AREEA employee relations consultant Con Deftereos summarises a recent FWC decision raised after a coal management group amended sick leave provisions to limit the use of statutory declarations in place of medical certificates.

The Facts

ON 5 March 2013, the Construction, Forestry, Mining and Energy Union (the CFMEU) filed an application with the Fair Work Commission (FWC) to resolve a dispute against Singleton-based Glennies Creek Coal Management Pty Limited (Glennies Creek) under the Integra Coal Operations Underground Coal Mine Agreement 2011 (the Agreement). The dispute concerned the implementation of a new policy introducing parameters around notification, proof and payment for sick and carers leave.

The employer, Glennies Creek, sought to implement a new Attendance Policy comprising greater restrictions on the use of statutory declarations as an employee’s proof for the purpose of taking sick leave. Those restrictions included:

• a limit to submitting three statutory declarations in any 12 month period;
• non-acceptance of statutory declarations for absences adjacent to public holidays or for absences of more than two days; and
• non-acceptance of statutory declarations where an employee has no sick leave entitlement remaining.

Under the prior policy, a medical certificate was required except in circumstances where it was not “reasonably practicable” to ascertain a certificate, in which case a statutory declaration could be provided instead. Reasons for the leave and why it was not “reasonably practicable” to ascertain a medical certificate were also required in accompaniment to statutory declarations.

The Decision

During the hearing, employees of Glennies Creek gave evidence of the difficulty in seeing a doctor at short notice for non-emergencies and/or on weekends in the Hunter Valley area, with 61 employees signing statements to that effect.

Commissioner Roberts handed down his decision with consideration given to the anecdotal evidence from employees and from the CFMEU regarding the difficulty of seeing a doctor at short notice.

However, the Commissioner found the employer’s new Attendance Policy was “not contrary either to the terms of the Agreement or to the National Employment Standards (NES)”, except where a limit of three statutory declarations applied in any twelve month period. Commissioner Roberts said the limit “is not enforceable as it is contrary to both the provisions of the Act and the Agreement”.

Implications for employers

This case demonstrates that an employer does have the capacity to restrict the use of statutory declarations by employees for the purposes of accessing sick leave entitlements under the applicable industrial agreement.

In these circumstances, employers must ensure such restrictions are not contrary to the provisions of the Fair Work Act 2009 or the applicable agreement and that consideration is given to influential elements such as an employee’s ability to access a doctor at short notice or on weekends.

Finally, although the employer’s consultation with employees was not disputed by the CFMEU, this decision is a reminder of how important it is for employers to comply with any consultation provisions under the applicable industrial instrument when introducing certain changes to policies and procedures.

AREEA has extensive experience in providing advice on establishing new and fully compliant workplace policies, and can support members through the consultation process of implementing change.

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