Army reserves and employer’s obligations
The purpose of this document is to provide a guide to Members on navigating issues relating to employees who are army reservists or about to join the army reserves. This document will provide Members with more information regarding their rights and obligations to the affected employees, and how to comply with the law that governs this as required. This advice is for MTA Members across Australia and the information provided is in relation to the Defence Reserve Service (Protection) Act 2001 (the Act) and the Fair Work Act 2009 (Cth) which are both federal acts.
What are the rights of Defence Reservists?
As well as their workplace rights and entitlements under the Fair Work Act 2009, Reservists have additional workplace protections under the Act. Reservists are protected in their civilian workplace from discrimination, disadvantage or dismissal for reasons associated with their Defence service. Members should be aware that breaching this protection is a criminal offence.
Right to be released and reinstated
Employers must not prevent or hinder Reservists from undertaking Defence service. This means that employers are required by law to release employee Reservists to undertake all types of Defence service, and to continue to employ them upon their return. This includes training. Reservists are encouraged to discuss their Reserve commitments with their employers 6–12 months in advance and Reservists should, as a matter of good practice, always try to give their employer as much notice as possible of the dates they will be absent from work on Defence service. However, employers should note that while an employer may request an employee provide them with a set period of notice prior to undertaking Defence service, the employee is not obligated to satisfy such requests. Further, it would be unlawful for an employer to not release the employee on this basis.
Members should note that it is an offence to hinder an employee from becoming a Reservist, refuse to employ someone or dismiss a current employee on the basis that they are a member of or would like to join the Reserves. There are also protections for Reservists who are commission agents, partners in trading partnerships, contractors, commission agents and students.
Is there a right to be paid while absent on Defence service or training?
There is no legal obligation for employers to pay employees while they are absent on Defence service, including training. However, many employers do provide paid leave, and some provide top-up pay to assist their employee Reservists, as military pay for many Reservists is less than their civilian pay. Employees should check their relevant industrial instruments - such as an enterprise agreement, award, or their contract of employment for any paid Defence service leave entitlements that may apply. Employees cannot be required to take their annual leave or long service leave for absences on Defence service, but may voluntarily elect to do so by mutual agreement with their employer.
Defence Reserve leave policies
Members are encouraged to have a Defence Reserve leave policy as this can help to ensure that both employees and employers understand the expectations and responsibilities that apply to them when an employee needs to be absent for Defence service or training. In developing a Defence Reserve leave policy, please contact the Defence Reserve Support Office in every capital city on 1800 333 362. The leave policy is a minimum standard and should not constrain those employers who wish to pursue best practice from providing additional support such as paid leave or top-up pay for Defence Reserves.
Employer Support Payment Scheme
Employers may be eligible for financial assistance to offset the costs of releasing employees for Defence service, through the Employer Support Payment Scheme. Employers are paid for eligible Defence service at a set weekly rate (regardless of the employee’s salary), although there is a provision in special circumstances for higher payments. For more information, contact Employer Support and Service Protection on 1800 333 362 or visit Defence Reserves Support at www.defencereservessupport.gov.au.
What do I do if an employee is claiming discrimination or if I would like to discuss further the impact of the Reservist’s duties to their employment?
Members should first talk to their employee and attempt to resolve the dispute. Where this is unsuccessful and the issue remains unresolved, a member may contact Employer Support and Service Protection on 1800 333 362. Employer Support and Service Protection works with employers, Reservists and their Defence units by providing advice on the legal obligations of the employers and rights and responsibilities of Reservists, and helping to resolve issues. Employer Support and Service Protection may also provide a mediation service to assist with resolving issues informally. Where issues cannot be resolved informally, Employer Support and Service Protection may refer the matter for investigation and possible prosecution.
You may also contact the MTA workplace relations team for further advice and assistance.
Other obligations Members should be aware of
While Reservists have particular rights and protections under the Act, members should be aware that all employees in the national workplace relations system have access to leave for certain community service activities, and protections for workplace rights. Employees are entitled to community service leave under the Fair Work Act where they are absent from work for the purpose of performing certain community service activities, such as a ‘voluntary emergency management activity'. This is separate to the right of Reservists to be absent on Defence service or training and by virtue of being Reservists, this may allow an employee access to this type of leave.
The general protections provisions of the Fair Work Act 2009 provide protection regarding:
The Fair Work Act 2009 prohibits adverse action being taken against an individual because of one of these reasons. Adverse action can include: dismissing an employee, refusing to hire someone, or altering their position to their detriment.
A workplace right includes where a person is entitled to a benefit, or has a role or responsibility under a workplace law, workplace instrument such as an award or agreement or any order made by an industrial body. These also include rights under the Act. An employer must not take adverse action against an employee because they have or are attempting to exercise a workplace right. As such, a Member should be aware that a claim under general protections may also arise in case of Reservists if any adverse action is taken against them in relation to them being Reservists and trying to exercise a workplace right.
A breach of the general protections provisions in the Fair Work Act can result in penalties of up to $66,600 for a corporation, or $13,320 for an individual.
Given the risk of significant penalties, it is important that advice is sought before taking any action in respect of an individual’s employment as a result of their role as a Reservist.
For more information regarding dealing with Reservists or if any Member requires more information relating to the information provided, please contact the MTA’s Workplace Relations team on (08) 8291 2000 or email firstname.lastname@example.org and we will assist you.