That is the experience of specialist SME lawyer Mark Gardiner of Teddington Legal, who says this is a reality for some employers who falsely believe their agreement trumps any pre-existing employment legislation.
“We’ve seen agreements that are unlawful. I read one just the other day, which said it would be a ground for dismissal if someone had an issue under the Mental Health Act. That would be straight out discrimination. That’s clearly a health issue and you can’t discriminate based on someone’s health,” explains Mark while speaking on the My Business Podcast.
According to Mark, it is important for any employer drawing up such agreements to know – and understand – what their legal obligations are, and then tailor the employment contract to suit the needs of the business under those obligations.
“It’s not like, say, a building contract where you need to specify everything. Employment relationships are governed by the act, but the Fair Work Act and what are called the National Employment Standards. So those pieces of legislation and regulation set out how many annual leave [days] you’re entitled to have, how many personal carers leave days, what are the maternity leave provisions [etc],” he says.
“To some extent, if they’re not in the employment agreement, it’s not so important because they are the law anyway.”
Employer rights and responsibilities can be quite a gray area for many, such as where the line sits between a business need and anti-discrimination rules.
Some aspects can be more straightforward, such as LGBTI awareness in business.
Others, however, can be either very subtle or simply downright confusing. The diverse range of articles on the My Business site demonstrate just how far this confusion can reach. For example:
• What can and can’t you ask in a job interview?
• Can you sack a worker for getting a tattoo?
• Where does an employee’s mental health fit with anti-discrimination as well as health and safety workplace requirements?
According to Mark, the simplest thing employers can do is to research the relevant state and federal government website for information on their obligations, or seek the expertise of an employment lawyer.
Mark has plenty more insights into the various legal queries and conundrums of people management and HR – including unfair dismissal, immigration and more – on the My Business Podcast below: