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In situations where an employee continues to remain absent from employment and without the provision of reason, or leaving the employer with no idea as to why the employee may not be presenting themselves ready willing and able to work, the concept of ‘abandonment of employment’ will raise its head.

Numerous modern Awards contain clauses dealing with ‘abandonment of employment’ and have, for many years, been misinterpreted and misapplied. This was also the case under previous versions of Awards containing such terms. Where an Award applied to the employment relationship and contained an ‘abandonment’ clause, employers often believed it created an automatic termination of employment where the specified circumstances existed.  No. Not the case. It merely created a scenario upon which the employer may commence the steps that may result in termination of employment.

As part of the grinding of gears that is the 4-year Award review process, a recent decision of the Full Bench of the Fair Work Commission reviewed ‘abandonment of employment’ terms contained within numerous modern Awards. The Commission found that on an application of the Fair Work Act 2009, such clauses are in fact not permissible or required to be included in a modern Award and should be deleted.

The decision will affect the Manufacturing and Associated Industries and Occupations Award 2010, the Business Equipment Award 2010, the Contract Call Centres Award 2010, the Graphic Arts, Printing and Publishing Award 2010, the Nursery Award 2010 and the Wool Storage, Sampling and Testing Award 2010.

But wait. It’s not all over yet. The Commission, mindful of the utility of including a clause which identifies procedures to be followed in the event of an employees extended and unexplained absence, will not actually delete the pre-existing ‘abandonment of employment’ clauses from those Awards until a standard replacement provision has been determined. Such a term would primarily be concerned with steps the employer “might take” (!!) to attempt to consult about the reason for the absence before taking action against the employee.

The wash up

So, this decision doesn’t and won’t affect the concept of “abandonment of employment” and “repudiation”. Further, while it does head down the hand holding path a little bit, and once again evidences the poor drafting of the Fair Work Act, it will probably provide some clarifying process for employers to follow if those Awards apply. Essentially the process that should have been followed under the pre-existing abandonment of employment clauses that are now headed for the scrap heap. Let’s just hope the replacement terms are drafted fairly and with clarity (not the 3 months wait as proposed by the AMWU!!!) so employers don’t get their hamstrings nicked a little bit more.

Now we wait.

Author: Charles Watson, Employment Lawyer, Better HR

Date: 25 January 2018

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