Insights & News

April 12, 2021

What are the proposed changes and what do they mean for employers?

Last Thursday, the Federal Government announced its response to the Respect@Work Report.  The Respect@Work Report was released as a result of the National Inquiry into Sexual Harassment in Australian Workplaces 2020, an inquiry led by Sex Discrimination Commissioner Kate Jenkins.

The Report made 55 recommendations, directed at reducing workplace sexual harassment and creating safer, more respectful and productive Australian workplaces. Amongst these 55 recommendations were proposed amendments to the Fair Work Act 2009 (Cth), Sex Discrimination Act 1984 (Cth), Workplace Gender Equality Act 2012 (Cth) and the Australian Human Rights Commission Act 1986 (Cth).

In its reply, titled “A Roadmap for Respect”, the Government has responded to the report’s 55 recommendations.

What are the key proposed legislative changes?

Of the 15 legislative changes recommended by Kate Jenkins, only 7 have been agreed to in full by the Government.

The recommendations that were agreed to in full, or in part, are as follows:

What about the “positive duty” for employers?

The Government did not adopt the Report’s recommendation that a ‘positive duty’ be placed on employers with respect to preventing sexual harassment in the workplace under the Sex Discrimination Act.  Instead, the Government noted that they consider this duty already exists under WHS laws.

The absence of a positive duty for employers at the Federal level does not mean that employers do not hold positive duties under State sexual harassment laws (such as in Victoria under the Equal Opportunity Act 2010) and does not otherwise mean employers don’t have responsibilities to address sexual harassment.

Even in the absence of a positive duty to prevent sexual harassment in the workplace, employers face liability under the Sex Discrimination Act for sexual harassment that occurs unless it is established that the employer took all reasonable steps to prevent the sexual harassment.

To avoid liability, employers have a responsibility to:

• have an up-to-date sexual harassment policy;
• regularly train employees in relation to sexual harassment;
• have in place clear procedures and processes regarding grievance resolution and investigations;
• properly investigate sexual harassment complaints; and
• implement an appropriate disciplinary process for substantiated complaints.

Out the door for sexual harassers?

Much has been made of proposed Fair Work Act changes that will provide employers with a more explicit basis to summarily dismiss employees who have engaged in sexual harassment.

Sexual harassment has, however, always constituted a valid reason for employers to terminate employment, and in serious cases is already capable of constituting serious misconduct.  At its highest, the explicit inclusion of sexual harassment in the statutory definition of serious misconduct may embolden employers to consider termination of employment as an appropriate sanction, or else to more confidently summarily dismiss an employee where sexual harassment has occurred.  The amendment will not, however, substantively alter an employer’s existing rights in responding to sexual harassment.

Particularly in the case of employees eligible to access the unfair dismissal system, a procedurally fair process must still be followed before making a decision to terminate employment in cases of sexual harassment – nothing in the recommendation will permit a “shoot first and ask questions later” approach.

Alternative avenues?

Another significant recommendation is that of extending the existing regime of the Fair Work Commission anti-bullying orders to cover sexual harassment.

This will allow employees an avenue to raise complaints about sexual harassment quickly, but also means that employers must be sure to have their internal policies and procedures up-to-date and implemented correctly, as these processes will be examined by the Fair Work Commission during the process.

At the time that the Fair Work Commission anti-bullying regime was first established, initial concerns about a flood of anti-bullying applications proved to be a mere trickle.  This was to some significant degree seen to be a reflection of the absence of powers by the Fair Work Commission to make monetary awards to applicants.

Given the preponderance of forums in which sexual harassment claims may be pressed, questions may be raised as to whether there will be significant uptake of the Fair Work Commission’s powers to make anti-sexual harassment orders by victims who are already reluctant to engage in existing enforcement systems.

So, what should employers be doing?

Having regard to all of the above, some questions might be raised as to how impactful the proposed changes will be.

In our vast experience, the best approach to addressing sexual harassment in the workplace is, of course, prevention.

In addition to setting strong policies and procedures, the implementation of bystander intervention training is increasingly recognised as a very important and effective tool for identifying and addressing emerging behaviours before they evolve into sexual harassment.

Supplemented by early intervention tools, such as the utilisation of a workplace ombud service such as Ombpoint to equip and empower victims of sexual harassment to respond to unwelcome behaviour, bystander intervention training operates to effectively prevent the escalation of inappropriate behaviour in the workplace.

Should you require assistance reviewing, updating or creating a new sexual harassment policy and procedure for your organisation, exploring training opportunities or should you just want to discuss the proposed changes in general, please reach out to us.

Katie Sweatman
Partner
+61 3 9958 9605
katie.sweatman@kingstonreid.com

Kathleen Weston
Lawyer
+61 2 9169 8415
kathleen.weston@kingstonreid.com

March 19, 2021

On 9 December 2020, the Federal Government introduced a package of reforms that it said were designed to give businesses the confidence to get back to growing jobs, as well as delivering the tools to help employers and employees to work together in a post-COVID Australia.

However, what has returned from the Senate after tortuous rounds of discussions, committee deliberations and, ultimately, significant concessions is a reform package now centred only on addressing casual employment.

While the issues relating to casual employment, particularly in light of the decisions such as WorkPac Pty Ltd v Rossato [2020] FCAFC 84, is an area where legislative action are important, an opportunity to make a sclerotic system less so, is lost.

The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2021, came out of extensive consultation with employer and employee groups trying to find innovative solutions to support struggling businesses, and protect and enhance the rights of workers. It focused on 5 key areas of reform:

• Award simplification
• Greenfields agreements
• Casual employment
• Enterprise agreements
• Compliance and enforcement

Of these 5 cylinders, the Omnibus has arrived at its final destination with only one cylinder operating, only marginally better than a hand powered jalopy, and that cylinder is casual employment clarification.

So, what is on the horizon for employers looking for clarity around their obligations in respect of casual employees?

Finally, a statutory definition of a casual employee

First the Bill will introduce a definition of casual employee. This is designed to confirm that a casual employee is a person to whom an offer has been made and no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person.

Provided the offer of employment is accepted on this basis and employment commences because of this acceptance, the person will be a casual employee without regard to subsequent conduct.

Endless possibilities become clear guidance

In terms of understanding whether no firm advancement commitment exists, the Bill provides a finite number of considerations to look at:

• Whether the employer can elect to offer work and whether the person can elect to accept or reject work;
• Whether the person will work only as required;
• Whether the employment is described as casual employment;
• Whether a casual loading applies.

Future conduct cannot unpick the original agreement

The Bill also clarifies that only conduct at the time of offering and accepting casual employment is relevant to characterising the arrangement as “casual”. This is important because it removes a key consideration of the Court in Rossato when it rejected the notion that Mr Rossato was a casual employee.

Common sense prevails on regular hours

The Bill makes clear that regularity in work scheduling is only one factor to be considered. It is not determinative on its own.

Legislative set off puts an end to double dipping

Finally, and if despite all best efforts, a casual employee is found by a Court to not be a true casual, then there is scope under the Bill to allow casual loadings to be legislatively set off against certain entitlements which would otherwise be owed to a permanent employee performing the same work. This ensures that payments of casual loadings are not merely “windfalls” to wrongly characterised employees.

Casual conversion becomes a statutory entitlement

Aside from these clarifying provisions, the Bill installs rules around employer offers to casual employees to be offered permanent part-time or full time employment and provides for residual rights for employees to request to convert to being permanent employees. These amendments, at a practical level, give legislative force to the existing regime of casual conversion set out in Modern Awards. The only difference is that the right to conversion will now be a national employment standard (and is enforceable as such) as opposed to being a right provided by way of legislative instrument.

When all is said and done a key reform has been delivered by the Omnibus with all the other reforms left waiting, maybe forever, at the bus stop.

Michael Stutley
Partner
+61 8 6381 7060
michael.stutley@kingstonreid.com

James Parkinson
Senior Associate
+61 8 6381 7053
james.parkinson@kingstonreid.com

March 3, 2021

On 17 February, Tim Pallas, Victoria’s minister for industrial relations, introduced the Industrial Relations Legislation Amendment Bill 2021.

Pallas says that the Bill will “have no adverse effect on the rights of employers, worker or the community as a whole” but a number of the amendments will enhance individual rights.

The Bill proposes amendments to a number of Victorian Acts, including the:

• Equal Opportunity Act 2010
• Inquiries Act 2014
• Labour Hire Licensing Act 2018, and
• Long Service Leave Act 2018

Some of the proposed amendments seek to implement recommendations made by the Victorian Inquiry into Labour Hire and Insecure Work. That inquiry was set up in 2015 to investigate the practices of labour hire companies, insecure work, sham contracting, and the abuse of visas to avoid workplace laws.

Some of the key recommendations contained in the final report of the Inquiry were to:

• set up a licensing scheme to regulate labour hire operators
• develop a voluntary code of conduct for the labour hire industry
• advocate for a national licensing scheme for labour hire operators, and
• use Government procurement to promote secure work practices and ethical employment.

There has been, and it appears that there will continue to be, an increasing focus on improving the rights and entitlements of contract and gig workers.

In recent times, on-demand workers have been in the limelight regarding whether they should secure “employee status”. A UK Supreme Court ruled that on-demand drivers working for Uber in 2016 were employees which has sparked talks that the decision may impact the Australian courts views on whether on-demand drivers are employees.

Whilst workplace laws are primarily made at a Federal level, the Bill introduced in Victoria shows that the Victorian government is pushing for reform at the state level.

The effect of the proposed amendments

The effect of the amendments will be to give contract workers a suite of additional rights and entitlements under Victorian industrial relations legislation, including:

1. Protection from discrimination on the basis of employment activity (for example, contract workers making a reasonable request for information regarding their employment entitlements) under the Equal Opportunity Act 2010. This means that contract workers will be afforded the same protection as directly engaged workers.
2. Principals being required to make reasonable adjustments to the workplace for a contract worker with a disability under the Equal Opportunity Act 2010. This will extend the entitlement which already applies to directly engaged workers.
3. Protection against detrimental action (including dismissal) under the Inquiries Act 2014 if the contract worker gives information to a Royal Commission, Board of Inquiry or a Formal Review.

A contract worker is defined in the Equal Opportunity Act as a person who does work for a principal under a contract between the worker’s employer and the principal.

For the purposes of the Inquiries Act, a contract worker is a person who does work for the business or other undertaking under a contract between the worker’s employer and the person who conducts the business or other undertaking, or, a person who does work for the business or other undertaking for fee or reward on the person’s own account (other than a person who conducts the business or other undertaking).

The Bill also proposes a number of other changes, including:

• A tiered system in the Labour Hire Licensing Act 2018 for businesses applying for a labour hire licence for the purposes of determining the applicable licence fee. This means that businesses, at the time of making an application, will be required to provide details of the estimated turnover of the business for the 4 quarters immediately before the date of the application.
• Giving the Labour Hire Licensing Authority the power, in special circumstances, to waive and refund fees (in whole or in part).
• Repealing the provisions in the Long Service Leave Act 2018 which deal with the offence of an employer not keeping long service leave records in the approved form.
• Clarifying that the offence relating to non-payment of long service entitlements is a continuing offence.
• Extending the prohibition from using common law contracts to annul, vary or exclude provisions of the Long Service Leave Act 2018 to deeds of settlement.
• Transferring various powers previously exercised by the Secretary to the Wage Inspectorate Victoria which will be established as a statutory authority under the Wage Theft Act 2020 from 1 July 2021.

The transfer of powers to the Wage Inspectorate demonstrates a shift in attitude around enforcement. The body will enforce Victorian laws dealing with child employment, long service leave and independent contractors in the transport and forestry sectors.

Businesses should expect to see a more proactive approach taken by the Wage Inspectorate which has been specifically established to investigate and enforce non-compliance with laws, as compared to the approach previously taken by the Department.

We expect the proposed legislative amendments to pass, and if so, will be due to commence on 1 July 2021.

Katie Sweatman
Partner
+61 3 9958 9605
katie.sweatman@kingstonreid.com

Sevasti Xanthos
Lawyer
+61 3 9958 9609
sevasti.xanthos@kingstonreid.com

February 22, 2021

On 22 January 2021, Kingston Reid published an update which examined whether employers could require staff to receive COVID-19 vaccinations. In that update, we explored the important link between work, health and safety obligations and limiting the risk of a COVID-19 infection in the workplace.

Late last week, the Federal Government, through the Fair Work Ombudsman (FWO) and Safe Work Australia (SWA), released its much anticipated updated guidance addressing this issue.

In summary, the guidance released by the FWO states that:

• In the current circumstances, the overwhelming majority of employers should assume that they won’t be able to require their employees to be vaccinated against COVID-19;
• Employers can direct their employees to be vaccinated if the direction is lawful and reasonable;
• Whether a direction is lawful and reasonable has to be assessed on a case by case basis (refer to our discussion of this in our 22 January Insight);
• On its own, the pandemic doesn’t automatically make it reasonable for an employer to direct its employees to be vaccinated against COVID-19. Some circumstances in which a direction may be more likely to be reasonable include where employees:
  • interact with people with an elevated risk of being infected with COVID-19 (for example, employees working in hotel quarantine or border control); or
  • have close contact with people who are most vulnerable to the health impacts of coronavirus infection (for example, employees working in health care or aged care);
• Assuming there is no public health order preventing an employee’s attendance at the workplace, it is unlikely that an employee could refuse to attend the workplace where a co-worker is not vaccinated against coronavirus, because (a) vaccination is not mandatory and most workplaces won’t be able to require their employees to be vaccinated, and (b) the co-worker may have a legitimate reason not to be vaccinated.

The key points contained in the SWA guidance are that:

• Most employers will not need to make vaccination mandatory to comply with the model work health and safety laws;
• It is unlikely that a requirement for workers to be vaccinated will be reasonably practicable. This is because, for example:
  • at present, public health experts, such as the Australian Health Protection Principal Committee has not recommended a vaccine be made mandatory in any industries;
  • there may not yet be a vaccine available for your workers;
  • your workplace is ‘low risk’, for example, your business is in a town with no community transmission or no customer facing roles; or
  • some of your workers have medical reasons why they cannot be vaccinated.
• Some factors that employers should consider on an ongoing basis include:
  • Is the Australian Health Protection Principal Committee recommending COVID-19 vaccinations for all workers in your industry?
  • Will your workers be exposed to the risk of infection as part of their work? For example, hotel quarantine workers will be at higher risk of exposure when their work duties place them in contact with people who may be infected with COVID-19;
  • Do your workers work with people who would be vulnerable to severe disease if they contract COVID-19?
  • What is the likelihood that COVID-19 could spread in the workplace? For example, some work tasks may require your workers to work in close proximity to each other;
  • Do your workers interact with large numbers of other people in the course of their work that could contribute to a ‘super-spreading’ event if your workers contract COVID-19?
  • What other control measures are available and in place in your workplace? Do those control measures already minimise the risk of infection, so far as is reasonably practicable?
  • Would a requirement to be vaccinated be unlawful in the circumstances?
• At this stage it is too early to tell if the COVID-19 vaccines will stop a vaccinated person from being infected with COVID-19. This means that a vaccinated person may unknowingly carry and spread the virus to others around them, including workers and others in their workplace. For this reason, employers must continue to apply all reasonably practicable control measures.

However, somewhat curiously, the guidance also states that in most circumstances, an employer may be able to require a prospective employee to be vaccinated against COVID-19. Whilst contractually, a requirement that a prospective employee be vaccinated can be a legitimate term of employment, such a requirement can still enliven discrimination claims if the prospective employee refuses and is subsequently not offered employment.

What does this mean?

The guidance indicates that, from a policy perspective, the circumstances in which an employer can mandate COVID-19 vaccinations are narrower than many had thought would be the case and narrower than the circumstances identified by the Fair Work Commission in the recent decisions of Arnold v Goodstart Early Learning and Glover v Ozcare (both of which are discussed in our 22 January Insight).

The overarching implication from the guidance is that there will be sufficient incentive – outside of work – for citizens to get vaccinated which, as a matter of practicality, renders it unnecessary for employers to mandate vaccination. In keeping with the NSW Premier, Gladys Berejiklian’s statement last week, employers operating in industries considered low risk, could still consider offering incentives to employees to get vaccinated – how and what those incentives may be, will be a matter for discussion amongst management, noting again, the need to avoid an inadvertent indirect discrimination risk. Further more, the basis for which an employer can require an employee to confirm whether they have been vaccinated will need to be carefully linked to the relevancy of the employment and managed sensitively, in accordance with your organisation’s Privacy and WHS Policies.

Importantly, for now at least,  the guidance:

• does not alter the process that an employer must go through in working out whether to mandate COVID-19 vaccinations for part or all of its workforce. As discussed in our 22 January update, the employer must determine whether directing its workers to be vaccinated constitutes a lawful and reasonable in the particular circumstances. The factors outlined in the Government’s updated guidance will be relevant to that assessment, but not determinative of it; and
• will provide support to an employer dealing with an employee who resists returning to the workplace because one or more of their colleagues have not been vaccinated.

These developments further underscore the importance of obtaining legal advice to help you assess whether directing any of your employees to receive a COVID-19 vaccination is lawful and reasonable in the circumstances, and whether you should make offers of new employment conditional upon the person being vaccinated.

For businesses who may not be able to make vaccinations mandatory, it will be necessary to identify other reasonable practicable measures that you could adopt in order to increase the prospect of employees getting vaccinated, such as (for example) promoting vaccination to workers or allowing employees to get vaccinated during their normal working hours. Taking such steps, alongside retaining existing COVID-19 safe measures, will certainly help employers demonstrate compliance with their statutory safety duties.

Christa Lenard
Partner
+61 2 9169 8404
christa.lenard@kingstonreid.com

Dominic Fleeton
Partner
+61 3 9958 9616
dominic.fleeton@kingstonreid.com

February 12, 2021

In a speech on 10 February 2021, Anthony Albanese MP revealed the Australian Labor Party’s (ALP) latest federal industrial relations policy, dubbed the “Secure Australian Jobs Plan”.

The policy centres around the core concept of “job security”, representing a significant change of tack from the Federal Opposition’s previous “Change the Rules” policy under Bill Shorten which was rejected at the last Federal Election.

In part the “Secure Australian Jobs Plan” provides the ALP’s response to the Coalition Government’s industrial relations omnibus amendment bill, which was introduced to the Commonwealth Parliament late last year. It seeks to cast the Coalition Government reforms as undermining job security but also proposes tighter regulation to entrench permanent employment and generic terms and conditions of employment as the dominant model of workplace engagement in the Australian economy.

A breakdown of the 8 elements of the ALP’s “Secure Australian Jobs Plan” is set out below.

1.     Inserting “job security” into the FW Act

The ALP proposes to legislate the concept of “job security” as a key objective of the Fair Work Act 2009 (Cth) (FW Act). The stated intention of this is that the Fair Work Commission (FW Commission) would be required to explicitly consider “job security” in its decisions.

No further details are offered as to what the definition of “job security” will entail or how much it will clash with management prerogative.

2.     Rights for gig economy workers

The ALP considers that the definition of “employee” is narrow and outdated resulting in workers in the “gig” and “demand” economies being excluded from employment protections.

Mr Albanese identified that these workers are denied award benefits, superannuation, the right to collectively bargain and unfair dismissal protections and are often required to accept below minimum wage rates to perform insecure piece work.

To remedy this, the ALP proposes to pass legislation to ensure more Australian workers have access to employment protections and entitlements.

This legislation would:

• extend the powers of the FW Commission to extend to “employee-like forms of work”; and
• allow the FW Commission to make orders for minimum standards in new forms of work.

3.     Portable entitlements for workers

According to Mr Albanese, the COVID-19 pandemic illustrated the need for casual, contractor and gig workers to access paid personal/carer’s leave.

States such as Victoria and Queensland have recently taken steps to provide paid sick leave entitlements to those workers and establish portable long service leave schemes.

However, the ALP’s proposal is to implement a national approach to portable entitlements for annual leave, sick leave and long service leave for workers in “insecure work”. This would be developed in consultation with state and territory governments.

No further details are provided on how this policy would work in practice but it would likely result in a system where employers contribute to a third party fund which distributes leave entitlements to eligible employees. For many employers this will increase the compliance burden as their leave arrangements operate across two systems.

4.     Casual workers

The ALP claims that 1 in 4 workers are engaged as casual employees and in certain industries, such as hospitality, 80% of the 800,000 person workforce are casual.

To remedy the purported issues of “insecure work” in such industries, the ALP proposes to legislate a test to determine when a worker can be classified as a casual.

However, no details are provided as to the actual content of this test, save for Mr Albanese’s assertion that: “Flexibility must come with security, not at the expense of it. Flexibility must benefit workers as well as employers.”

The ALP does not appear to propose adopting the definition of casual employment from the WorkPac Pty Ltd v Rossato [2020] FCAFC 84 decision. However, the ALP also does not appear to disagree with the approach taken by the Full Court of the Federal Court of Australia in that decision.

5.     Regulating labour hire

It is proposed that labour hire providers should be regulated to uphold the principle of “same job, same pay”. The ALP proposes to enshrine this principle in legislation. This will likely have a significant impact on the future viability of the labour hire industry and employees who work in it.

6.     Limiting consecutive short-term contracts

The ALP would limit the number of consecutive fixed term contracts an employer can offer for the same role to no more than 2 consecutive contracts or for 24 months, whichever comes first.

Once that limit is reached, the employer would be required to offer a permanent position for that role.

This is an interesting reform as genuine fixed term employment contracts are relatively scare in modern workplaces and recent FW Commission decisions have significantly reduced employer reliance on maximum term contracts.

7.     Providing for more secure work in the public sector

The ALP would conduct an audit of employment within the Australian Public Service with a view to promoting more secure employment where temporary forms of work, such as outsourcing, short term contracts or “offshoring” are being used inappropriately.

8.     Prioritising Government contracts for organisations that offer secure work

The ALP would ensure that the Commonwealth Government prioritises bids and tenders from companies and organisations that provide secure work for employees when purchasing or seeking goods and services.

Other ALP policy proposals

Mr Albanese also noted 2 additional ALP policies which did not appear to fit within the 8 elements of the “Secure Australian Jobs Plan”. These include:

• Making the FW Commission the primary body in Australia’s IR system by abolishing the Registered Organisations and the Australian Building and Construction Commissions; and
• Ensure the superannuation guarantee increases from 9.5% to 12% as legislated.

Conclusion

While the stated aims of the ALP’s industrial relations policy clearly target emerging or existing issues in Australia’s industrial relations framework, the speech offers little in the way of detail.

No definitions have been proposed for the key concepts of “job security”, “casual employment” and “employee-like forms of work” under Labor’s plan, nor has the ALP set out how the FW Commission’s powers would be expanded to fulfill the policy objectives.

Depending on how these details are developed, they are likely to limit options for types of workplace engagement that are not traditional permanent employment underpinned by generic terms and conditions. The devil will be in the detail which is yet to be released.

Duncan Fletcher
Partner
+61 8 6381 7050
duncan.fletcher@kingstonreid.com

Oliver Marshall
Lawyer
+61 8 6381 7056
oliver.marshall@kingstonreid.com

January 22, 2021

A Contentious COVID-19 Vaccine

Almost a year after Australia’s first confirmed case of COVID-19, the nation is well on its way to delivering a vaccine for the novel disease, with approval for the Pfizer vaccine drawing closer, following recommendations from the independent Advisory Committee on Vaccines. With the first doses likely to be rolled out by March 2021, IR Minister Christian Porter will shortly commence discussions with employers and unions about the difficult legal and workplace safety issues surrounding the roll out.

The question front and centre for many is: can and should my business make COVID-19 vaccinations mandatory for all staff (and potentially clients/customers)?

Unfortunately, there’s no clear answer… yet.

Employers currently have the power to direct employees to obtain specific vaccinations, for instance, the influenza vaccine, when the employees operate in “high risk” environments like health, child or aged care. Though, as a result of the pandemic’s latest developments, employers in a broad range of industries now face a great deal of uncertainty when it comes to giving health-related directions in the workplace.

Is a Direction to Vaccinate “Lawful and Reasonable”

Whether an employer chooses to mandate a COVID-19 vaccination for their employees will continue to depend on the unique circumstances of the case, and whether the direction can be deemed “lawful and reasonable”. A vaccination is a physically invasive procedure and hence, a direction for employees to receive the injection must be justifiable, with supporting evidence to show that the vaccination is inherent for the safe performance of an employee’s duties.

Given COVID-19’s high risk of infection and potentially dire outcome, it is likely that a wide range of industry employers will be successful in mandating the vaccine, claiming it as a necessary measure to minimise the risk of transmission in the workplace, consistent with WHS obligations under relevant Work, Health and Safety laws.

This will, however, be subject to genuine medical exemptions, where in such cases, reasonable alternatives may be provided to employees, where possible. As for political, religious or other objections, employers will need to consider the nature of the objection, whether there are any consequences in relation to discrimination laws, and navigate around these. At the end of the day, where there is a genuine work, health and safety reason for the direction, employers will be on strong ground to enforce such directions absent a legitimate basis for refusal.

The Fair Work Commission recently considered mandating vaccinations in Ms Nicole Maree Arnold v Good­start Ear­ly Learn­ing Lim­it­ed T/A Good­start Ear­ly Learn­ing [2020] FWC 6083 . Despite Deputy President Asbury ruling the application as being “out of time”, the Commission offered insight into the way other cases may be determined, commenting at paragraph [30] on the avenues made available by the Respondent for employees who had valid medical grounds for refusing vaccination. The Commission also highlighted the Respondent’s duty of care, observing at paragraph [32] that the mandatory vaccination is “lawful and reasonable” in the context of child-care.

Top Tip: If employees have legitimate, medical grounds to refuse vaccination directions, employers may, where possible, offer reasonable alternatives for workers falling within this category.

Just last week, the Commission touched on the same issue, considering the possibility of a mandated COVID-19 vaccine in Ms Maria Corazon Glover v Ozcare [2021] FWC 231. In paragraph [126], Commissioner Hunt emphasised the importance of an employee’s specific role in determining whether a mandated vaccine is a lawful and reasonable direction. Commissioner Hunt also made clear that despite grounds for refusal being “medical or based on religious grounds” or otherwise, an employee may still face termination should the vaccination be regarded as an “inherent requirement of the role”.

And while it may be difficult to picture, it is entirely possible that employers far beyond the scope of health, child or aged care may require their workers to be vaccinated against COVID-19, given the much more severe health and safety consequences associated with the disease. Commissioner Hunt, in her decision went so far as to consider it foreseeably reasonable that a shopping centre Santa employee be immunised as an inherent requirement of the job.

While it is likely that the courts will be tasked with ironing out the kinks in employer decisions as to lawful and reasonable vaccination directions, there are steps that can be taken in the meantime to prepare for the vaccine rollout in March.

Deciding Whether to Implement Directions

Employers who are deciding whether or not a vaccination mandate should be imposed should consider:

• The type of work being performed;
• Whether that work can be performed remotely;
• The specific situation of employees;
• The advice given by government and medical bodies applicable at the time; and
• Any other relevant circumstances.

Mandating the Vaccine

When implementing a COVID-19 vaccine mandate, employers must place particular emphasis on:

• Maintaining communications – employees must be made aware of why they are required to get the vaccine and alternatives may need to be given to those who have legitimate grounds to refuse or who are unable to comply. Employees must have the chance to ask questions and have their concerns heard. As this is first and foremost a safety issue, consultation is key.
• Clear processes – if an employee conscientiously objects or is unable to comply with the directions, there should be procedures in place to determine available avenues moving forward.
• Flexibility – employees should be given a choice with regard to vaccine suppliers and administrators and a number of opportunities to receive the vaccination.
• Anticipating attitudes – employers must consider all potential circumstances and responses from their employees.
• Transparency – employers should lead by example and provide explanations for why the vaccination is required to uphold WHS obligations.

Christa Lenard
Partner
+61 2 9169 8404
christa.lenard@kingstonreid.com

Natasha Elster
Paralegal

January 13, 2021

In December 2020, the Federal Court of Australia handed down, Alexiou v Australia and New Zealand Banking Group Limited [2020] FCA 1777, which was the first decision to consider the whistleblower provisions under Part 9.4AAA of the Corporations Act 2001 (Cth) (Corps Act).

Part 9.4AAA of the Corps Act came into operation on 1 July 2019[1] and introduced greater protections for whistleblowers and broadened the ambit of the national whistleblower regime.

The ‘new’ whistleblower laws expanded the:

• whistleblower definition;
• private sector coverage;
• definition of what constitutes a protected disclosure;
• protections available to eligible whistleblowers; and
• penalty provisions for breaches.

What did this case consider?

The Federal Court was required to determine whether detrimental conduct that occurred prior to the amendments commencing on 1 July 2019, could be subject to the civil penalty provisions of ss 1317AD and 1317AE of the Corps Act. These provisions entitle a person who has made a protected disclosure to seek a civil remedy when ‘detrimental conduct’ has occurred.

The Applicant, Mr Alexiou, relied on s 1644(2) of the Corps Act which states that Part 9.4AAA applies to a disclosure that:

• was made before the commencement time; and
• would have been a disclosure protected by Part 9.4AAA, if the amendments made had been in force at the time the disclosure was made.

The ‘detrimental conduct’ occurred on 1 September 2015 when the Applicant’s employment was terminated. The Applicant asserted that the whistleblower disclosures he made during his employment (all prior to 1 July 2019), could be considered for the purposes of ss 1317AD and 1317AE, allowing him to pursue the whistleblower civil remedies in relation to the termination of his employment.

What did the Court decide?

The Federal Court stated that if the pre-conditions in s 1644(2)(a) and (b) are met then the disclosure is protected by Part 9.4AAA. Once enlivened, it simply means that the civil remedy provisions in ss 1317AD and 1317AE apply ‘to and from’ 1 July 2019 to those protected disclosures. However, there are no provisions in the Corps Act which apply the civil penalty provisions to ‘detrimental conduct’ that occurred prior to 1 July 2019.

The Federal Court found that because the Applicant’s dismissal took place in 2015, the civil penalty provisions could not apply because the detrimental conduct took place before 1 July 2019. This was so, even though the disclosures made prior to 1 July 2019 were protected by Part 9.4AAA.

Key takeaways

So, which came first, the chicken or the egg?

In a nutshell (or eggshell as it were), if a disclosure is made prior to 1 July 2019 that qualifies as a protected disclosure, a civil remedy can only be sought by the person if they suffered the detrimental conduct, the result of that protected disclosure, on or after 1 July 2019.

The key takeaways from this decision are:

• if the person suffered the detrimental conduct prior to 1 July 2019, then regardless of whether they made protected disclosures pre or post-1 July 2019, they cannot seek a civil remedy for those protected disclosures;
• if the person suffered the detrimental conduct on or after 1 July 2019, and if the disclosures are protected, whether made pre or post-1 July 2019, then the person can seek a civil remedy for those protected disclosures.

The decision dealt with a discrete question and did not consider the application of the whistleblower provisions more broadly. There are currently cases before the Federal Courts and therefore, the enigma that is the national whistleblower regime, will continue to develop in 2021.

Alice DeBoos
Managing Partner
+61 2 9169 8444
alice.deboos@kingstonreid.com

Shelley Williams
Senior Associate
+61 9169 8412
shelley.williams@kingstonreid.com

[1] Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth).

December 9, 2020

Today, the Morrison Government has introduced the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 into the House of Representatives.

Attorney-General and Minister for Industrial Relations, Christian Porter, has been meeting with working groups comprising business and union groups since June 2020 to tackle known problems within the industrial relations system in the broader context of the Covid-19 pandemic.

Although the discussions of the working groups were confidential, and no public consensus was reached, the Bill has been presented as the Government’s considered response to what the stakeholders had to say.

Importantly, what is presented is not a laundry list of employer or union demands, which has characterised most industrial relations reform over the last 20 years.

Instead these are changes that are aimed at providing comfort to employees but also certainty to employers that the Fair Work Act can be used to encourage, rather than undermine job creation in the post-recession environment.

The changes correlate in many respects with the subject areas dealt with by the working groups. We have prepared Fact Sheets for each area which can be accessed here:

• Casual Employees
• Compliance & Enforcement
• Greenfields Agreements
• Enterprise Agreements
• Award Flexibilities

Some of the changes were expected:

• Harsher penalties for wage theft and underpayments.
• A broad right for regular and systematic casual employees to convert to permanent employment balanced against a mechanism to stop double dipping on entitlements.
• Extended nominal terms for greenfield agreements on major projects to give certainty of employment conditions and prevent strike action mid-project.
• The introduction of “Flex up” provisions in certain Awards to allow part time employees to volunteer to work extra hours without creating an overtime burden on their employer.
• An improved Better Off Overall Test for enterprise agreements with a focus on the actual circumstances in the workplace and a relaxing of technical procedural requirements that have clogged enterprise agreement approvals.
• A redefining of the “genuine agreement” requirement by reference to an overall discretionary test of an “informed decision”.

Some of the changes were not expected:

• Extension of Covid-19 flexibility provisions in Awards for a further two years.
• A 21 day time limit on the Fair Work Commission to approve enterprise agreements unless there are “exceptional circumstances”.
• A much tougher test for non-parties and bargaining representatives to intervene to prevent enterprise agreement approval.
• A sunset deadline which will terminate all pre-2009 (so called zombie) enterprise agreements by 1 July 2022.
• Express legislative confirmation that there will not be an enterprise agreement transfer of business between related entities if employment with the new entity is “at the initiative of the employee”.
• A three month cooling off period after nominal expiry before an application to terminate the agreement can be made.
• Permitting a new franchise employer to opt in to an existing enterprise agreement with a vote of only that new franchisee’s employees.

There were also some missed opportunities:

• Preventing strike action while an employee is employed on an individual flexibility agreement.
• More detailed streamlining of Awards to encourage the use of standard terms across the Award system.
• Permitting provisions in Awards exempting employees above certain classifications from the application of nominated Award provisions.
• A shortened timeframe for a circuit breaker greenfield agreement to be made where a union refuses to reach agreement.

Overall the package looks to be a methodical response to the issues facing employees and employers in a post Covid-19 recovery. It remains to be seen what actually becomes law, when passed.

Irrespective, it will present risks and opportunities to employers.

Now is the time to revisit the issues that your workplace faces in each of the areas that have been covered and be ready to consider how your strategy might change once the legislation is finalised.

Duncan Fletcher
Partner
+61 8 6381 7050
duncan.fletcher@kingstonreid.com

Christa Lenard
Partner
+61 2 9169 8404
christa.lenard@kingstonreid.com

Steven Amendola
Partner
+61 3 9958 9606
steven.amendola@kingstonreid.com

December 4, 2020

In an important development for expecting parents and their employers, Parliament has passed legislation extending unpaid parental leave entitlements to parents of stillborn children or those who die during the first 24 months of life. The changes provide parents who would otherwise have been entitled to unpaid parental leave, with the same amount of parental leave in the event of a stillbirth. Changes to the requirements for how and when parental leave can be taken, and to the interaction between the NES and the government-funded Paid Parental Leave (PPL) scheme have also come into effect. Here’s what you need to know.

Leave entitlements for parents of a stillborn child or child who dies during their first 24 months

The legislative changes replace the previous s 77A of the Fair Work Act 2009 (Cth) (FW Act) that allowed an employer to cancel planned parental leave in the event of a stillbirth and direct the employee back to work with 6 weeks’ notice. The new s 77A provides those employees with an entitlement to 12 months’ unpaid parental leave and extinguishes the right for the employer to cancel that leave. The employee can still cancel planned parental leave and can return to the workplace with at least 4 weeks’ notice to the employer. The FW Act now defines a stillborn child as one whose gestation period was at least 20 weeks or who weighs at least 400 grams at delivery.

The relevant evidence requirements have also been amended to ensure that employers can require evidence that would satisfy a reasonable person that the new provisions regarding stillbirth or death of a child apply in the case of the relevant employee.

Employees on unpaid parental leave were also previously unable to access compassionate leave. They are now eligible to access 2 days paid compassionate leave in the event of a stillbirth of a child.

Permitted breaks in unpaid parental leave

As a general rule, employees are required to take unpaid parental leave in one block and not return to the workplace, apart from for the purpose of keeping in touch days, until they intend to do so permanently. In practice, this means that once an employee goes on parental leave, if their baby is born prematurely or requires hospitalisation, they can’t return to work even for a short period and then recommence unpaid parental leave once their baby is discharged. Whilst some employees in this situation may choose not to return to work during the period of hospitalisation, the result may be less time at home with their child after they are discharged.

The changes to the FW Act now provide for a new exception to that rule. The new s 78A provides that where a child is required to remain in hospital or is hospitalised immediately after birth, an employee who has given notice of taking unpaid parental leave, will have the option to return to the workplace while the child remains in hospital without breaking the continuity of their parental leave. This is to be known as a permitted work period. The end date of the unpaid parental leave can then be extended by the duration of the permitted work period.

Only one permitted work period will be allowed during unpaid parental leave, and the employer can require medical evidence of both the circumstances giving rise to the applicability of the section and of the employee’s fitness for work during the permitted work period.

The NES and PPL scheme

Finally, recent changes to the Paid Parental Leave Act 2010 (Cth) on 1 July 2020 mean that employees receiving the 18 weeks’ paid parental leave under that scheme can how take 12 weeks’ paid leave in one block and the remaining 6 weeks’ at any time within 24 months of the birth or adoption of the child. This could also be at a time after the employee returns to work. Whilst this flexibility has been introduced in respect of the PPL scheme, it has not previously been reflected in the unpaid entitlement under the NES. This meant that where an employee wished to access the PPL scheme after the first 12 months of unpaid leave, they were required to negotiate this time off with their employer, because the NES previously required that once an employee returns to work they would forfeit the remaining unpaid leave entitlement.

A new s 72A in the NES now mirrors the flexibility in the PPL scheme allowing employees to take up to 6 weeks of their unpaid parental leave at any time in the first 24 months after the birth of the child, even after a return to work. The period of unpaid leave being taken ‘flexibly’ or separately from the initial block of leave, can be taken in separate periods as short as a single day at a time. Employees wishing to use part of their unpaid parental leave flexibly will need to advise their employer of this when giving notice of their intention to take unpaid parental leave, unless the employer agrees to receive the notice at a later date.

Tips for employers

Employers should consider whether their parental leave policies require any amendment to reflect the above changes. In particular, query if exceptions to the requirement to take parental leave in a single block should be set out in your policy.

If you are in any doubt as to how these changes may affect your business, contact us at Kingston Reid to discuss.

Katie Sweatman
Partner
+61 3 9958 9605
katie.sweatman@kingstonreid.com

Bronte Richardson
Lawyer
+61 2 9169 8418
bronte.richardson@kingstonreid.com