Earlier this year, a change to the MyGov system made it easier for employees to utilise statutory declarations (or ‘stat decs’). Statutory declarations can be provided as evidence that an employee is ill or injured and cannot attend work. While employees typically provide medical certificates, due to difficulties with having stat decs signed by a third party, this barrier has now been lifted. This article covers the changes and what businesses need to know.
Statutory declarations and personal and other leave
Employees are entitled to various forms of paid and unpaid leave. Some of these types of leave do not require approval, but if the employer requests it, the employee may need to provide evidence supporting their absence, as covered by the leave type they applied for.
The most common example is the requirement for a medical certificate when an employee takes paid personal leave due to illness. If the employee fails to provide the medical certificate, they are not entitled to payment for personal leave, and the absence may be treated as ‘absent without leave.’
Other types of leave that may require evidence include:
- unpaid carer’s leave
- compassionate leave
- family and domestic violence leave
- community service leave
- parental leave, including other related leave types
Where evidence may be requested under the Fair Work Act 2009 (FW Act), employees can submit a Commonwealth statutory declaration as evidence. Employers cannot refuse to accept this as valid.
A statutory declaration is a legal document stating facts that the person declares to be true and accurate. Statutory declarations are used for various purposes, such as visa applications, insurance claims, and superannuation claims, and can also serve as legal evidence. Providing false or misleading information on a statutory declaration is a criminal offence. Commonwealth statutory declarations (rather than state or territory ones) are applicable in employment matters involving national system employees.
Traditionally, stat decs had to be signed in the presence of a prescribed person. A prescribed person, under the Statutory Declarations Act, includes licensed or registered professionals, elected officials, or voluntary positions. Common examples include Justices of the Peace, Commissioners for Declarations, legal professionals, and police officers.
Changes to statutory declarations
From 1 January 2024, following the passing of the Statutory Declarations Amendment Act 2023, employees can complete stat decs via their MyGov account and attach their MyGovID. As a result, employees will no longer need to have their declaration signed by a prescribed person.
These changes stem from lessons learned during the COVID-19 pandemic when in-person declarations became difficult. During the pandemic, allowances were made for declarations to be completed electronically and witnessed online. Experience with these allowances and community feedback led to the decision to use MyGov and MyGovID as the electronic means for making declarations.
A MyGov account links users to government services such as Medicare, Centrelink, and the Australian Taxation Office. MyGovID is a way to access government services online, requiring a person to verify their identity. By using MyGovID, employees confirm their identity and the accuracy of the information provided. If an employee creates a stat dec via their MyGov account and attaches their MyGovID, the declaration carries the same legal weight as one made in front of a prescribed person. If they provide false or misleading information, they can face legal consequences.
How employers can manage this change
Employers must accept stat decs as valid evidence for leave requests, as long as the declaration has been made in front of a prescribed person or with the employee’s MyGovID. However, employers can still take disciplinary action if it is found the employee has provided false or misleading evidence. Providing false information to seek a financial benefit (e.g., paid personal leave) is considered fraud, and may be grounds for summary dismissal. Even without financial benefit, providing false evidence can still be grounds for dismissal.
While employers must accept statutory declarations, they can still request medical evidence to meet their obligations, such as maintaining a safe and healthy workplace for both the ill or injured employee and their colleagues. If the employer lacks sufficient information to ensure an employee can return to work safely, they may request further evidence. Employers can also reasonably prevent the employee from returning to work until they can appropriately manage the risk.
In cases where there are concerns about an employee’s fitness to return to work, employers may request medical advice. Refusing to obtain this advice can be considered unreasonable, unless the employer has not made reasonable accommodations, such as covering the cost of the appointment or providing transportation. In such cases, an unreasonable refusal may also be grounds for dismissal.
If employers notice a pattern of employees frequently using stat decs, they should seek professional advice, as this may indicate other workplace issues.
