Trying to Over-Regulate Sick Leave

CFMEU v Glennies Creek Coal Management Pty Ltd [2013] FWC 4652 (18 July 2013)

CFMEU v Glennies Creek Coal Management Pty Ltd [2013] FWC 4652 (18 July 2013)

When a coal mining company in the Hunter Valley tried to limit the number of statutory declarations employees could supply as sick leave evidence in one year, the Fair Work Commission (FWC) intervened. FWC said the new policy, if implemented, would breach the Fair Work Act because it was contrary to the relevant National Employment Standard (NES).

The problem of regulating sick leave is a vexed one, and this employer decided that employees could use statutory declarations as evidence of genuine sickness on a maximum of three occasions each year of service. Clearly the company was trying to control the use of sick leave and set these limits as part of their sick leave management program.

But the employees countered that their locality meant often they could not get to see a doctor in time to meet other sick leave evidence requirements, so the employees were aggrieved by this policy decision. They took their complaint to FWC and FWC agreed.

FWC pointed out that the NES did not prevent an employer from requiring evidence satisfactory to the employer on each and every occasion that sick leave is claimed, however the obvious corollary of the new policy was that on the fourth occasion a statutory declaration would be presented, the employer would unilaterally refuse to acknowledge an entitlement, regardless of the particular circumstances.

This, FWC said, was contrary to the NES because why would the situation be any different, inherently, on the fourth occasion from the third, or second? The policy failed the basic logic test.

The decision highlights the difficulty for employers to manage sick leave, especially where it suspects abuse. FWC will not be of much help. Even enterprise agreements may not allow employers to have this type of policy because of the argument it offends the NES. If this decision stands, it means that the NES effectively prevents employers from developing stricter policies to prevent sick leave abuses.