Workplace Rights and Entitlements

It’s as certain as death and taxes when the federal government changes we get new workplace laws.

And so, it was perhaps no surprise that shortly after coming to power the labour government introduced a number of proposed changes to the Fair Work Act 2009 (Cth).  With a flurry of political activity in the weeks leading up to the final sitting day for parliament, changes were drafted, redrafted and redrafted again, such that on 2 December 2022 the proposed amendments were passed in the House of Representatives.

Now while the timing of the commencement of some of the changes will vary, what we do know is that the amendment to the Act includes over 20 changes, which is the most significant singular change to the Act since its inception.  Whilst some of these changes are relatively minor and are perhaps uncontentious, there are those, such as multiple employer bargaining, that stand to alter the workplace landscape for many years to come.

As we move into the Christmas and New Year period and as employers and employees attempt to grapple with and unpack these changes we have put together very brief snapshot of some of the changes that employers and employees should be aware of.

Multiple-Employer Bargaining

The Act will introduce requirements for employers to enter into negotiated bargaining where a common interest exists.

There are specific requirements around this, including the number of employees the employer has and the industry they operate in. For example, employers with less than 20 employees will not be required to participate nor if they operate in the building and construction industry.

Pay Secrecy

The Act will now prohibit pay secrecy clauses in employment contracts.  Furthermore, the Act also now affords an employee the workplace right to choose whether or not to disclose their remuneration and conditions of their employment.

Flexible Work Arrangements 

An employee will still be able to make a request for flexible working arrangements, however the Act will now grant an employee the ability to make an application to the Fair Work Commission to arbitrate the matter where an employer refuses the request on reasonable business grounds, and the employee is unhappy with the employer’s decision.

Fixed Term Contracts

Fixed Term Contracts will still be lawful under the Act, however the Act will now limit the number of consecutive contracts to two (2) or a maximum duration of two (2) years, for the same role.

Some exceptions to this will apply, including (but not limited to) where the employee earns over the high-income cap for the first year, or the employee has a specialised skill set that the employer does not have, but needs in order to do a specific task.

Want to know more?

The above list is by no means exhaustive and so to assist with understanding these widespread changes, we will be conducting a series of webinars in the New Year.  These will be designed to help you understand the changes, how they will impact business (both employer and employee) and steps that you can take to be ready.  We will confirm in January but anticipate these to be held on two consecutive Wednesdays – 25 January and 1 February.  Two sessions will be required to cover the volume of material.  We hope you can join us.

To secure your place at our webinars or for answers to any questions you may have now, please do not hesitate to reach out to us at, admin@andersongray.com.au.

Please contact a member of our team for advice on any aspect of the above via 1300 851 430.

Selling or purchasing a business may be an exciting milestone for a business owner, however it can be an overwhelming period of time not just for the business owner but employees as well. As the question is often asked what happens to employees? What are the obligations of new and exiting employers? What happens with employee entitlements?

What happens if a purchaser of a business doesn’t want the employees to transfer across?

If the purchaser of a business does not want employees to transfer across, or has elected to employ only a certain number of employees, the previous employer will need to terminate the employee’s employment, provide the relevant notice period under the applicable industrial instrument and (more than likely) attend to payments for redundancy as their role is no longer required to be completed.

In this instance, the purchasing employer needs to ensure that they do not have any obligations imposed on them to offer employment to the exiting employers workers.

What is a transfer of business?

Under the Fair Work Act 2009 (Cth) (the Act), a transfer of business is deemed to occur if:

1. the employment of an employee (the transferring employee) has been terminated;
2. within three months of being dismissed, the employee becomes employed by the new employer who has acquired the business;
3. the work the transferring employee performs for the new employer is substantially the same; and
4. at least one of the following applies between the two employers:
5. 1. there is an arrangement that the new employer owns, or has use of some or all of, the old employer’s assets that relate to the work the employee is completing;
   2. the work the transferring employee is completing is outsourced by the old employer to be completed on behalf of the new employer; or
   3. the old and new employers are associated entities within the meaning of the Corporations Act 2001(Cth).

Period of service

Under the Act, the new employer after a transfer of business must recognise an employee’s period of service with their previous employer for certain entitlements such as:

1. sick and carer’s leave (also referred to as personal leave);
2. requests for flexible working arrangements; and
3. parental leave entitlements.

However, if the new employer elects not to recognise an employee’s period of service for certain entitlements and informs the transferring employees of this decision prior to their employment commencing (and prior to the transfer of business occurring), an employer may not be required to recognise prior service for the calculation of entitlements such as:

1. redundancy entitlements;
2. annual leave accruals;
3. the minimum employment period required to be able to have standing to file an unfair dismissal application; and
4. notice periods.

If the new employer wishes to restart the transferring employee’s minimum employment period, they will need to issue correspondence in writing confirming this decision prior to the transfer of employment occurring.

What about annual leave?

If an employee is transferring across as a result of a business acquisition, two main situations arise. Either the annual leave accruals will be transferred across to the new employer and everything will continue as per usual or alternatively, if the two employers are not associated entities, the new employer can decide not to recognise an employee’s service with the old employer and the old employer will be obliged to pay out the employee’s untaken accumulated annual leave, accrued up to the date of the transfer of business.

What happens to the terms and conditions of employment?

When there has been a transfer of business as outlined in the Act, certain types of industrial instruments may “follow” the employee to their role with the new employer. The types of industrial instruments which can transfer across and will continue to apply are:

1. an Enterprise Bargaining Agreement or Collective Agreement which is a specific type of Agreement approved by the Fair Work Commission;
2. a workplace determination;
3. an Award which specifically names the Employer.

Depending on the circumstances, sometimes an individual flexibility arrangement or a guarantee of annual earnings may also continue to apply.

Will the new business owner get copies of the employee records?

The Regulations which accompany the Act require the previous employer to transfer the employment records for each transferring employee at the time the settlement or agreement is finalised. These records must then be kept by the new employer for a period of 7 years.

The Act also requires an employer to keep records of employment for a period of 7 years. Consequently, if employees are not transferring then the previous business owner must still retain employee records, and an employee is entitled to request of a copy of those records.

Does an exiting employer need to pay for any entitlements at settlement?

The answer to this question will depend upon the circumstances of each sale, however the general position under the REIQ Business Sale Contract is that at settlement, the Seller (or old employer) must provide an adjustment to the Buyer for 70% of the transferring employees sick leave, annual leave and long service leave entitlements (if they have been employed for five years or more).  Of course, the percentage of that adjustment is negotiable between the Seller and Buyer, and this is often done where there are unusually high levels of sick leave (given there is no certainty that employees will take that sick leave).

Ensuring employees are properly considered in the purchase or sale of a business is critical to the success of the transaction, the ongoing operation of the business and employer and employee relationship.  Unfortunately, it is an area that is often overlooked.

Please contact a member of our team for advice on any aspect of the above via 1300 851 430.

In a recent report, the Fair Work Commission has recommended the inclusion of 10 days of paid family and domestic violence (FDV) leave in 123 different awards.

This has the potential to make these 10 days of FDV available for over 2.5 million Australian workers.

The FWC stated that the introduction of the extra family and domestic violence leave will “help individuals to maintain their economic security, to access relevant services and to safely exit a life free from FDV”.

This comes amidst a reported rise in domestic violence incidents during the period since the start of the COVID pandemic.

It is proposed that modern awards be varied to provide all employees with 10 days’ paid FDV leave in a 12-month period and up to 5 days’ unpaid FDV leave on a per occasion basis. While the leave would accrue from year to year, it would not exceed 10 days. The leave would accrue annually.

The proposed FDV paid leave would apply only at this stage to permanent employees and would be paid at the base rate of pay.

Currently employees under the Fair Work Act, who are dealing with the impact of family and domestic violence can:

• take 5 days of unpaid family and domestic violence leave each 12 month period;
• take paid or unpaid personal/carer’s leave, in certain circumstances;
• request flexible working arrangements.

If you have any questions or require advice in relation to the classification of independent contractors and employees, please contact Anderson Gray Lawyers on 1300 851 430 to speak with one of our employment lawyers.

The Full Bench of the Fair Work Commission has found that the Road Transport and Distribution Award 2020 (the Road Transport Award), which covers short distance truck drivers, also covers and applies to riders and drivers employed by Menulog.

The decision came as a blow to Menulog, who announced in April 2021 that it wanted to adopt an employee based model, rather than engaging its riders and drivers as independent contractors.

On 24 June 2021, Menulog made an application to the Fair Work Commission (FWC) to create a new On Demand Delivery Industry Award, as it argued the 121 modern awards registered with the FWC did not cover or apply to the “on demand delivery services industry”.

The FWC found that Menulog’s business activity of “the collection and delivery of food, beverages, goods or any other item” fell within the definition of ”road transport and distribution industry” in the Road Transport Award.

The Full Bench said that the function of “collection and delivery” by road referred to in Menulog’s proposed industry award, was the same as “transport by road” in the Road Transport Award.  Also, Menulog’s proposed definition of “food, beverages, good or any other item” fell within the expression of “goods, wares, merchandise or anything whatsoever” in the Road Transport Award.

As a result of this decision, the Full Bench said the next step was for consideration to be given as to whether the coverage of employer and employees in the “on demand delivery industries” in the Road Transport Award meets the modern award objectives of the Fair Work Act.

If you have any questions or require advice in relation to the classification of independent contractors and employees, please contact Anderson Gray Lawyers on 1300 851 430 to speak with one of our employment lawyers.

The changes made to the Fair Work Act on 26 March 2021 gave most casual employees the right to have their employment converted from casual to permanent full time or part time employment.

The obligation is now on employers (15 or more employees) to make an offer to convert their casual employees to permanent employment if the casual employee has worked for the employer for at least 12 months and during the last six months has worked a regular pattern of hours.

An employer cannot dismiss or deliberately change, vary, or reduce a casual employee’s hours to avoid their obligation to offer conversion to permanent employment.

The employer must make a written offer to the casual employee within 21 days of the employee reaching the 12 month anniversary of their employment. There is no obligation on a casual employee to accept the conversion offer.  If the casual employee wants to accept the offer of permanent employment they must do so within 21 days of receiving the conversion offer and their acceptance must be provided to the employer in writing.  A verbal acceptance is not sufficient at law.

There are a number of specified reasons provided for in the Act where an employer may decide not to offer conversion to a casual employee, but the employer must write to the employee within the 21 day period of the 12 month anniversary of employment setting out its reasons for not offering the conversion.

Casual employees employed by small businesses (under 15 employees) have the right at their 12 month anniversary to make a request in writing to their small business employer to have their casual employment converted to permanent.  The employer can agree and must then provide a new contract of employment to the employee.  If the employer wants to refuse the request, they must consult with the employee and then provide in writing the reasonable grounds for refusal.

Most employers do the right thing by their employees.  But when they don’t sometimes legal assistance is required.

If you are a casual employee and have experienced or do experience any of the following:

1. You have been employed for 12 months or longer, work a regular roster or pattern of work, have not been offered conversion to permanent employment or your employer has decided not to offer you permanent employment without providing reasons or by reasons that don’t seem correct or reasonable; or
2. You have yet to reach your 12 month anniversary and there is a sudden unexplainable change to your hours of work leading up to the 12 month anniversary of employment; or
3. you are reaching your 12 month anniversary of employment and your employer dismisses you for no good reason, or reduces your hours of work to zero;

…then Anderson Gray Lawyers may be able to help resolve the issues with your employer or assist you in taking any appropriate legal action to enforce your legal rights.

Please contact us for a free case assessment.  Please note, for any dismissal related matter any application to be made to the Fair Work Commission must be made within 21 days from the date of dismissal.

A Modern Award is a document that sets out the minimum terms and conditions of employment in a particular industry, including minimum wages.

On 3 November 2021, the Full Bench of the Fair Work Commission handed down a decision to amend the Horticulture Award 2020 (the Award), which covers, amongst others, employees who undertake harvesting and fruit and vegetable picking work on farms in Australia.

It is well known that employees undertaking fruit and vegetable picking work are predominantly migrant workers, often on working holiday visas, and often undertake this work as a requirement to be granted an extension of that visa.

Prior to the decision, the Award provided for employers and employees to be able to enter into agreements based on a ‘piecework rate’. A piecework rate meant that the income of the employee was entirely based on their productivity in harvesting, meaning that they were only paid for what produce they picked. The decision acknowledged that a significant portion of pieceworkers earnt less per hour than the National Minimum Wage.

The amendment introduced a new provision providing a ‘floor’ for earnings for pieceworkers so that employees working under piecework agreements must be paid for each hour of work; and must be paid at least the minimum rate payable for their classification and type of employment under the Award.

This decision and amendment provides a safety net for employees undertaking work under a piecework agreement and is a significant positive step for employees undertaking harvesting work on farms across Australia.

Note: the current minimum rate under the Award for harvesting work is $25.41 per hour.

If you have questions as to whether your employer is complying with the terms of a Modern Award or have queries about your classification and rate of pay, please contact our office on 1300 851 430.

Both employers and employees have work health and safety obligations when it comes to a safe working environment and the health and safety of employees. It is unlikely that a ‘one size fits all’ approach within a business would be considered reasonable from a legal standpoint when considering mandating vaccination – against covid-19 or otherwise.

Recent decisions out of the Fair Work Commission in Barber v Goodstart Learning [2021] FWC 2156, Kimber v Sapphire Coast Community Aged Care [2021] FWC 1818 and Glover v Ozcare [2021] FWC 2989 related to the issue of employees refusing to comply with directions for mandatory influenza vaccinations (without valid medical exemption).

The findings that have resulted from these cases indicate that requiring an employee to receive an influenza vaccination in higher risk industries – i.e. childcare and aged care – is likely to be considered a lawful and reasonable direction that can form a valid basis for terminating an employee’s employment.

What we are yet to see is a decision regarding an employee who has refused to be vaccinated and does not work in a ‘high risk’ industry such as aged care or childcare or provide an essential service.

Attending work around unvaccinated colleagues

Employees do have the right not to attend work or to cease work if they have a genuine, reasonable concern that they would otherwise be exposed to a serious risk to their health or safety. However, what would need to be considered in the circumstances around non vaccinated employees would likely be factors such as:

1. if the work is to be conducted in a well-ventilated space;
2. whether social distancing can be observed in the space;
3. whether masks are being worn in the workplace;
4. whether the work is to be done in an area of low case transmission etc.

It would most likely be considered a lawful and reasonable direction for an employer to direct an employee who is hesitant or refusing to attend work with unvaccinated colleagues, to attend or face possible disciplinary action.

Some people may be concerned about whether or not to get a vaccination which is being mandated by an employer for fear of suffering side effects. It should be noted that there may be the ability for an employee who has suffered side effects to a vaccination which they got as part of a mandate by their employer, to make a workers compensation or personal injury claim.

In a recent decision out of the New South Wales Personal Injury Commission in Sara v G & S Sara Pty Ltd, an employer was held liable for the death of an employee who had contracted Coronavirus while he was travelling in the course of his employment. The employee suffered from various significant symptoms and subsequently passed away as a result of contracting the virus. The Commission found that the employee’s wife, who brought the claim, was entitled to compensation as a result of the injury he had sustained during his employment.

At present, there have not been any decisions in relation to an employers expectation that employees get a particular vaccination not being a lawful and reasonable direction. However, at present, it does not appear that alternatives to vaccination have been considered either, for those who do not wish to be vaccinated for reasons other than medical grounds.

It may well be that, in the future, alternate possibilities such as a negative result from a rapid antigen test, mask wearing and social distancing, individually or in combination, would be considered reasonable measures to be taken in workplaces for unvaccinated employees to remain working.

If you are unsure about your rights at work in relation to vaccination or lawful and reasonable directions (vaccination related or otherwise), please contact us on 1300 851 430.

The COVID-19 pandemic has had a significant impact on employment and workplace conditions.  Now with the COVID-19 vaccination becoming more available, there is an increase in employers seeking to require their employees to be vaccinated.

Below we have answered some of the frequently asked questions about vaccine requirements in the workplace.

Can my employer force me to get the COVID-19 vaccination?

 Whether your employer is able to require you to get the COVID-19 vaccine depends on the particular circumstances of the employment and needs to be assessed on a case by case basis.

It should be noted that your employer has a duty to ensure, so far as reasonably practicable, the health and safety of its workers and any other persons on their premises (such as clients and customers).  Therefore, your employer may direct you to be vaccinated against COVID-19 to reduce the risk of COVID being contracted or transmitted in the workplace.

Your employer may direct you to be vaccinated where:

• a specific law requires you to be vaccinated. For instance, a State or Territory public health order has been issued to that effect.
• an enterprise agreement, award or employment contract provides that it is permitted.
• the direction from your employer to be vaccinated is lawful and reasonable.

You may be able to refuse your employer’s direction to be vaccinated against COVID-19.  However, depending on the circumstances, your refusal could result in your employer taking disciplinary action against you, which may include termination of your employment or redeployment.

What does “reasonably practicable” mean?

‘Reasonably practicable’, in relation to a duty to ensure health and safety, means that which is reasonably able to be done in relation to ensuring health and safety.

Whether it is ‘reasonably practicable’ for your employer to direct you to get vaccinated against COVID-19, your employer is required to take into account and weigh up all the relevant matters, including:

• the likelihood of you and other people in the workplace contracting and transmitting COVID-19.
• the degree of harm that might result from you and other people in the workplace contracting and transmitting COVID-19.
• the persons knowledge of contracting and transmitting COVID-19 and the ways of eliminating or minimising the risk.
• the availability of eliminating or minimising the risk of contracting or transmitting COVID-19 in the workplace.
• the costs associated with the ways of eliminating or minimising the risk of contracting and transmitting COVID-19 in the workplace, including whether the risk is disproportionate to the risk.

What is a lawful and reasonable direction?

 As an employee, you are obligated to follow all directions from your employer that are lawful and reasonable.  A failure to follow a reasonable and lawful direction may amount to serious misconduct and result in you being dismissed from your employment.

A direction to be vaccinated will be ‘lawful’ provided the direction complies with any employment contract, industrial instrument (such as an award or enterprise agreement), and any Commonwealth, state or territory law (for example the Fair Work Act 2009 (Cth) and anti-discrimination laws).

Your employer has an obligation under the relevant workplace safety laws to provide and maintain a working environment that is safe and without health risks.

Whether the direction from an employer to be vaccinated against COVID is reasonable, will depend on the circumstances, including the terms of the public health orders in place, the nature of the work being performed, the extent to which employees are working in close contact with other people, the risk of COVID-19 being transmitted in the location the direction is given.

A direction to be vaccinated may be reasonable where:

• employees are required as part of their duties to interact with people with an increased risk of being infected with COVID-19 (such as, employees working in hotel quarantine or border control).
• employees are required to have close contact with people who are particularly vulnerable to health impacts of COVID-19 (such as, employees working in health care or aged care).
• employees interact with other persons (such as customers, other employees or the public in the normal course of employment) and there is community transmission of COVID-19 occurring in an area that your workplace is open to provide essential goods and services.
• a state or territory has made a public health order requiring workers to be vaccinated against COVID-19 in their state or territory (such as, employees working in residential aged care facilities who were required to receive their first dose of the vaccine by 17 September 2021).

A direction to be vaccinated may be less likely to be reasonable where:

• employees have minimal face-to-face interaction as part of their normal employment duties (such as, employees working from home).
• no community transmission of COVID-19 has occurred for some time in the area where your workplace is located.

When can I refuse to follow a direction by my employer to be vaccinated?

You may be able refuse to follow a direction from your employer to get the COVID-19 vaccine if you have a valid medical reason for not receiving the vaccine due to a risk that it could pose to their health and safety, and you have obtained a medical exemption. Services Australia provides a list of valid medical reasons that count as a medical exemptions.

You may also be able to refuse to follow a direction to get vaccinated if your employer’s direction is inconsistent with anti-discrimination laws, which protect employees from being discriminated against because of their race, religion, sex or disability.

If your reason for not getting vaccinated is because of an attribute that is protected under the anti-discrimination laws, such as disability, then a direction from your employer to get vaccinated against COVID-19 could constitute as indirect discrimination.  In such circumstances, your employer should make reasonable adjustments to accommodate you, so you are able to perform your job.

It is, however, lawful for an employer to discriminate against you on the grounds of your disability if:

• the condition or requirement to be vaccinated is shown to be ‘reasonable’ in the circumstances.
• you are unable to carry out the ‘inherent requirements’ of your job.
• the making of adjustments to accommodate you in the workplace would impose an ‘unjustifiable hardship’ on your employer.
• your disability is an infectious disease, which could arguably also include an infectious disease that may exist in the future, and such discrimination is ‘reasonably necessary’ to protect public health.

In determining whether it is reasonable for your employer to mandate COVID-19 vaccinations in the workplace, the court may consider the public health orders in place at the time, the nature of your disability or medical condition, the nature of the work you perform and whether you have close contact with vulnerable people.

Can my employer require me to provide evidence if I have refused to have the COVID-19 vaccine?

Your employer may reasonably request that you provide evidence supporting their refusal to follow a direction to be vaccinated against COVID-19.  However, the collection of any reasons for the refusing to be vaccinated or medical evidence must be reasonably necessary, as it is considered to be sensitive information under the Privacy Act 1988 (Cth).  Therefore, your employer can generally only collect this information with your consent.

Depending on the circumstances, it may be reasonably necessary for your employer to collect the reasons and any evidence for your refusal to consider all the evidence before them in order to consider what action is to be taken, if any.

If you do not provide any evidence to your employer to support your refusal to be vaccinated, then your employer may take disciplinary action against you for failing to follow the direction.

Can I refuse to follow a directive from my employer to get vaccinated if I don’t have a medical exemption or an attribute protected under anti-discrimination laws?

If you refuse to follow a reasonable and lawful direction to be vaccinated from your employer and you do not have a good reason to refuse the direction, your employer may take disciplinary action against you, which may include the termination of your employment.  The failure to follow a reasonable and lawful direction is considered to be serious misconduct and is a valid reason for dismissal.

What if I want to be vaccinated, but I want to wait to get my vaccination?

 If your employer has made a lawful and reasonable direction for you to be vaccinated and you do not comply with that direction, your employer may take disciplinary action against you, which may include termination of their employment.  The failure to follow a reasonable and lawful direction is considered to be serious misconduct and is a valid reason for dismissal.

Next Steps

 If you have concerns about the reasonableness or lawfulness of a direction given by your employer, then please contact us at Anderson Gray Lawyers for a confidential, no obligation discussion about your situation.

We take the time to hear your story and help determine if you have a genuine or legitimate claim.  We can then offer a variety of fee options to suit your situation.

Does an employer have the right to relocate its employees, and what does a reasonable relocation look like?

This question would need to be answered on a case-by-case basis, however, there are some key factors that courts have looked at when determining whether the relocation of an employee is considered reasonable or not, including, but not limited to:

• whether there is a clause in the contract of employment in relation to relocation;
• whether the location of the employees’ role is an implied element of the contract of employment;
• the distance between the two locations;
• the employees’ family or career responsibilities;
• the cost or financial imposition created by the proposed relocation;
• the employer’s efforts to accommodate the employee in transitioning; and
• disruption to the personal life of the employee and any inconvenience suffered as a result.

Case example: In the 2004 case of Han Jian Liu v NHP Electrical Engineering Products Pty Ltd , NHP proposed to close down their facility in Richmond and relocate all employees employed at this location to a Laverton factory. NHP offered to cover relocation costs and offered flexible working hours for transitioning employees. Han’s employment contract expressly stated that his place of work was in Richmond.

• The Australian Industrial Relations Commission found that the requirement for Han to relocate resulted in a repudiation of his employment contract as NHP no longer required his role to be performed in Richmond by anyone.
• Due to Han’s family responsibilities, the role offered to him at Laverton was found not to be comparable nor acceptable for him.
• The role at Laverton was considered to be a new contract of employment between Han and NHP, which Han was unable to perform because of the additional distance and travel time required and the adverse impact on his family responsibilities, and consequently, was not considered reasonable alternative employment.
• It was found that Han’s position, which was at the Richmond facility, was redundant and he was eligible to receive redundancy pay.

Takeaways:

• if a contract of employment is silent on the location of work, the Courts will look to see if there was an implied location in the employment contract and/or if the proposed relocation is reasonable. Factors such as those outlined above may be taken into consideration when making this determination;
• a proposed relocation of employment location could potentially trigger redundancies.

If you believe that you have been unfairly relocated, or if you would like legal advice on a possible breach of your employment contract, please contact Anderson Gray Lawyers on 1300 851 430.

At the start of the vaccination rollout, resentment and hostility abounded in the public comment pages of news sources at the mention of the possibility of employers making a covid vaccination mandatory for employees.  There was some highly publicised debate about the legality of such a move particularly as it remains untested in a court of law. No consensus was reached.

At present, all Covid vaccinations are voluntary, though the Federal Government does have the power to make them mandatory for all persons, employed or not.

Now and into the near future, it would be a foolhardy employer who tried to impose a mandatory vaccination policy on employees as the current limited supply of vaccinations, in conjunction with the Federal Government’s phased rollout plan, quite simply prevents employees from complying with such a requirement.

But, the situation is likely to change, if and when vaccination availability stabilises. At this time, it is probable some employers may take the step of determining employment and employability on the basis of a covid vaccination.  The legal basis for taking such action could be made under workplace health and safety laws where both an employer and employee have a duty to ensure they take all reasonable steps to ensure a safe work environment.

It is more than likely that the prevention of transmission of a highly communicable disease to work colleagues or other persons that employees interact with, by way of vaccination, could be considered a reasonable step in providing a safe working environment. It is also more than likely that preventing the contraction of the disease would be considered a reasonable step by an employee to take care of their own health and safety.  It may also give employers and employees some basis of protection from any potential negligence claims.

For existing employees, employers could incorporate this requirement by amending their policies or for new employees by inserting it as a requirement in a contract of employment.   Of course, there would be no issue for any person who has had the vaccination.

An issue would only arise if an employee or potential employee decided that they did not want to have the vaccination or could not for legitimate reasons have the vaccination.  There are already certain industries or sectors that have mandatory vaccinations requirements for employment with exemptions in certain circumstances.  It is thought that if a Covid vaccination is mandated for a particular industry or sector, then the existing types of exemptions would be applied, the most common being on certified medical grounds, but only time will tell if this occurs.

Employees who refuse vaccination and are penalised by an employer may have recourse against the employer if the directive to get vaccinated does not fall within a lawful or reasonable directive as well as provision within  the various state anti-discrimination acts and the federal human rights act which in summary provide that a person shall not be subjected to medical treatment without their free consent.  There may also be some recourse on the grounds of freedom of thought, conscience, religion and belief.

There is no one size fits all legal perspective as to the question of mandatory covid vaccination in employment.  It will always come down to the unique facts and circumstances of a particular situation in conjunction with a thorough assessment of the rights and obligations of both the employer and employee.

Hopefully this situation doesn’t arise for you, but we are always here to assist if the need arises.
If you believe you have been unfairly treated at work, discriminated against, harassed or unfairly dismissed you can contact us for a free assessment of your legal situation.  We take the time to hear your story and help you work out if you have a legitimate claim.  We can then offer a variety of fee options to suit your situation which may include No Win, No Fee or Fixed Fee arrangements.

On 28 September 2020, a number of changes to the JobKeeper scheme came into effect. JobKeeper is a wage supplement that is paid by the Federal Government directly to employers who then have an obligation to pass that supplement onto the employee. Employers need to demonstrate that they have had or anticipate to have a drop in revenue (usually 30%, but that can vary depending on the type of body) to qualify for JobKeeper.

Original JobKeeper

The original JobKeeper scheme was set up hastily in response to forced closures of businesses to deal with the coronavirus pandemic. Employers who qualified for the scheme had a wage supplement of $1,500 per fortnight paid to them per eligible employee. Eligible employees were full-time, part-time and regular and systemic casual employees who had been employed for one (1) year or more, and who were employed at 1 March 2020.

The effect of the JobKeeper scheme, was that businesses that qualified would have eligible employees wage subsidised no matter whether the employee was stood down, on reduced hours or working their normal hours. Importantly, the original JobKeeper had a ‘one-sized fits all’ approach, where every eligible employee’s wage was subsidised to the value of $1,500 per fortnight. This occasionally resulted in employees who had never actually earned $1,500 being paid $1,500 per fortnight as a result of the JobKeeper scheme. Importantly, if employees worked hours that entitled them to be paid more than $1,500 under a contract of employment, modern award, or enterprise agreement, the employer had to pay them the correct rate of pay pursuant to the relevant agreement.

The JobKeeper scheme also enables employers to change the terms and conditions of an employee’s employment in ways that they were not able to before the JobKeeper scheme. For example, employers were able to stand-down employees with more certainty and clarity than they would have but for the JobKeeper scheme. Employers could also direct employers to take leave in certain circumstances and direct employees to perform work that was different from their employment prior to the JobKeeper scheme. These are known as ‘JobKeeper enabling directions’ and most of these will stay in place with the new JobKeeper. It’s important to note that a JobKeeper enabling direction must be ‘reasonable’ and can be challenged in the Fair Work Commission.

JobKeeper 2 

The changes to JobKeeper predominately amend the amount of the wage subsidy that will be provided to the employer for eligible employees. There is no longer a “one-sized fits all” approach. Instead, the following rates will apply:

From 29 September 2020 to 3 January 2021:

• $1,200 payment per fortnight for all eligible employees whose normal working hours are 20 hours or more per week; and

• $750 payment per fortnight for employees whose normal working hours are less than 20 hours per week.

From 4 January 2021 until 28 March 2021, the payment rates will be further decreased to:

• $1,000 payment per fortnight for employees whose normal working hours are 20 hours or more per week; and

• $650 payment per fortnight for employees whose normal working hours are less than 20 hours per week.

In determining an employee’s ‘normal working hours’ an employer must look at the average hours the employee worked in the four (4) weeks prior to 1 March 2020.

It is important for employees to be aware that this may result in a change in their rates of pay. For example, a full-time employee who is stood down and receiving the only the JobKeeper supplement of $1,500 per fortnight from their employer can now expect to receive $1,200 per fortnight (less any tax). For employees who worked less than 20 hours per week prior to 1 March 2020, they can expect a significant change per fornight; from $1,500 to $750.

Employees should understand that their employer may not continue to receive JobKeeper after 28 September 2020. There are more stringent tests in place for employer’s eligibility. If your employer is no longer receiving JobKeeper, then JobKeeper enabled directions and stand-downs may no longer be lawful and you employer will no longer be receiving a wage subsidy in relation to your employment.  Further, employers will no longer be able to direct employees to take annual leave under the new JobKeeper scheme.

Finally, employees should be keep in mind that certain employers, known as ‘legacy employers’ will be able to make JobKeeper enabled directions in relation to stand down and conditions of work, if they meet certain criteria. What this means, is that your employer may not receive the wage subsidy, but may still be able to change your employment in ways it could not lawfully do prior to the JobKeeper scheme.

Need advice on workplace rights and entitlements? Contact Anderson Gray fo rmore infomation.

There is no denying that the COVID-19 pandemic has demanded a more flexible side from all of us. For most employees, this has meant not only a physical change in their working environment, but also a mental and social one. Employees who have remained attending workplaces, although potentially accompanied by a few colleagues, may find themselves in more isolating positions. In addition, and perhaps even more obviously isolated, are employees who are working from home and live alone. Employees working from home face alternate challenges and distractions compared to those in their usual working environment. Some homes may be places where employees are surrounded by extended family, including children or elderly members, or people who may not be the best company to be around.

It is not unusual that as a result of the pandemic, not only work lives but many aspects of employee’s lives have been impacted. This is a time for employees to communicate with their employers about how their circumstances are changing and how they are coping, what they need from their employer and how they can be supported remotely.

Employees should be open and honest about concerns, struggles or positive points that they find have influenced them or their work. This communication will influence employees’ work lives moving forward, including coming out of this pandemic time. Employees should not be disheartened if they are feeling a somewhat off-balance or uncertain as they and their colleagues likely adapt and respond to situations in different ways.

Employee mental health and wellbeing is just as important as physical health. Employees should not hesitate to reach out and ask for help, or just check in and have a chat with each other. Some employees may already be in a situation where they are living with mental illness or may experience an exacerbation of their illness due to changes in their environment or circumstances as a result of the pandemic, and it is important to reflect on these aspects.

Some pointers to keeping conscious of your health and wellbeing as an employee:

• Create a new routine for yourself that adjusts to your new working environment;
• Get out of the house for fresh air and move your body as often as you can around work, as this is likely greatly lacking, particularly for those working from home;
• Separate your work and home spaces, where possible, and ensure you completely switch off from work at the end of your work day

Take away: Just because the workplace may be an employee’s home or look a bit different to how it used to, this does not take away from the employer’s obligation to ensure a safe and healthy working environment and employees should not be discouraged from raising these topics as part of a consultation process if they have questions or concerns.

If you have concerns about workplace practices and procedures that could be affecting your wellbeing, contact the Anderson Gray team today.

Work is a huge part of every person’s life. Since early 2020, thousands of employees have been affected by the COVID-19 pandemic. There has been a lot of adaptation, and quickly, across the employment landscape.

Work health and safety obligations and standards existed prior to the pandemic and will remain once it has passed. However, what those obligations and standards look like has had to change. This is due to the fact that, for most of us, the pandemic has changed the way we live and work. Each employee’s experience differs for many reasons, including where they live, their type of work and their personal circumstances. For some, it has meant working remotely, entering into an altered and unfamiliar working environment or managing work and care responsibilities.

At Work
Employees should be aware of what policies and procedures are in place at their workplace and any adaptations made in response to the pandemic, or as a result of government regulations. Employees should be notified by their employers, and if not, they should enquire, as to what measures have been implemented into the workplace in response to the pandemic, in order to be able to remain compliant with the government and their employer’s expectations.

Safe work practices for employees in the workplace include:

• Ensuring they are provided with what is necessary to wash their hands;
• Ensuring they are provided with hand sanitizer;
• Ensuring their work environment allows for social distancing;
• Ensuring the physical layout of the workplace or work routine is amended to ensure minimal physical contact;
• Ensuring, if necessary, that masks and gloves are available
• Ensuring that they have a discussion with their employer regarding travelling to and from work, including whether this means taking public transport, or if alternative options need to be considered i.e. working from home.

Working From Home
For most employees, where the industry permits, working from home has been a reality for the majority of the time since early 2020. Working from home can have both negative and positive consequences on employees and their work. Employees should ensure that, as they are physically and socially distanced from their usual workplace environment and colleagues, that they remain in regular contact with their employer and colleagues. Communication becomes even more paramount in these circumstances.

Some safe work practices for employees working from home include:

• Ensuring they set boundaries around routine to have a break between work and home life
• Ensuring they have access to resources that may not be readily available at their home, including stationary, headsets, office furniture etc;
• Ensuring, if relevant, that they have flexibility around care responsibilities and work tasks and hours

Take away: Employees have a level of responsibility for their physical health and wellbeing as well and should practice good hygiene, social distancing and staying away from others if unwell. However, in the workplace, employers have an obligation to ensure a safe and healthy working environment and employees should not be discouraged from raising these topics as part of a consultation process if they have questions or concerns.

If you have a concern about your physical safety at work and would like advice, contact the team at Anderson Gray today.

The Fair Work Commission made a decision on Monday, 27 July 2020 allowing paid ‘pandemic leave’ to staff working in residential aged care. The decision came into effect on Wednesday, 29 July 2020.

WHO

This leave would be available to employees who work in the aged care industry and are covered by:

• the Aged Care Award 2010;
• the Nurses Award 2010; and
• the Health Professionals and Support Services Award 2010.

This includes full-time, part-time and eligible casual employees. To be an eligible casual employee, a casual needs to have been employed on a regular and systematic basis.

WHAT and WHEN

Employees are entitled to up to 2 weeks paid pandemic leave if they cannot work (including from home) because:

• they are required to self-isolate or quarantine (including while waiting for a coronavirus test result);
• they are showing symptoms of coronavirus and have been advised to self-isolate or quarantine;
• they have come into contact with a person suspected of having contracted coronavirus; or
• measures are taken in response to coronavirus (e.g. closing a facility).

HOW

Conditions on paid pandemic leave:

• employees must be aged 17 or older and be likely to have worked during the self-isolation period;
• employees need to have already been tested for coronavirus for each occasion of leave, or agree to be tested asap (if they don’t agree, they aren’t entitled to take the leave);
• employees do not have to accrue the leave, it is available in full immediately;
• employee’s can’t take paid pandemic leave if their situation means they’re entitled to take paid sick or carer’s leave instead;
• employee’s can’t take the leave if they’re on workers compensation benefits because of contracting coronavirus; and
• the leave needs to start prior to 29 October 2020 (but can finish after this date).

HOW MUCH

• Full-time employees will be paid their base rate for their ordinary hours of work (the same as taking normal sick leave);
• Part-time employees will be paid the higher of:

• their agreed ordinary hours or work; or
• an average of their weekly ordinary hours of work for the previous 6 weeks; and

• Casual employees will be paid an amount based on an average of their weekly pay over the previous 6 weeks.

There are other conditions surrounding the taking of paid pandemic leave, including notice and evidence requirements.

If you believe you are eligible or are unsure and would like to find out, please contact Anderson Gray Lawyers on 1300 851 430.

A recent decision of the Federal Court has blurred the lines between permanent and casual employment with a casual worker being found to be eligible for entitlements usually reserved for permanent employees.

Around 20 per cent of Australian workers are engaged as casuals. As a result of this casualisation of the workforce many workers are now in a situation where they are working full time hours on singular or multiple contracts of employment without the security or benefits of full time on-going employment.

Casual employees are not generally entitled to paid personal leave, annual leave, or for public holidays when not worked. In consideration for not being eligible for these entitlements casuals are supposed to be paid a higher hourly pay rate than a permanent employee.

However, there have now been two cases Workpac v Skene and Workpac v Rossato which have examined and determined that just because an employer says an employee is a casual in a contract of employment does not mean that the employee is actually a casual. In each of these cases the courts found that the two employees were not casuals.

These cases were in relation to a labour hire company however, the rulings are not limited to labour hire company employees and the principles can be applied to the facts of any casual employment.

In order to consider whether a casual employee is really a casual employee some of the facts which are now necessary to look at are:

• how the rate of pay is set out in a contract of employment and whether it specifies a separate casual loading rate;
• whether the pay rate is in accordance with relevant casual rates provided by the applicable modern award or enterprise agreement;
• the commitment given by the employer to the providing work and whether this work was stable, regular and predicable;
• the length of time the employee has been working with the employer;
• whether there was regular rostering; and
• where there is an ongoing contract or a number of contracts.

If there is no written contract of employment the same principles can still be applied.

The current legislation and the current rulings in the Workpac cases may give some employees, the right to be correctly classified as permanent employees and be paid or back paid statutory leave entitlements, though it is noted that Commonwealth has signalled that it may look at amending the legislation on which the Workpac rulings are based.

Should you think that your casual employment might be permanent employment please contact us for a free case evaluation.