Frequently Asked Employer Questions – Vol.2


At MMO HR Solutions we’re frequently asked the same questions.  Here is the 2nd instalment of questions we’ve answered, from employers, via our Facebook page on our ‘Want to Know Wednesday’ posts.

Q.  If a new employee doesn’t already have a superannuation fund do they still get to choose a fund or can I request that they join our default fund?

A.  Employees (except those under a state award, industrial agreement or on a temporary working visa), are eligible to choose their superannuation fund regardless of whether or not they already have an existing fund.  You must provide them with a Super Choice form (or equivalent), within 28 days of them starting employment.  You then have 2 months from the return of the form to commence making contributions to their nominated fund.


Q.  Employers aren’t supposed to discriminate against disabled applicants, but what if the workplace can’t accommodate them?

A.   Disability is a ‘protected attribute’, and as you’ve stated can’t be discriminated against (it’s illegal to do so).  However there are some exceptions, one being when compliance with the legislation would cause unjustifiable hardship on the organisation.  Now ‘hardship’ is a relative term and will differ depending upon the business, disability and the role.  A sole trader working from home and considering the employment of an assistant for a few hours a week probably wouldn’t be expected to install ramps and modify a bathroom in their home to accommodate an employee in a wheelchair.  For a large multinational employing thousands of people, the expense would not be as significant and their facilities possible better to accommodate necessary adjustments.  As such they may not be able to use unjustifiable hardship as a reason for not employing an individual in a wheelchair.  That same sole trader would however probably be expected to invest in voice recognition software to assist a disabled employee who is unable to type, as this would not pose an unjustifiable hardship.

Another exception is where health and safety would be compromised.  Certain disabilities, both physical and mental may see certain workplaces unsafe for the employee.  Again, as with unjustifiable hardship, this will differ depending upon the business, the disability and the role.


Q.  I received a serious complaint about a staff member from a customer but that staff member is not on leave.  Can I start investigating now or do I need to wait until they’re back at work?

A.  There is nothing stopping you from commencing an investigation now.  You will however need to take into consideration the employee’s leave arrangements and allow for additional time for them to seek advice and respond to the questions/allegations if necessary.


Q.  Business has dropped off and we will probably need to make at least one employee redundant soon.  How do we choose who that will be?

A.  The first thing to keep in mind regarding redundancies is that roles become redundant, not individuals.  Therefore you need to think about which role you will no longer need rather than which person.  Only in the case of more than one person performing the same role that is no longer required would you need to look at individual attributes of employees when deciding on redundancy.  You could consider past performance or LIFO (last in, first out), when making your decision.  Ensure that you document the reasoning behind your decision (in case of queries or legal action), that you are not in contravention of the Fair Work Act and have not acted in a discriminatory manner.


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Disclaimer:  Blogs posted by MMO HR Solutions are for information purposes only and do not constitute professional advice.  The reading/use of any blog posts does not form a consultant-client relationship and such reading/use should not be used as a substitute for professional advice.