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what can, and can’t, be done in requiring employees to have COVID-19 vaccines
announcements regarding the national roll out of COVID-19 vaccines, many
employers are wondering whether they can properly require their employees to be
vaccinated before returning to the workplace. The issue for employers will
centre upon whether any employer directed requirement to get the vaccine is a
‘reasonable and lawful directive’ (and this may well be guided, on a case by
case basis, by reference to the inherent requirements of an employee’s role). IR Minister
Christian Porter has foreshadowed that State public health orders will largely
govern workplace vaccination requirements and that employers can expect to see
some sort of guidance or direction as more information about the vaccine roll
out is announced. Whilst this doesn’t help forward planning employers, there is
some precedent surrounding employers who require employees to get the flu shot.
For example, in Victoria, the Deputy Chief Health Officer has issued directions
requiring any person attending a residential aged care facility to have an up
to date vaccination against influenza and we may see similar directions issued
with respect to the COVID-19 vaccine in similar sectors (which, in turn, gives
employers in this sector a basis upon which to make it a condition of
employment to obtain the flu shot - however this differs from state to state).
who are considering mandatory COVID-19 vaccinations should ‘watch this space’
as directions from the State and Federal Governments are likely to affect what
employers can and can’t do with respect to the COVID-19 vaccine. Once
directions are issued, employers should obtain legal advice and consider
implementing a vaccination policy which sets out a clear process for employee
objections (inclusive of properly considering the reason for any objections and
making exceptions in certain situations). In the meantime, a proper review of
position descriptions (with the ‘inherent requirements’ consideration at front
of mind) would be a worthwhile exercise.
prepared for the end of JobKeeper
With the cessation of JobKeeper on 28 March 2021, it is
likely that a significant number of redundancies will necessarily occur.
This will invariably result in an overall greater number of unfair dismissal
claims being made. Further, when JobKeeper Enabling Stand Down Directions cease
to have effect on 28 March 2021, full time and part time employees will have an
automatic right to return to their pre stand down hours unless the traditional
stand down provisions of the Fair Work Act 2009 (Cth) (FW Act) can be
relied upon. As a result, it is likely that employers will become engaged in
disputes with employees around how, and for how much of their working time,
employees return to their usual workplaces. For more about this topic, you can
see our earlier article here.
should ensure that any redundancies are implemented appropriately by reference
to the FW Act, including by ensuring that the job to be made redundant is no
longer required to be done by anyone, that consultation (where required by a
modern award or enterprise agreement) occurs both in the verbal and written
sense and that redeployment is suitably considered and addressed. Employers
should consider commencing the consultation process prior to the end of
JobKeeper (with 28 March 2021 as the specified termination date) to ensure
adequate time, both to go through a properly meaningful consultation process
and to give the appropriate period of notice of termination.
Where an employer wants an employee to continue working
reduced hours after the cessation of Jobkeeper Enabling Stand Down Directions,
the employee will need to (in most cases) agree to it. The applicable modern
award or enterprise agreement may set out requirements for employers relating
to changing hours of work (which, generally, require consent from the employee
and some form of consultation).
Employers should start considering whether they will need to ask employees to
continue working reduced hours post 28 March 2021 and, if so, familiarise
themselves with the relevant provisions in the applicable modern award or
enterprise agreement and commence a consultation process sooner rather than
Get ready for changes to the Fair Work Act
Following the introduction
of the Government’s IR omnibus legislation (the Fair Work Amendment
(Supporting Australia’s Jobs and Economic Recovery) Bill (Bill))
into Parliament on 9 December 2020, it is likely that there will be significant
changes to the FW Act this year. The proposed changes in the Bill include (but
are not limited to) providing certainty to businesses and employees about
casual employment (including adding a definition of what is a casual employee
as well as a casual conversion entitlement in the National Employment Standards
(NES) in the FW Act), streamlining
and improving the enterprise agreement making and approval process, inserting
new flexible work directions and strengthening the FW Act compliance and
enforcement framework to address circumstances of wage underpayments.
will inevitably be changes to the Bill before it receives assent and becomes
law. Until that occurs, the current workplace laws will continue to apply and
employers must comply with them. In the meantime, employers should keep a
watchful eye on the passage of the Bill through Parliament and any commentary
that arises relating to any changes.
There are some actions that
employers can take now in relation to the proposed casual employment changes in
the Bill. We discuss those actions in more detail under item 4.
the casual workforce
Tidying up casual employment relationships will be a focus
for many employers this year. To that end, employers (and particularly the
labour hire industry) will be avidly awaiting the decision of the High Court in
the Workpac v Rossato  FCAFC 84
(Rossato) case, although just how
avidly and for how long will hinge on whether the Bill (referred to in item 3
above) is enacted before the High Court’s decision is issued.
The Bill (referred to above in item 3) proposes to include
a definition of a ‘casual employee’ in the FW Act, which would essentially
alter the ramifications for employers of the decision made by the Full Bench of
the Federal Court in Rossato (namely, that the employee was not a casual
employee even though his contract of employment described him as such). Per the proposed definition in the Bill, a
person will be a casual employee if they accept an offer of employment that
does not contain a firm advanced commitment to continuing and indefinite work
according to an agreed pattern. This new proposed definition concentrates on
the offer and acceptance of employment and takes a ‘once a casual, always a
casual’ approach, such that whether the employee is subsequently treated in a
way which is more akin to a permanent employee (albeit, without receiving leave
and other entitlements), will be irrelevant.
The Bill also proposes, in
relation to casual employment, to:
Make changes to
offsetting arrangements to reduce any amount payable to an employee where a
Court finds the employee was not actually a casual employee.
Amend the NES to
include casual conversion provisions which, among other things, will prevent
employers from converting casuals to fixed term contracts.
employees with the right to request conversion in certain circumstances.
employers from terminating, or otherwise varying, an employment relationship
with the intention to circumvent any conversion obligations.
These changes will apply
retrospectively – meaning that they will apply to existing employees as well as
ACTION: In view of the proposed new
casual employment provisions in the Bill, employers should take the approach of
ensuring that: all casuals are properly specified as casual employees in their
contracts of employment; the loadings paid to casuals are properly specified and
are easily identifiable amounts; and they start workforce planning now by evaluating
their casual workforce and identifying any employees that may meet the criteria
for conversion (noting that the relevant Award/Enterprise Agreement may already
mandate casual conversion steps be taken). Employers should also get ready to,
as soon as possible after the enactment of the Bill, provide all casual
employees (both new and existing) with the Fair Work Ombudsman’s (FWO) ‘Casual Employment Information
working from home arrangements and risks
Due to the COVID-19 pandemic and the associated public health orders, subject to their industries and occupations, the majority of employees in Australia worked from home for a period of time in 2020. Many of those employees are still working predominantly from home – and a good majority of them like it that way. Many employers are content to have these, or some of these, working from home arrangements continue, particularly where they have seen no resulting decline in productivity, the ability to properly manage or in the state of the workplace culture. In recognition of this shift towards remote working, the Commission is currently considering whether a clause facilitating agreed working from home arrangements ought to be permanently included in the Clerks – Private Sector Award 2020. Many employers, though, are keen to have all or most of their employees back in their traditional workplaces as soon as it is safe and otherwise appropriate (including by reference to government guidelines, particularly in Victoria) for that to be the case. Where what the employers want and what the employees would like are in conflict, this situation is likely to (if not already) present challenges for employers. In this regard, employers should note that their ability to give reasonable and lawful directives (including as to work hours and where the work is to take place) and to expect compliance with those directives, remains. Provided that: it is safe for employees to return to work; government directions permit; and the employee’s usual employment conditions and any relevant personal circumstances are properly taken into account in the making of a directive, the employer will generally be entitled to return the workforce in the way it reasonably considers best. An increase in requests by employees for flexible working arrangements as well as for individual flexibility arrangements under applicable modern awards is likely.
Also in relation to working from home arrangements, given
the swift implementation of the public health orders requiring employees to work
from home where possible, it is to be expected that most employers did not have
the opportunity to properly conduct risk and other assessments for each home
working environment. Employers can be held liable for any incidents that occur
whilst an employee is working from home. In order to comply with their
obligations under work health and safety laws, employers are required to (among
other things) and so far as is reasonably practicable:
· Provide and maintain a work environment that is
without risks to health and safety.
Monitor the health of workers and the conditions
of the workplace for the purpose of preventing illness or injury.
With the ongoing nature of the pandemic, and the fact that
many workers are likely to want to continue working from home moving forward,
employers need to act now to ensure that they are discharging their positive
duties owed to employees under applicable work health and safety laws.
should establish their positions on ongoing working from home arrangements as
early as possible in the piece, and should ensure that a consistent approach to
the issue is adopted and maintained. Employers should expect an increase in
requests for flexible work arrangements as well as for individual flexibility
arrangements under applicable awards. In this regard, employers should ensure
that they properly understand each concept, their differences, the respective
eligibility requirements and how to properly and lawfully contend with the
Employers should conduct comprehensive risk assessments of
home working environments to ensure safe workspace set-ups (including
ergonomics of workstations) and identify (and manage/rectify) risks, such as
trip or fall hazards. Often this type of risk assessment is conducted via a
checklist which the employee is required to complete. It is important for
employers to be aware that the obligation to ensure that employees are safe
extends to psychological safety. Employees working from home for long periods can
feel isolated which may, in turn, increase the risk of employees experiencing,
or exacerbating, mental health issues. To contend with this, employers should
ensure that they put in place systems which ensure ongoing communication with
workers, including those working remotely, whether that be by regular virtual
meetings, emails and/or phone check-ins.
Whilst not specific to work health and safety risks,
employers should also be cognisant of the increased cyber risks associated with
employees working via their home internet and/or on devices that other persons
in their household may be able to access. Rolling out training to ensure
employees are aware of the increased risks may be one way to contend with this.
and ensure compliance with Awards / Enterprise Agreements and the Fair Work Act
In Victoria the Wage Theft Act 2020 (Vic) is expected to take
effect from 1 July 2021. This new law creates for Victorians various
criminal offences in relation to employee entitlements and establishes a State-based
Wage Inspectorate with wide investigative powers. Among other things,
directors and officers may be liable for offences, with potential imprisonment
of up to 10 years and fines will be up to $198,264 for individuals and $991,320
for companies. This new law, combined with proposed underpayment measures to
have Federal effect in the Bill and the FWO’s significant activity nationally
in the underpayment space, makes it more important than ever, from a risk
management perspective, for employers to ensure they are complying with their
minimum modern award/enterprise agreement and/or FW Act obligations.
ACTION: Employers and (where applicable) their Directors, Human Resources
staff and Managers should (at a minimum) be familiar with the applicable modern
award/s and/or enterprise agreements which apply to their employees, and their
terms, in order to readily identify (and quickly address) any instances of
non-compliance. In addition, employers should: confirm that proper
record-keeping (to accord with the FW Act and regulations) is occurring; review
wages and payroll procedures to ensure that amounts paid to employees are
sufficient and compliant under the relevant modern award or enterprise
agreement; and obtain good quality guidance and advice from expert
professionals in respect of understanding and navigating modern
awards/enterprise agreements, the FW Act and regulations, and managing
ready for climate to become a workplace issue
In late 2019 and early 2020, bushfire smoke cloaked much
of Australia. The air quality in parts of the country was above hazardous
levels and residents were told to stay indoors. This became a workplace health
and safety problem for many employers, each of which has an obligation to
provide a safe workplace without any risks to health. With further and more intense
bushfire seasons predicted over the coming years, it is inevitable that climate
change will soon become a workplace issue.
will need to ensure that they monitor workplace conditions and have clear
disaster plans in place, with adequate numbers of staff who are trained and
able to enact disaster plans and take on additional duties during emergencies.
The COVID-19 pandemic has demonstrated that many employees can work from home
effectively and it is likely that ‘work from home’ orders will form a necessary
part of any disaster plans (of course, the added difficulty in the context of
bushfires is that an employee’s home may not necessarily be a safer place to
work and this is something that employers will need to take into account).
In addition to reacting promptly and appropriately to
disasters, employers should prepare for increased awareness and activism from
employees and stakeholders regarding climate change issues, requiring employers
to do better, be more sustainable and do their part to make a difference.
workplace harassment policies, training and protocols
The spotlight is squarely on workplace harassment
following the release of the Australian Human Rights Commission’s (AHRC) report on sexual harassment in
workplaces, Respect@Work, in March 2020. The report criticised the nature of
the existing legal and regulatory system, asserted that it does not
sufficiently place a burden on employers to prevent harassment from occurring
in the workplace and made 55 recommendations for change. The Federal and State
Governments are currently considering the report and are likely to adopt some
of the recommendations made within it.
Employers should keep abreast of any updates from the Federal and State
Governments regarding changes to the laws. In the meantime, employer’s should
ensure that they have in place suitable, up to date workplace harassment
policies noting that it is not enough to just have such policy in place.
Employers must, from the perspective of legal claims risk management, take
reasonable precautions to prevent an employee from breaching the policy
obligations. This requires employers to, among other things, implement training
(and not just at the point of induction) in respect of the policies and the
type of conduct that will not be tolerated and keep records of the training and
attendees. Employers should also ensure that they have in place proper
protocols for dealing with complaints. It may be that the policies, and
consequential training, need to be amended following the adoption of any
recommendations from the AHRC’s report however, doing nothing in the meantime
is not recommended from a claims risk perspective.
Contractors will be a hot topic this
year with the High Court recently granting special leave in two cases seeking
to clarify whether workers are independent contractors or employees. Persons
who engage contractors, particularly those who do so without having obtained
specialised advice as to the arrangements, may be exposing their business to
significant legal risk. Employers are prohibited from engaging as contractors
persons who, on the basis of the arrangement as a whole, are employees.
ACTION: Where contractors are or have
been engaged, ensure that proper professional advice is or has been obtained.
The scope of such advice should include an assessment as to whether the contractors
ought to have been engaged as employees in the circumstances and whether the arrangements
subject the business (and potentially the people within the business, including
directors, managers and human resources staff) to relevant risk.
10. Be accountable for diversity,
equity and inclusion
There has been a drive over the past few years to make
Australian workplaces more diverse and inclusive. Now that the Black Lives
Matter movement has put inequality and discrimination squarely in the
spotlight, it is inevitable that employers will receive increased pressure from
employees, unions, customers, boards and other stakeholders to prioritise this
issue in 2021.
should assess their workforce, identify any issues and put in place (and where
necessary, enforce) strong and effective policies and diversity and inclusion
As you go forth into 2021, clearly to be an eventful year
in this space, if you have any enquiries or requires any assistance as to any
of these issues or others, our workplace team nationally is well placed and
prepared to assist.
For further information / assistance regarding next steps and the issues raised in this article, please contact the authors, Michelle Dawson, Partner or Emily Dempster, Special Counsel, or your usual contact at Moray & Agnew.