Why, I do declare! – Statutory declarations in the employment context

In Australia, we rely on statutory declarations for a range of purposes, from declaring identity details when documents are lost to making statements about particular situations, including in the employment context.

What is a statutory declaration?

In essence, a statutory declaration is a written statement of fact declared to be true.

There are a number of different forms of statutory declarations, depending on the location and subject matter of the declaration. For Federal matters or matters concerning Federal legislation, a Commonwealth statutory declaration is required and is made under the Statutory Declarations Act 1959 (Cth). A State or Territory statutory declaration may be required for more local, state managed matters such as drivers licence issues or road toll matters.

The swearing (or declaring) of a statutory declaration is a serious matter. All statutory declarations must be witnessed by an appropriate person, such as a Justice of the Peace or a solicitor, and must be declared to be true. Penalties apply for making a false statutory declaration, including fines and imprisonment. 

Statutory declarations as employee evidence

For example, statutory declarations may be used by employees as “evidence that would satisfy a reasonable person” that leave should be granted for a specific purpose.

Evidence of this kind may be provided to support the taking of personal, carer’s or compassionate leave (see s107 of the Fair Work Act 2009 (Cth) (FW Act)) or parental leave (see s74 of the FW Act).

In these circumstances, a statutory declaration is often provided in lieu of a medical certificate or other certified evidence, such a death certificate in the case of compassionate leave. 

Employers rely on the veracity of statements made by their employees in statutory declarations, and so employees should always be encouraged to do the right thing and be truthful.

An employer’s policies can set out the process of making and accepting statutory declarations as evidence to support the taking of leave and can also reiterate the consequences of making a false declaration. That is – making a false declaration is a criminal offence and may be referred to the police for investigation. It may also warrant disciplinary action up to and including termination of employment.

Statutory declarations and the Fair Work Act 2009 (Cth)

Commonwealth statutory declarations are required for matters concerning the FW Act including matters before the Fair Work Commission (FWC).

The FWC has no less than six forms that specifically require or recommend a statutory declaration, as well as a separate, generic statutory declaration form for use when no specific statutory declaration form exists.

The FWC treats the making of statutory declarations very seriously as it relies on the statements contained in statutory declarations when making decisions that affect both employers and employees.

In fact, the Full Bench of the FWC recently quashed a decision to approve an Enterprise Agreement (EA) based on a false statutory declaration and referred that false statutory declaration to the Australian Federal Police for investigation.

In that case, Pennyco Pty Ltd t/a Zarraffas West Ipswich [2017] FWCFB 4852, a statutory declaration in support of an application for the approval of an EA was lodged with the FWC and contained the following false statements:

  • That the employer had eight employees;

  • That the employees were provided with the Notice of Employee Representational Rights;

  • That the employer provided the employees with access to a copy of the proposed EA during the consultation period;

  • That seven employees voted in favour of the EA; and

  • That the EA passed the better off overall test.

In reality, the employer did not have any employees at the time the EA was lodged with the FWC, it had not followed the processes as stated in the statutory declaration and casual employees working on the weekends would not better off overall under the EA than they would have been under the relevant award.

In reliance on the veracity of the statutory declaration, the FWC approved the EA. It wasn’t until sometime later when a law firm was conducting workplace relations training with the employer that issues with the approval of the EA were discovered.

The law firm who conducted the training later represented the employer before the Full Bench of the FWC during an appeal of the decision to approve the EA.

The employer claimed that its directors, one of whom signed the statutory declaration, were inexperienced and were following the directions of a workplace relations consultant when making and lodging the EA.

The directors claimed that the workplace relations consultant had prepared the EA and the supporting statutory declaration and that they assumed the documents were all correct. 

The workplace relations consultant claimed that he had provided clear instructions to the directors about the process to follow in making the EA and had asked them to read and verify the statutory declaration before signing it.

The Full Bench allowed the appeal on public interest grounds and quashed the decision to approve the EA. The Full Bench noted that the FWC’s statutory declaration form used in this case alerted the declaration maker, at least three times, to the seriousness of making a statutory declaration and the potential consequences of including any false statements.

Without providing a view as to who was at fault, the consultant or the directors, the Full Bench referred the false statutory declaration and associated evidence to the Australian Federal Police for investigation as to whether a crime had been committed.

Lessons for employers

The most important lesson for employers, and those authorised to act for employers, is to read any statutory declaration prepared on your behalf very carefully. Companies cannot make statutory declarations and as such you will be personally declaring the contents of the document to be true. All statements must be true to the best of your knowledge, not someone else’s knowledge.

Similarly, when you are provided with a statutory declaration as evidence, it must also be true. Employees should be reminded of the serious consequences that may flow from providing a false declaration to their employer, including referral to the police. 

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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