By Charles Power

I thought today would be a good chance to go over three recent employment law questions we have received here at the Bulletin – and show you how our experts at the helpdesk answered them.

Here goes:

1.  A pregnant employee has come to us with a medical certificate stating that she is unfit for work. She has requested to take this as paid sick leave. Should we grant her paid sick leave, or should she take special unpaid maternity leave instead?

An employee may use her accrued personal leave due to pregnancy-related illnesses.

Under the national employment standards, you can only require an employee to take unpaid parental leave if:

• the employee has complied with the notice and evidence requirements for unpaid parental leave;
• the transfer to a safe position provisions do not apply; and
• during the 6 week period before the expected birth of the child, you asked the employee to provide a medical certificate stating whether or not she was fit for work and, if so, whether she should or should not continue in her position. If the employee does not comply with this request within 7 days or the medical certificate says that the employee should not continue, you can require the employee to take unpaid parental leave.

If an employee has not been directed to take unpaid parental leave, then they would be entitled to take personal leave (paid or unpaid).

Remember, an employee has a separate entitlement to take unpaid special maternity leave if they have a pregnancy-related illness. An employee needs to give notice of their absence and the expected duration. The employee may also be required to give evidence that would satisfy a reasonable person that she has a pregnancy-related illness. However, this entitlement exists alongside an employee’s entitlement to take paid personal leave, which an employee may elect to take instead.

2.  We would like to introduce a pre-employment medical questionnaire as part of our employment application form. What kind of questions are we legally able to ask in such a questionnaire?

A pre-employment medical questionnaire may require disclosures relating to a prospective employee’s health/capacity provided that the questions relate to the inherent requirements of the position the employee will be hired to undertake.

You may wish to discuss whether there are any adjustments that the employee requires to be able to perform the inherent requirements of the job. The questionnaire could also warn an employee of the consequences of giving false/misleading information. For example, they may not be employed or they may be dismissed (if the employee has been employed already). It should also give assurances in relation to confidentiality/privacy and have acknowledgements that the employee has read and understood the role and the purpose of the questionnaire.

3.  What happens if an existing employee refuses to sign a new contract but they continue to work?

If an existing employee refuses to sign a new contract, the employee continues to be covered by his or her previous contract and must be permitted to work (unless a it is an expired fixed-term contract and the parties act consistently with that contract to end it at the conclusion of its fixed-term).

If you threaten to terminate an employee’s employment for refusing to sign a new contract, then you may expose your business to an unfair dismissal claim or an adverse action claim under the Fair Work Act. If you are seeking to introduce new conditions adverse to the employee, it is likely they will resist signing the new contract, particularly if there is no increase in remuneration.

However, if the employee raises no objection to the terms of the new contract and accepts the benefits provided under it, it is likely that they will be treated as accepting the contract by their conduct, despite their refusal to sign it.

If you are simply issuing an updated contract based on NES and modern award conditions, no legal issue will arise if you simply recognise these new conditions despite the employee’s refusal to sign the contract.

To find out the answers to more frequently asked employment law questions like these, keep an eye out for the Letters section in your next Employment Law Practical Handbook update. It’s due in your mailbox within the next couple of weeks!

And remember, as a paid-up subscriber to the handbook, you can access our Workplace Helpdesk service – where you email all your short employment law related questions to our team of experts and get an answer within 72 hours – for free!