Employees must have policies that are consistent with current Employment legislation. Without these, employers are exposed to the risk of not complying with the legislation and incurring penalties.
An example of how this may play out is detailed in Scullin v Coffey Projects (Australia) Pty Ltd: No need for the employee to be a primary caregiver. Employee awarded damages for a breach of his entitlements.
A male employee requested 12 months parental leave to assist his wife with the care of their newborn twins but the employer’s policy prescribed that paternity leave was only available to a child’s primary care giver. The employer followed their policies and disallowed the employee from taking the leave.
The Court found that the employer had been negligent in preventing the employee access to unpaid parental leave. The amount payable to the employee was $169,347 gross. A penalty of $8,250 was also ordered against the employer for breaches of the Fair Work Act.