The Fair Work Commission has ruled against a Department of Home Affairs bid to ask staff to prove why they took small amounts of personal or carers leave.
The department told staff in April that managers would be allowed to request documentary evidence from employees when they were absent from work for fewer than three days.
The instruction said that managers “may identify a pattern of absence over an extended period of time” and listed examples such as around sporting events and public holidays.
But the Community and Public Sector Union challenged the move, arguing it was inconsistent with a determination in the enterprise bargaining agreement that allowed less than three days leave without producing documents.
Lawyers for the department argued the EBA’s provision of three days leave without documentary evidence was not an entitlement and the proposal to ask staff for evidence was not inconsistent with the EBA.
They also argued that, given employees could only take leave for certain reasons, it was inconsistent that the department could not test and confirm the basis of the reasons.
But the full bench of the commission found it was “not satisfied as to the merits” of the instruction.
Commissioner Leigh Johns, who made the decision on Melbourne Cup Day, did not let the irony slide when handing down the decision.
“It might be envisaged that a number of workers were ‘sick’ yesterday (thus giving them a 4-day long weekend), or may be ‘sick’ tomorrow celebrating the very elegant win by the winner of the Melbourne Cup,” Johns wrote.
“However, the workplace determination does not allow for requests for evidence of less than three days.”
He noted that, if the department wanted to propose to change the three-day threshold for providing evidence when absent, it could advance the claim through enterprise bargaining.
A nominal expiry date for the department to negotiate a new EBA has passed.
The CPSU told The Mandarin the issue was not about sick leave but an attempt to circumvent agreed working conditions.
The union said it would welcome the opportunity to bargain with the department, but until then expected compliance with the working conditions.
The Department of Home Affairs said through a spokesperson it was reviewing the decision to determine its next steps.
“The provision that was the subject of the FWC decision was included in a revised procedural instruction which is the subject of consultation with staff. The revised procedural instruction has not been implemented,” the spokesperson said.
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