Insights & News

May 19, 2021

What has happened?

The Federal Minister for Industrial Relations has issued the first exclusion sanction under the Code for the Tendering and Performance of Building Work 2016 (the Code) for a failure to comply with safety obligations.

MCP (Aus) Pty Ltd (MCP) has been banned from tendering for, or being awarded, Commonwealth funded building work for a period of 1 month.

Background

The 2016 Code requires every Code covered entity to comply with work health and safety laws to the extent that they apply to the entity in relation to building work.

A breach of that obligation is a breach of the Code.

Where a breach of the Code occurs, the Code covered entity must notify the ABCC of the breach, and the steps proposed to be taken to rectify the breach, no later than 2 working days after becoming aware of it. The entity then has a further 14 days to notify the ABCC of the steps taken to rectify the breach.

The ABC Commissioner must then decide whether to refer the breach to the Minister with recommendations as to whether a sanction should be imposed.

If a breach referred to the Minister results from a failure to comply with work health and safety laws, the Minister must impose an exclusion sanction on the Code covered entity unless the Minister is satisfied that it would not be appropriate in the circumstances because of the nature of, or factors contributing to, the failure to comply.

The maximum exclusion period that can be imposed under the Code is 12 months.

In the past, exclusion sanctions have been imposed on entities for breaches of industrial relations requirements of the 2016 Code (and its predecessors), such as the prohibition on displaying ‘no ticket, no start’ signs on worksites. However, until now, no exclusion sanction has been issued for a breach of work health and safety requirements.

 Exclusion sanction imposed on MCP

The Minister has excluded MCP from tendering for, and being awarded, Commonwealth funded building work for 1 month.

MCP breached the Code as a result of it having contravened the Work Health and Safety Act 2011 (Qld) (WHS Act) in relation to an incident on the Toowoomba Second Range Crossing road project in which a 60 metre boom on a concrete pump toppled over. No one was injured in the incident.

As a result of that incident, MCP was charged with an offence against section 32 of the WHS Act for breaching its primary duty of care under section 19 of the WHS Act. It pleaded guilty and was fined $50,000 and ordered to pay $1,600 in costs.  No conviction was recorded.

Consistent with an alert issued by the ABCC in 2018, in which the ABCC warned the building industry that it monitors court outcomes for proven contraventions of safety laws, the ABC Commissioner referred MCP’s admitted contraventions of the WHS Act to the Minister.

In its press release, the ABCC noted that: “MCP made full admissions before the Court, and fully cooperated with the ABCC, took positive steps to remediate its conduct and satisfy the regulator that it had provided a measure of voluntary rectification.”

Despite that, and the fact that no one was injured in the incident, the Minister did not view the imposition of an exclusion sanction as being inappropriate.

What does this mean?

Clients involved in construction works should be aware of the potential commercial implications and reputational damage that may result from any breach of statutory and contractual safety obligations.

The exclusion sanction imposed on MCP highlights:

• the potential commercial and reputational implications for Code covered entities who fall foul of work health and safety laws; and
• that voluntary rectification of the issues which give rise to breaches of work health and safety laws, and active co-operation with the ABCC, may not be sufficient to prevent an exclusion sanction being imposed.

It also serves as a reminder to all Code covered entities that any guilty plea, or finding of guilt made by a court, in a safety prosecution will need to be reported to the ABCC within 2 working days.

If you are in any doubt as to your obligations under the Code, including whether an event needs to be notified to the ABCC, please ensure that you seek legal advice as a matter of urgency.

Dominic Fleeton
Partner
+ 61 3 9958 9616
[email protected]

Liam Fraser
Partner
+ 61 7 3071 3113
[email protected]

John Makris
Partner
+ 61 2 9169 8407
[email protected]

May 3, 2021

What has happened?

Much has been written about the issue of sexual harassment over the last few months and while it may seem obvious that harassment presents a safety risk, that is not the way it has been traditionally treated.

Broader community movements are fuelling momentum for change in the legal and regulatory landscape surrounding workplace sexual harassment, especially within the realm of work health and safety (WHS).

Whilst Australia’s safety laws have always required employers to identify and control physical and psychological health risks in the workplace, sexual harassment is now clearly recognised as a systemic risk with industry, environmental and individual risk factors present in all workplaces.

Safe Work Australia recently released its first comprehensive WHS guidance on preventing workplace sexual harassment. Whilst regulator guidance material does not have the same legal status as legislation, it does contribute to the overall state of knowledge regarding hazards, risks and controls and may be tendered as evidence in prosecutions against companies and individual officers and workers.

Background

Under current WHS (and OHS) laws, employers have a positive duty to take reasonably practicable steps to eliminate or minimise risks to their workers’ health, including risks associated with workplace sexual harassment.

However, the Australian Human Rights Commission’s report on the National Inquiry into Sexual Harassment in Australian Workplaces (the Report) found that a lack of express WHS regulation, Codes of Practice or guidelines dealing with sexual harassment as a specific WHS issue has resulted in difficulties arising for victims and employers. The Report, adding to the growing demand for addressing this inconsistency (see the recommendation made by the Boland Review in 2019), recommended, amongst other things, that guidelines on addressing the risk of sexual harassment in the workplace be developed with a view of informing the development of a Code of Practice.

Safe Work Australia’s Guideline

In January 2021 Safe Work Australia, acting on the Report’s recommendation, published national guidance material on preventing workplace sexual harassment (Guidance Material). The Guidance Material advocates for a more proactive role of employers in identifying, assessing and eliminating or minimising the risk of workplace sexual harassment occurring. Whilst all workplaces should review the entire Guideline Material, some of the key parts of it are below.

Identifying sexual harassment

The Guidance Material defines sexual harassment as any unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature, in circumstances in which a reasonable person, having regard to all the circumstances, would anticipate the possibility that the person harassed would be offended, humiliated, or intimidated. This adopts the current legal definition from the Sex Discrimination Act.

It provides a list of factors of which employers should be aware that increase the potential for sexual harassment to occur in their workplace.

Those factors include:

The Guidance Material also provides a list of proactive measures that may help employers identify whether sexual harassment is occurring in the workplace.

Some of those include:

Sexual harassment poses risks of both physical and psychological harm for workers. This means that control measures must be put in place to either eliminate or minimise the risk of it occurring, as far as it is reasonably practicable to do so. In the event of a complaint of sexual harassment to a safety regulator, employers should be prepared to be able to explain how they have, and are, proactively addressing the risk of sexual harassment in their workplace. Failing this, the employer will no doubt be the subject of statutory notice(s) (e.g. an improvement notice), and/or find itself the subject of a regulatory investigation and possible prosecution under either WHS or mainstream criminal laws.

The Guidance Material advocates a proactive approach to managing the risk of sexual harassment by:

These measures are in large part the same as the measures that should be adopted to manage exposure to risk under discrimination law. This means that if these measures are effectively implemented and managed employers will also be taking reasonable steps to comply with obligations under other laws.

Safe work systems and procedures

Every workplace should have health and safety management systems in place to keep workers safe. The Guidance Material suggests that policies and procedures should form part of your safety management system and be part of an overall sexual harassment preventative strategy. In particular, the system should:

What should employers be doing now?

All workplaces should be taking proactive steps to assess whether their safety management system is adequate to identify and address sexual harassment risks in the workplace. It is highly likely that these measures are addressed in workplace policies already, however not referenced as part of the safety management plan or systems.

This means employers should take steps to:

April 12, 2021

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

Last Thursday, 8 April 2021, 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
[email protected]

Kathleen Weston
Lawyer
+61 2 9169 8415
[email protected]

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
[email protected]

James Parkinson
Senior Associate
+61 8 6381 7053
[email protected]

March 11, 2021

Employers are deeply concerned – and confused – about COVID-19 vaccinations in their workplaces following the release of guidance material by the Fair Work Ombudsman (FWO) and Safe Work Australia (SWA).

The FWO said that in the current circumstances the “overwhelming majority” of employers should assume they won’t be able to require their employees to be vaccinated against COVID-19 from an employment law perspective. But it also said that employers can direct their employees to be vaccinated if the direction is lawful and reasonable.

SWA said that its guidance material will assist employers to assess whether a COVID -19 vaccine is a “reasonably practicable” control measure to manage the risks of COVID-19 in the workplace, but that most employers will not need to make vaccination mandatory to comply with the model WHS laws.

Could the messaging be more mixed and the position for employers less clear, especially as the guidance material from these Federal Government agencies is as interesting for what it does not address as much as what it does.

What about a whole range of vulnerabilities beyond aged care and health care such as RSLs, food production businesses, and workplaces with close living quarters such as mine sites and supermarkets?

These workplaces would seem to be good candidates for a mandatory COVID-19 vaccination policy. Instead, it seems that these agencies are only keen to give clear guidance to those workplaces in the most obvious of industries.”

Although vaccinations are just one of a number of COVID-safe measures (such as hand washing, masks, social distancing, QR codes, etc), it is not right to dismiss a key component in the fight against COVID-19 – vaccinations – that have been held out to be the missing link after more than a year of research and development and untold billions of dollars spent globally.

If we rely on the underlying assumption that workplaces mandating vaccinations is not necessary because there is sufficient out-of-work incentive to get vaccinated then we are set up to fail. How many would bother with the flu vaccination if our workplaces did not make them available?

SWA says there are no laws or public health orders in Australia that specifically enable employers to require their employees to be vaccinated against COVID-19. But what about the common law?

The battle will be played out in the space between what constitutes a reasonable direction and a reasonable refusal. Policy makers are not necessarily to blame. We all need to remember that the word ‘pandemic’ is not used lightly and that this is a once in a 100-year event.

Michael Stutley
Partner
+61 08 6381 7060
[email protected]

Steven Amendola
Partner
+61 3 9958 9606
[email protected]

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
[email protected]

Sevasti Xanthos
Lawyer
+61 3 9958 9609
[email protected]

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
[email protected]

Dominic Fleeton
Partner
+61 3 9958 9616
[email protected]

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
[email protected]

Oliver Marshall
Lawyer
+61 8 6381 7056
[email protected]

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
[email protected]

Natasha Elster
Paralegal