Can the FWC make orders about attendance management policies?

The FWC does not have a dedicated 'attendance management' jurisdiction, but several FWC jurisdictions can be used to challenge unreasonable attendance management policies. These include the stop-bullying jurisdiction (Part 6-4B), the stop-sexual-harassment jurisdiction (Part 6-4C), general protections claims (Part 3-1), the right to disconnect dispute jurisdiction (section 333M from 26 August 2024) and modern award or enterprise agreement dispute resolution processes.

How did Closing Loopholes No. 2 change workplace dispute jurisdictions?

The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 introduced new jurisdictions including the right to disconnect dispute jurisdiction (section 333M, from 26 August 2024), the employee-like worker jurisdiction (for road transport and gig workers), and changes to workplace delegate rights. It also introduced a new statutory definition of casual employment and expanded the FWC's powers to deal with various workplace disputes.

Attendance Management Stop Orders: Post Closing Loopholes No. 2

FWC stop orders for unreasonable attendance management policies following the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 changes to workplace investigations and Part XII jurisdictions.

Closing Loopholes No. 2 reforms

The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 amends the Fair Work Act 2009 (Cth), with changes taking effect from staged commencement dates beginning 27 February 2024. These amendments introduce a new definition of casual employment, establish a ‘closing loopholes’ employee-like worker jurisdiction, and modify right of entry provisions.

From 26 August 2024, the Fair Work Commission (FWC) has the authority to resolve disputes concerning workplace delegate rights and the right to disconnect, as outlined in section 333M. This expands the FWC’s role in addressing workplace issues beyond its existing functions.

The reforms also broaden the FWC’s jurisdiction to encompass disputes related to workplace policies that have an unreasonable impact on employees. This expanded jurisdiction interacts with the FWC’s existing powers to deal with stop-bullying and stop-sexual-harassment matters under Parts 6-4B and 6-4C.

Attendance management and reasonableness

Employer attendance management policies, frequently referred to as absence management policies, are subject to the requirements of the National Employment Standards. These standards include entitlements relating to personal and carer’s leave. Policies must be designed and implemented in a way that aligns with these legislative obligations.

The Fair Work Commission (FWC) has indicated that attendance management policies containing excessive triggers – for example, treating protected leave as if it were unplanned absence – may be deemed unreasonable. Employees who believe they have been unfairly treated by the enforcement of an attendance management policy may be able to challenge this action under the FWC’s general protections jurisdiction (Part 3-1).

From 26 August 2024, a new avenue for dispute resolution will be available. Employees may apply to the FWC under section 333M to address disputes concerning the right to disconnect, which may relate to expectations around after-hours attendance. Furthermore, disputes arising from attendance management can also be addressed through dispute resolution processes outlined in modern awards or enterprise agreements.

Stop sexual harassment and stop bullying overlap

The Fair Work Commission (FWC) has the authority to issue stop-bullying orders under Part 6-4B of the Fair Work Act where workers experience repeated unreasonable behaviour creating a risk to health and safety. Similarly, Part 6-4C provides for equivalent stop-sexual-harassment orders. These jurisdictions are distinct but can intersect.

Heavy-handed attendance management practices, when they involve repeated unreasonable behaviour, can be considered workplace bullying. In such circumstances, the FWC may use its stop-order jurisdiction to mandate changes to those attendance management practices.

Workers experiencing either bullying or sexual harassment related to attendance management are not required to utilise internal grievance processes before applying to the FWC for a stop order.

Compliance and best practice

Compliance with attendance management stop order requirements necessitates careful policy design and consistent application. Employers must ensure their attendance management policies exclude protected personal/carer's leave from attendance calculations. Furthermore, all documentation relating to attendance issues must be transparent and provide employees with opportunities for procedural fairness.

Regular policy reviews are essential to maintain compliance. These reviews should specifically consider the implications of the new right to disconnect and provisions relating to casual employees. Failure to do so may result in unintended consequences and potential legal challenges.

Adverse action taken against employees as a result of attendance management can trigger general protections claims under Part 3-1 of the Fair Work Act 2009. Serious contraventions of the Fair Work Act 2009 can attract significant civil penalties, up to 600 penalty units for individuals and 3,000 penalty units for body corporates, per contravention.