise agreements may require a medical certificate if you’ve been sick more that a specified number of days in a year. This requirement varies from agreement to agreement so check your agreement or ask your delegate or organiser for help.
You also may have seen media reports of employees who call in sick and then post pictures of themselves at the cricket with accompanying posts which make it clear that they are not, in fact, sick. Thankfully, I haven’t had an RTBU member come to me with a problem like that and I hope I never do because I have never seen a legal defence that has worked in those circumstances!