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  1. #1

    Default Medical Certificates and award information

    My partners daughter was knocked off her bike on her way to work at Subway as she was pretty shook up as you can imagine badly bruised etc she was unable to go to work. Since then she has received physio treatment and it has been reported to the police. Unfortunately the manager and store owner are refusing to accept her medical certificate as they don't require it. They have since removed her from this week roster even though she is fit for light duties. A similar thing happened when she was admitted to emergency except then they tried to give her a warning for not finding coverage for her shift. Though I would have thought that be a management issue to deal with.
    I realise she is a casual and the medical certificate has no bearing on her wages but all the places I have worked accept them and note whether it is for how many days or has duty restrictions etc then file them. Is there something in Fairwork that says you don't have to accept the medical certificates?

    This store owner is also refusing to say what award or agreement she is paid under which I also thought was a right under Fairwork act. Both parents have asked as well but to no avail. Nothing is stated on her payslip either as there was some confusion whether she was employed as a casual or part time as well. The old manager told her that she would be part time and crossed this on her tax declaration form but the owner says there was a mistake made and she is casual. I had thought under Fairwork you could ask for information on what award you are paid under ie modern award which one etc or if it is an agreement request a copy for your records. Is this not the case anymore?

    Any advice would be appreciated
    Last edited by Fabsteel; 16-01-2015 at 11:26 AM.

  2. #2
    Join Date
    May 2010
    Location
    Melbourne
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    Medical Certificate - The business can request reasonable evidence which includes the certificate. Not sure there is any compulsion on the Employer to have to accept them.

    Casual v perm - There should have been a contract and "a mistake was made" doesn't excuse the business. Check the original paperwork. Yes they have to advise which award they are hired under and allow the employee access to it (can be via a weblink). If she was not casual, she should have accrued leave and had it showing on the payslips. Regardless of the paperwork though, if she can show systematic and regular shifts of work performed, she is part time under employment law and has a right to sick leave and annual leave.

    Now this is where it gets messy. If the franchisee is employing less than 15 employees, there goes the right to unfair dismissal. If she is casual, there is no compulsion for the business to give them shifts going forward.

    My advice would be to call Subway head office, and advise them what is occurring and you will be considering further action. The head office will want to protect their brand and will probably be more helpful than a franchisee struggling to pay their franchise fees. May or may not work, but would be my first port of call followed by fairwork ombudsman

  3. #3
    Join Date
    Aug 2007
    Location
    Melbourne, Australia
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    I have a less sympathetic view than Cottoneyes.

    This sounds like a shonky employer who is cutting corners and not doing the right thing by their employees.

    The repeated refusal to say what award she is employed under suggests the employer has something to hide, like underpayment.

    Personally I would go straight to the FWO.

  4. #4

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    Thanks cottoneyes for that advice

    I did ask if she had a copy of her paperwork ie contract etc she states she was never given one and has since asked for a copy or to view her employment file the owner refused. Not sure why he just said he didn't have to though I thought he would have to supply the orginal contract/paperwork and award information.
    I advised her to contact the tax office,which she has and they forwarded a copy of her tax declaration which the manager filled out with her. It states she is part time. In fairness the hours have been all over the place though she seems to always be working on the weekends. My understanding is there is 3 casuals who usually oversee opening and lock up on the weekends as the manager doesn't work.
    I believe her mum rang head office three times and eventually an evaluator was sent out but no feedback has been given to her or her mum.
    I did say to her that being casual means you will only get a shift when required and that is at the managers discretion. there is no guarantees of work

  5. #5

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    I must admit I am with you MOZ if everything is all above board why wouldn't you just state which award/agreement is applicable and supply a copy or give her a link. Even giving a copy of the original paperwork would resolve this issue.
    She turned 18 in December and has not received an increase in the hourly rate also.

  6. #6
    Join Date
    Apr 2012
    Posts
    192

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    Whoa - shonky indeed. This employer is in breach of several Fair Work Act requirements and the penalties can be in the thousands of dollars. As already advised, employer has to
    a) provide copy of the Fair Work Information Statement to all employees at start of employment (and at effective date of Fair Work Act to then current employees as well). This document sets out summary of employee rights under the FW Act. Copy of this is available on the FW Ombudsman website – google it for a PDF version,
    b) inform employee of the award or enterprise agreement they are covered under and provide copy (or link to) of such document
    c) inform employee of the grade (or level) they are paid at.
    d) if a part time or full time permanent employee, then all the ten National Employment Standards apply.

    If the tax declaration shows "part time" then leave should have been accruing. An employer cannot just unilaterally change the employment type of an employee. There has to be consultation with the employee and if the employee eg was permanent and refused the change to casual then, their permanent role is redundant. However, if a small business (ie less than 15 employees), then severance pay may not apply under the FW Act. However, it would helpful to check if there is an enterprise agreement. I have a memory of some years back of a friend's daughter working for Subway (although it could have been Eagle Boys??) where in fact there was an enterprise agreement in place. Enterprise Agreements should be in the public record so you could do some checking to find out if there is one. https://www.fwc.gov.au/awards-and-ag...find-agreement

    Another point in regard to redundancy however is that the decision as to whether a business is small or not, must take into account the total number of employees employed by the business & related entities. So what the deal is with franchisees is the question and probably best to seek legal advice from a corporate lawyer if you know one.

    Definition of a true casual is they work irregularly and in an unsystematic manner. There is however provision, under several awards, for "regular casuals" but if such employment has been for a year or more, employer must at least offer permanent employment to the casual who can refuse of course.

    There are now certain requirements under the FW Act as to what must be included in a Pay Advice Slip. Whilst not legally required, it has been best practice for a long time now to include leave balances (for A/L and PC/L at least) – details are on the FW website.

    If your daughter is in fact a part time permanent employee and there are no leave balances on her PAS, she is entitled to ask her employer what leave she has and the employer must tell her – if he fails to do so, that is another breach and a further potential penalty for the employer.

    If a true casual, your daughter doesn’t have any guarantee of regular shifts and proving she is not getting them for reasons of her accident would be difficult. She could of course go the route of filing an adverse action claim but I’d seek advice from an employment lawyer on that one.

    Since a casual employee is not entitled to Personal Carer’s Leave, then that may be the reason the employer wasn’t interested in your daughter’s Medical Certificate?? But what about workers’ compensation? I am not an expert in that area but it used to be that if injured whilst travelling directly to or from work, you were covered. I know this did change a few years ago but am not sure if it was just in some Australian states/territories or the lot? You might want to call your local state WorkCover on this one.

    Even a casual does have to recourse to unfair dismissal under the Fair Work Act if covered by a Modern Award or an enterprise agreement and if the casual has worked longer than 12 months for a small business or more than six months for a large business (ie 15 or more employees).

    Since you have already phoned HO, I would now
    a) write a letter to them with details of the breaches of this franchisee (attach copy of the Tax Declaration form showing your daughter is “part time”
    b) request outcome of any investigation they did based on your original call to them
    c) if not forthcoming, within a reasonable time frame, I would inform them you will be taking the matter to Fair Work for them to investigate – I would actually put this in your letter to them.
    You are thus giving the business an opportunity to respond and if they don’t take it further, this franchisee & its parent company are in some trouble and I’m sure they don’t want the adverse publicity this might bring if the story was to suddenly appear in the weekend newspapers. Of course the downside will likely be your daughter receives no more shifts from the business but then do you really want her working for such a shoddy enterprise?
    Tiger

  7. #7
    Join Date
    Aug 2007
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    Melbourne, Australia
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    Quote Originally Posted by Tiger View Post
    Enterprise Agreements should be in the public record so you could do some checking to find out if there is one. https://www.fwc.gov.au/awards-and-ag...find-agreement
    If you can't find it through the link from Tiger, try this one;
    PayCheck Plus - Fair Work Ombudsman

  8. #8

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    thanks Tiger
    I am with you I think the whole setup is very shonky and told her that ages ago.
    I have searched for an agreement for this particular subway store several times but haven't come across it yet. They seem to be group listed as single enterprise interest or multiple interest trading as Subway franchises. As you can imagine there are quite a few so will keep reviewing them to see what I can find. Did find a subway collective agreement with no names listed looked like it was master copy for the franchises so looking through this one at the moment.

    Made my partner go in and see the owner he has stated he will now give a copy of the award/agreement to the daughter but I wouldn't hold my breath just yet.
    he tried to avoid the question and finally said it was the subway award? He has been told to produce the award/agrrement forthwith as he didn't have any on the premises (bit suspect as surely he would have it on the office computer/or induction packs for new employees etc). I get the impression from my partner that he was being very evasive and wouldn't give direct answers. I did say that a follow up email would be a good thing to let the store owner know that the document has to be produced within so many days and also forward to head office.

    Well it seems the tax form says part time but the pay slips say casual so not entirely sure where we would stand on that - employees sometimes cross the wrong box on the tax declarations usually I ask them to fill out a new one when checking the paperwork and lodging with the tax office.

    With the shifts well he tells us there is no shifts and he hasn't sacked her but currently has a gumtree advert asking for sandwich artists to start immediately.
    I have documented this so if anything further happens he may have some explaining to do. I get the feeling he is trying to get her to quit to avoid any adverse actions like unfair dismissal.

    Thank you for the info about workcover I will check into that as it looks like there may be some damage to her knee we will know more when the scan results are in.

  9. #9
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  10. #10
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    I'm not sure the TFN form can be used to evidence the type of employee. In my 20 years as a pay clerk, I swear 1 in 4 are filled out incorrectly. I appreciate that you say the owner marked this question on the form... but it's just a tick, I still don't think it could be used in evidence.

    As for the Award, I wonder if the owner is dodging the question because he doesn't even know what award applies!
    I realize the Subway award isn't list here: SDA National Office - awards But maybe somebody at the SDA can help.
    I guess in the absence of a specific Subway agreement the applicable Award might be https://extranet.deewr.gov.au/ccmsv8...?Code=MA000003

    And what state are you in? This injury would be covered by Worker Comp. in Queensland, not NSW nor Vic... not sure about other states.

    Edit = typo

  11. #11

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    No I realise there are quite a few shonky operators out there in all industries.

    Though I think you are right bullswool I don't think the owner knows if it is an award or an agreement which he pays under.. all he could say is Subway award.
    I checked the SDA awards and the modern awards first before starting on the Fairwork list of agreements and orders.
    hopefully he will forward a copy of the original contract/agreement which would help us sort through the issues, though going by what the staff say I don't think he gives them copies of anything when they are employed no contract, agreement etc. I thought that Subway provided the training, templates etc as part of their franchise setup fees.

  12. #12

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    The latest is that the manager has called the daughter in for a meeting tomorrow to discuss things. She has asked her dad to go with her in a support role.
    She still hasn't been given any shifts.
    At last seen a payslip doesn't state whether any of the following casual or part time, or the award or classification ie sandwich artist. I think that these fields are still optional under fairwork.

  13. Default

    Interesting thread. Can't help wondering how many other fast food outlet operators and other retail business operators either have no knowledge of their legal responsibilities or are intentionally taking advantage of young workers.

    Fabsteel, in the absence of a specific Subway agreement this may help http://www.nra.net.au/images/SIAP-Fa...yFINALlogo.pdf

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