Who pays for the maintenance of your qualifications?

Who pays for the maintenance of qualifications?

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TL;DR summary: I argue that employers should pay for the maintenance of the qualifications that they require their employees to have.

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As an employee in the outdoor sector/industry, it is highly likely that your employer will require you to have certain qualifications for your job. For example, it is very common for employers to require you to have a current working with children check or a first aid qualification.

It is reasonable for an employer to ask you to have these qualifications as a prerequisite to employment (you will often see the qualification requirements outlined in a job ad).

It is also reasonable for your employer to include a clause in your employment contract that states that if certain qualifications lapse then the Employer may terminate your employment.

If you are a permanent employee (full or part time), it is usually the case that an employer will pay for the ongoing maintenance (recertifications, etc) of the qualifications required for your job. (Not always, but often.)

What is not very common for casual employees who work in the outdoor industry/sector to be paid for maintaining these qualifications.

I have come around to think that it is a fair reading of the legislation to say:

If an employer requires an employee to maintain a qualification as a condition of their employment (e.g., for legal compliance, safety, or to perform their job duties), then the employer must generally:

• Pay for the cost of the course or training itself.

• Pay the employee for the time spent undertaking the training. This applies whether the training occurs during regular work hours or is required outside of usual hours.

Background:

I asked Google Gemini a tricky question that's been on my mind for some time. Below is a copy of the transcript. 

All my questions are in red. The text in black is AI generated text. The Crux question is the 4th one, but it was important to flesh out the first 3 questions before getting to the 4th one. The last line - the penultimate answer - was not at all surprising to me, however I think it may come as a rude shock to the outdoor industry/sector.

Here is a link to the original query: https://gemini.google.com/share/037bb0039372 

What does the The Fair Work Act 2009 say about who pays for Mandatory Training?

The Fair Work Act 2009 (Cth) generally requires employers to pay for mandatory training. Here's a breakdown of what that means:

• If training is required, it's generally paid time: If an employer requires an employee to attend training as a condition of their employment (e.g., for legal compliance, safety, or to perform their job duties), then the employer must generally:

  • Pay for the cost of the course or training itself.

  • Pay the employee for the time spent undertaking the training. This applies whether the training occurs during regular work hours or is required outside of usual hours.

• "Mandatory" training: This refers to any instruction that an employer requires an employee to attend, where the employee has no ability to refuse. Examples include Work Health and Safety (WHS) inductions, anti-discrimination training, or training on new software essential for the job.

• Payment for time:

  • During normal hours: If training occurs when the employee is rostered to work, they must be paid their regular hourly wage.

  • Outside normal hours: If the training is compulsory and occurs outside an employee's rostered or usual hours, it must generally be treated as paid work. This may also trigger overtime or penalty rates, depending on the applicable Modern Award or Enterprise Agreement.

  • Casual employees: Casual employees are absolutely entitled to be paid for all time spent on required training, at their ordinary pay rate plus any casual loading. This includes induction or compliance activities required before they can start work.

  • Travel time: If employees must travel for mandatory training, some of that travel time may also be considered "time worked" and require payment.

• Employer's responsibility for costs: The Fair Work Act, along with other legislation like the Work Health and Safety Act, places an obligation on employers to ensure workers have the necessary skills and information for safety and to perform their jobs. This often means the employer must cover the costs of essential training. It is usually unlawful to require an employee to pay for essential training required by their job.

• Exceptions (limited):

  • Vocational placements: Lawfully unpaid vocational placements are allowed when they are a required component of an education or training course, approved by the institution, and the student is not entitled to pay for the work undertaken.

  • Brief skills assessments: Very short, skills-based assessments as part of the hiring process might not require payment, but they must not involve actual productive work. If someone is offered a job conditional on training, or required to complete substantial induction, they are generally considered an employee from the start of that training and must be paid.

• Important considerations:

  • Awards and Enterprise Agreements: Always check the relevant Modern Award or Enterprise Agreement, as these documents can contain specific rules about payment for training, including penalty rates and allowances for travel or meals.

  • Transparency: Employers should be transparent with employees about whether training is mandatory or optional, and if it's paid or unpaid.

  • Employment contracts: Employment agreements and workplace policies should clearly document all compulsory training and payment arrangements.

In essence, if an employer requires an employee to undergo training to perform their job, the employer is generally responsible for both the cost of the training and paying the employee for their time spent undertaking it.

Can you provide references within the legislation for these assertions?

You're absolutely right to ask for the legislative backing! While the Fair Work Act 2009 (Cth) doesn't have a single, explicit section titled "Employer pays for mandatory training," the obligation arises from various parts of the Act and related principles of employment law.

Here's a breakdown with relevant sections and principles:

1. General Principle of "Work" and "Hours of Work":

The foundational principle is that employees must be paid for all time worked. If training is required by the employer, it falls within the scope of "work."

• Fair Work Act 2009 (Cth) - Section 20 (Meaning of ordinary hours of work for award/agreement free employees): While this specific section applies to award/agreement free employees, the underlying concept that "ordinary hours of work" involves time performing duties for the employer, and being paid for it, is fundamental across all employment.

• Modern Awards and Enterprise Agreements: These instruments, made under the Fair Work Act, define minimum wages, hours of work, overtime, and other conditions. If an employer requires training, it generally falls under "hours of work" and must be paid in accordance with the applicable award or agreement, including any penalty rates or overtime. The Fair Work Act sets the framework for these instruments to operate.

  • Section 134 (The modern awards objective): This objective includes ensuring that modern awards provide a fair and relevant minimum safety net of terms and conditions, which inherently covers payment for all required work.

  • Section 172 (Content of enterprise agreements): Enterprise agreements can also include terms about remuneration, hours, and training.

2. National Employment Standards (NES):

While the NES don't directly state "employers must pay for mandatory training," they establish fundamental entitlements that underpin this principle.

• Division 3 - Maximum weekly hours (Sections 62-64): If mandatory training causes an employee to exceed their maximum weekly hours, the employer must ensure it complies with these provisions, which often means paying overtime. The fact that required training counts towards these hours reinforces it as "work."

• The spirit of the NES: The NES are designed to provide minimum standards. Requiring an employee to undertake unpaid, mandatory training would generally undermine the intent of these minimum standards regarding pay and conditions.

3. Work Health and Safety (WHS) Legislation:

While not directly part of the Fair Work Act, WHS laws are crucial context and work in conjunction with it. They place obligations on employers that frequently necessitate mandatory training, and therefore payment for it.

• Work Health and Safety Act 2011 (Cth) (and corresponding State/Territory WHS Acts): These Acts require employers to provide a safe working environment and, as part of this, ensure workers receive the necessary information, instruction, and training to perform their work safely and without risks to health. If this training is required by law for safety, it's inherently part of the employee's work duties and must be paid.

  • For example, Section 19 (Duties of persons conducting businesses or undertakings) and Section 27 (Duties of officers).

4. Vocational Placements (the exception):

This is where the Fair Work Act does explicitly address unpaid arrangements.

• Fair Work Act 2009 (Cth) - Section 12 (The Dictionary) - Definition of "vocational placement": This section defines a "vocational placement" as:

  • (a) undertaken with an employer for which a person is not entitled to be paid any remuneration; and

  • (b) undertaken as a requirement of an education or training course; and

  • (c) authorised under a law or an administrative arrangement of the Commonwealth, a State or a Territory.

  • Section 13 (Meaning of national system employee) and Section 15 (Ordinary meanings of employee and employer): A person undertaking a genuine "vocational placement" that meets the criteria of Section 12 is not considered an employee for the purposes of the Fair Work Act. This is the key legislative basis for lawful unpaid work/training.

The existence of this specific carve-out for vocational placements implicitly confirms that if an arrangement doesn't meet these strict criteria, and involves an employment relationship, it must be paid.

5. General Protections (Adverse Action):

While not directly about payment for training, the General Protections provisions reinforce the notion that employers cannot take "adverse action" (like dismissing or prejudicing an employee) against an employee for exercising a workplace right. This includes rights related to wages and conditions, which would encompass being paid for work, including mandatory training.

• Fair Work Act 2009 (Cth) - Part 3-1 (General Protections):

  • Section 340 (Protection of workplace rights): Protects an employee from adverse action because the employee has a workplace right or has exercised or proposes to exercise a workplace right.

  • Section 341 (Meaning of workplace right): Includes an entitlement to the benefit of a workplace law (like the NES or an Award) or workplace instrument.

Summary of Legislative Logic:

The Fair Work Act establishes a framework where:

• Employees generally must be paid for all time they are required to work by their employer (derived from sections on hours of work, wages, and the content of Awards/Agreements).

• If training is mandatory for the job, it constitutes "work" for which payment is required.

• The specific exception of "vocational placements" (Section 12) highlights the strict conditions under which unpaid training is permissible. If training doesn't fit this narrow definition and an employment relationship exists, payment is generally required.

• WHS laws, while separate, create obligations for employers to provide training, further cementing its status as an employer responsibility that falls under "work."

It's a combination of direct and implied obligations within the Act, reinforced by related legislation and common law principles of employment.

Sources

All of that seems pretty sensible to me, but it all gets pretty murky when you talk about casual employees. How would you answer the questions I asked above if it related specifically to casual employees?

You're right to highlight casual employees – while the core principle of "paid for mandatory training" remains the same, the practical application can sometimes feel murkier due to the nature of casual employment.

Here's how the Fair Work Act 2009 (Cth) and related principles apply specifically to casual employees regarding mandatory training:

The Core Principle Remains: If It's Mandatory, It's Paid.

For casual employees, just like full-time or part-time employees, if the employer requires them to attend training, it is considered work and must be paid. This includes:

• Induction and Onboarding: This is a common point of confusion for casuals. If a casual employee is required to attend an induction, complete online modules, or undertake any form of training before they can start their first shift, this time must be paid. The Fair Work Ombudsman (FWO) is very clear on this: if it's a prerequisite to working, it's paid. This is because, at that point, an employment relationship has effectively been formed, even if it's casual.

• Ongoing Training: If, at any point during their casual engagement, the employer requires the casual employee to attend further training (e.g., new product knowledge, safety refreshers, software updates), this time must also be paid.

• Meetings: Similarly, if a casual employee is required to attend a meeting (e.g., team meeting, performance review), this time is paid.

Key Differences and Considerations for Casuals:

1. Casual Loading: This is the most significant difference. Casual employees are paid a casual loading (typically 25% on top of the permanent employee's base hourly rate) in lieu of paid leave entitlements (like annual leave or personal/carer's leave) and notice of termination/redundancy pay.

   • Payment for training time must include the casual loading. So, if a casual is required to do 2 hours of training, they must be paid for those 2 hours at their base hourly rate plus the casual loading.

   • Legislative basis: The casual loading is primarily found in Modern Awards. Section 15A of the Fair Work Act defines a casual employee and refers to them being "entitled to a casual loading or a specific rate of pay for casual employees under the terms of a fair work instrument."

2. No Guarantee of Hours (but mandatory training changes this for that specific time): The defining characteristic of casual employment is the absence of a firm advance commitment to continuing and indefinite work (Fair Work Act, Section 15A). However, when an employer mandates training, they are, by definition, committing to those specific hours of work. Those hours are then treated as regular working hours for payment purposes.

3. Modern Awards and Enterprise Agreements: These documents are crucial. They will specify:

   • The base hourly rate for the employee's classification.

   • The specific casual loading that applies (most commonly 25%, but can vary).

   • Any specific rules around minimum engagement periods for casuals (e.g., a 3-hour minimum shift). If training falls below this minimum, the employer may still need to pay for the minimum period as per the award.

   • Fair Work Act, Section 134 (Modern Awards Objective) and Section 172 (Content of Enterprise Agreements): These ensure that awards and agreements set minimum pay and conditions that apply to all employees, including casuals.

4. Travel Time: If a casual employee is required to travel to a location specifically for mandatory training (that is not their usual place of work), some of that travel time may also need to be paid, depending on the applicable Award or Enterprise Agreement and the circumstances. This is often an area where specific award clauses come into play.

5. Distinguishing "Mandatory" from "Optional" or "Voluntary": This distinction is critical for casuals.

   • If an employer suggests training that is genuinely optional and not required for the casual to perform their duties or continue their employment, then payment is generally not required.

   • However, if there's any implicit pressure, or if not attending would impact their ability to get shifts or maintain their role, it's likely to be deemed mandatory and therefore paid.

   • Best practice: Always be transparent. If training is genuinely optional, state it clearly. If it's required, clearly communicate that it is paid time.

Legislative References (specific to casuals or highly relevant):

• Fair Work Act 2009 (Cth) - Section 15A (Meaning of casual employee): This section defines a casual employee by the absence of a firm advance commitment to continuing and indefinite work and their entitlement to a casual loading under an award/agreement or contract. The fact that they get a casual loading for all hours worked directly implies that mandatory training hours are included in "hours worked."

• Fair Work Act 2009 (Cth) - Section 12 (Dictionary) - "remuneration": Remuneration means "pecuniary benefit." Payment for work, including mandatory training, falls under this.

• Modern Awards: Each Modern Award will have a specific "Casual Employees" clause outlining their entitlements, including the casual loading and how it applies to all hours worked. For example, the Fast Food Industry Award 2010 or the General Retail Industry Award 2020 will have specific clauses on casual rates.

• Work Health and Safety Act 2011 (Cth) (and state/territory equivalents): These Acts make no distinction between casual and permanent employees regarding the employer's duty to provide necessary information, instruction, and training for a safe workplace. If a casual needs WHS training, the employer must provide and pay for it.

Practical Summary for Casuals:

If you, as an employer, are telling a casual employee they must do something (attend training, a meeting, an induction), then that time is work, and it must be paid. This payment includes their ordinary hourly rate plus their applicable casual loading, and any relevant penalty rates if the training occurs outside of ordinary hours (e.g., weekend, public holiday). The key is the "mandatory" nature of the activity.

Okay, in light of all the above, what if I don't require a casual employee to attend training but I do require them to have (and maintain) certain qualifications for their employment? (As an example, a casual employee might be required to keep their first aid skills up to date)

This is an excellent and common question, as it delves into the grey areas of "mandatory training" versus "mandatory qualifications."

The general rule still holds, but with a crucial distinction:

If the qualification is a pre-requisite for employment or continued employment in that specific role, and the employer requires the employee to maintain it, then the employer is generally responsible for the cost of the training/qualification and paying for the time spent obtaining/renewing it.

Let's break down why, with references:

1. "Mandatory" Extends to Required Qualifications:

The principle of "mandatory training" isn't limited to specific, one-off training sessions directed by the employer. It extends to any qualification that is essential for the performance of the job as required by the employer, or by law, to undertake that role. If you cannot legally or practically perform the job without that qualification, then the employer's requirement for you to hold it makes obtaining/maintaining it a necessary part of your work.

• Fair Work Act 2009 (Cth) - Underlying Principles of "Work": While no single section explicitly says "employer must pay for qualifications," the Act's framework is built on the premise that employees are paid for performing their job duties and meeting the requirements of their role. If holding a qualification (like First Aid) is a fundamental requirement of the job description itself, then maintaining it effectively becomes part of the employee's work to meet the terms of their employment.

• Work Health and Safety (WHS) Legislation (e.g., Work Health and Safety Act 2011 (Cth) and state/territory equivalents): These laws are highly relevant. They impose a primary duty on persons conducting a business or undertaking (PCBU - usually the employer) to ensure, so far as is reasonably practicable, the health and safety of workers. This includes providing (or ensuring workers have) the necessary information, instruction, training, or supervision to perform work safely. If a first aid qualification is deemed necessary to meet WHS obligations in your workplace, it strengthens the argument for employer responsibility.

2. Distinction: Who Benefits?

The core question is, who primarily benefits from the employee holding the qualification?

• If the primary beneficiary is the employer/business (because it's required for the employee to do their job, for legal compliance, or for the safety of the workplace/clients), then the employer should bear the cost and the time.

• If the primary beneficiary is the employee (e.g., a qualification that significantly enhances their career portability generally, or is for their own personal development, and is not strictly required by the current employer), then the cost and time might legitimately fall to the employee.

However, "required for their employment" leans heavily towards the employer benefitting.

3. Practical Implications for Casuals:

• Cost of the Course: The employer is generally expected to cover the direct cost of the First Aid course (or any other required qualification). It would be considered an unreasonable cost burden on an employee for something required to perform their job.

• Payment for Time Attending the Course: The time spent by the casual employee attending the First Aid course is considered "time worked" because it's required to meet a condition of their employment. Therefore, they must be paid their ordinary hourly rate plus casual loading for all hours spent in the course. This applies whether the course is online or in-person.

• "Maintain" the Qualification: If the employer requires the qualification to be maintained (e.g., renewed every three years), then the principle applies to the renewal course too. The employer should cover the cost and the time.

• Minimum Engagement Periods: For casuals, consider if the training duration triggers any minimum engagement periods under the relevant Modern Award. For example, if the First Aid course is 2 hours but the Award has a 3-hour minimum engagement, the casual might need to be paid for 3 hours. (This is award-specific.)

4. Exceptions (Very Limited):

• Pre-existing Qualifications: If you hire a casual employee, and they already possess the required First Aid qualification, you are not generally obligated to reimburse them for the cost of obtaining that initial qualification (unless negotiated). Your obligation arises when you require them to obtain or maintain it during their employment with you.

• Truly Voluntary: If having a First Aid certificate is merely preferred or encouraged but not a strict condition for performing the job, and the employee undertakes it for their own professional development or to make themselves more competitive for shifts, then the employer may not be obligated to pay. However, be very careful here – if the employer benefits significantly, or if not having it practically disadvantages the employee in gaining shifts, it can quickly be deemed "mandatory."

5. Documentation and Transparency:

• Employment Contracts: Clearly state in the employment contract that certain qualifications (e.g., First Aid) are a requirement for the role and for ongoing employment.

• Workplace Policies: Have a clear policy on how these qualifications are managed, who pays, and how time is compensated. This provides clarity for both parties.

In the First Aid Example:

For a casual employee required to keep their first aid skills up-to-date:

1. Cost of the course: The employer should pay for the course fee.

2. Time spent on the course: The employer must pay the casual employee for the time they spend attending the course (including breaks, if paid), at their ordinary hourly rate plus casual loading.

Legislative Touchpoints for "Required Qualifications":

• Fair Work Act 2009 - Sections on Awards and Agreements (Divisions 2 and 3 of Part 2-3): Many Modern Awards specify allowances for holding particular qualifications (e.g., First Aid Allowance – see the example from Sprintlaw in the search results). While this doesn't explicitly state the employer must pay for the qualification, the presence of an allowance for holding it often implies that it's a recognised job requirement, strengthening the argument for employer payment if it's genuinely mandatory for the role.

• WHS Legislation: As mentioned, the employer's duty to provide a safe workplace often necessitates certain qualifications. For instance, the Work Health and Safety Act 2011 (Cth), Sections 19 and 27, relate to duties of PCBUs and officers to ensure health and safety, including providing necessary training and supervision. If a first aid qualification is part of this necessary training/supervision to ensure safety, then it's an employer responsibility.

The crucial element remains: If the employer requires it for the employee to perform the job, then it's generally an employer's expense and paid time.

Footnotes by me:

NOTE: I think the terms “qualification” and “maintenance” should be interpreted broadly. The term qualification includes licences, permits, clearances and more. The term maintenance includes recertification, updates, upgrades, maintaining validity, maintaining registration, and more.

ALSO NOTE: I am not at all arguing that an employer should pay for the qualifications an employee should have in order to get a job in the first place. I am only arguing for the maintenance of qualifications once an employee has a job.