If an award-covered employee stops coming to work without permission or explanation, an employer can’t automatically assume the employee has abandoned their job.

Under the Fair Work Act 2009 (Cth), modern awards can’t include terms that override the National Employment Standards (NES) or create automatic terminations that aren’t allowed by the Act.

Recent cases confirm that “abandonment of employment” clauses in awards do not automatically end employment. They may suggest abandonment, but the employer must still make a deliberate decision to terminate and communicate that decision to the employee — see Bienias v Iplex Pipelines Australia Pty Ltd (t/as Iplex Pipelines Australia). Until that happens, the employment continues.

The Fair Work Commission has also said employers should try to contact the employee to find out why they’re absent before deciding they’ve abandoned their job — see Thompson v Zadlea Pty Ltd (t/as Atlas Steel).

Automatic termination clauses that bypass NES rules (like notice of termination) are invalid — see CFMMEU v Macmahon Contractors Pty Ltd.

In summary:

• Try to contact the employee before deciding they’ve abandoned their job (Thompson v Zadlea Pty Ltd).
• Employment doesn’t end automatically — the employer must decide and communicate termination (Bienias v Iplex Pipelines Australia Pty Ltd).
• Any action must comply with the Fair Work Act and NES.

In short, an employer must take reasonable steps to contact the employee and make a clear, informed decision before ending employment. Abandonment clauses in awards do not automatically terminate employment.