11 November 2021

Commission rejects Home Affairs bid to crack down on 'sickies'

| Ian Bushnell
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Michael pezzullo

Home Affairs Secretary Michael Pezzullo: Will enterprise bargaining be the next step? Photo: IPAA ACT.

The Department of Home Affairs may have failed to make the winner’s circle in a bid to tighten its staff leave rules but a Fair Work Commission reference to the Melbourne Cup could encourage it to have another tilt.

Home Affairs had wanted its staff to have to provide evidence of the need when taking less than three days personal/carer leave, in April issuing a procedural instruction (PI) called the Unplanned Leave Procedural Instruction.

The public sector union took the matter to FWC, arguing it was inconsistent with clause 4.68 of the Home Affairs Workplace Determination set by the FWC in 2019, which allows employees to take up to three days of personal/carer’s leave without having to produce documentary evidence.

Home Affairs argued they should be read together but the FWC decision handed down on Tuesday disagreed.

“Allowing the Department to require evidence for lesser periods defeats the purpose of clause 4.68. Consequently, such a construction must be rejected. It is not consistent with a proper interpretation of clause 4.68,” the FWC said.

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But the FWC also said there were no doubt good management reasons for what was proposed in the PI.

“As this decision is published on Melbourne Cup Day 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,” it said.

The FWC suggested Home Affairs could have another crack via enterprise bargaining.

“If the department wants to change the operation of the Workplace Determination, it is a matter for it to again advance the case for such a change (in line with what it is attempting to do under the PI),” it said.

“Noting that the Workplace Determination has passed its nominal expiry date the Department could advance such a claim in the context of enterprise bargaining.”

CPSU Deputy National Secretary Brooke Muscat said this was not about sick leave but yet another attempt by Home Affairs to circumvent the conditions in the determination.

“CPSU members want the department to follow the Workplace Determination and stop trying to undermine workers’ rights through policy,” she said.

Ms Muscat said the commission had laid out where the department could go if it wanted to make changes and that was through enterprise bargaining.

“The CPSU would welcome the opportunity to bargain with the department, but until such time as this happens, we expect the department to comply with the WD.”

This is the third FWC decision to go against Home Affairs this year. In July, it had its bid to introduce a contentious new dress code for staff without consulting them knocked back for a second time.

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