Employment lawyers share the things you need to be aware of in 2021
2021 is shaping up to be a huge year for employment law changes. Below are the 5 key areas all HR professionals should be aware of to keep up with employment law over the next 12 months.
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COVID-19 vaccines: Know what you can – and can’t - do
Following announcements regarding the national roll out of COVID-19 vaccines, many employers are wondering whether they can properly require their employees to be vaccinated before returning to the workplace. The issue for employers will centre upon whether any employer directed requirement to get the vaccine is a ‘reasonable and lawful directive’ (and this may well be guided, on a case by case basis, by reference to the inherent requirements of an employee’s role).
IR Minister Christian Porter has foreshadowed that State public health orders will largely govern workplace vaccination requirements and that employers can expect to see some sort of guidance or direction as more information about the vaccine roll out is announced. Whilst this doesn’t help forward planning employers, there is some precedent surrounding employers who require employees to get the flu shot.
For example, in Victoria, the Deputy Chief Health Officer has issued directions requiring any person attending a residential aged care facility to have an up-to-date vaccination against influenza and we may see similar directions issued with respect to the COVID-19 vaccine in similar sectors (which, in turn, gives employers in this sector a basis upon which to make it a condition of employment to obtain the flu shot - however this differs from state to state).
ACTION: Employers who are considering mandatory COVID-19 vaccinations should ‘watch this space’ as directions from the State and Federal Governments are likely to affect what employers can and can’t do with respect to the COVID-19 vaccine.
Once directions are issued, employers should obtain legal advice and consider implementing a vaccination policy which sets out a clear process for employee objections (inclusive of properly considering the reason for any objections and making exceptions in certain situations). In the meantime, a proper review of position descriptions (with the ‘inherent requirements’ consideration at front of mind) would be a worthwhile exercise.
2. Know your position after the end of JobKeeper
After the cessation of JobKeeper last month, it is likely that a significant number of redundancies will necessarily occur. This will invariably result in an overall greater number of unfair dismissal claims being made. Further, when JobKeeper Enabling Stand Down Directions ceased to have effect on 28 March 2021, full time and part time employees had an automatic right to return to their pre stand down hours unless the traditional stand down provisions of the Fair Work Act 2009 (Cth) (FW Act) can be relied upon. As a result, it is likely that employers will become engaged in disputes with employees around how, and for how much of their working time, employees return to their usual workplaces.
ACTION: Employers should ensure that any redundancies are implemented appropriately by reference to the FW Act, including by ensuring that the job to be made redundant is no longer required to be done by anyone, that consultation (where required by a modern award or enterprise agreement) occurs both in the verbal and written sense and that redeployment is suitably considered and addressed.
Where an employer wants an employee to continue working reduced hours after the cessation of Jobkeeper Enabling Stand Down Directions, the employee will need to (in most cases) agree to it. The applicable modern award or enterprise agreement may set out requirements for employers relating to changing hours of work (which, generally, require consent from the employee and some form of consultation).
Read more: Can casuals request to become permanent employees?
3. Get ready for changes to the Fair Work Act
Following the introduction of the Government’s IR omnibus legislation (the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill (Bill)) into Parliament on 9 December 2020, it is likely that there will be significant changes to the FW Act this year.
The proposed changes in the Bill include (but are not limited to) providing certainty to businesses and employees about casual employment (including adding a definition of what is a casual employee as well as a casual conversion entitlement in the National Employment Standards (NES) in the FW Act), streamlining and improving the enterprise agreement making and approval process, inserting new flexible work directions and strengthening the FW Act compliance and enforcement framework to address circumstances of wage underpayments.
ACTION: There will inevitably be changes to the Bill before it receives assent and becomes law. Until that occurs, the current workplace laws will continue to apply and employers must comply with them. In the meantime, employers should keep a watchful eye on the passage of the Bill through Parliament and any commentary that arises relating to any changes.
There are some actions that employers can take now in relation to the proposed casual employment changes in the Bill. We discuss those actions in more detail under item 4.
4. Review the casual workforce
Tidying up casual employment relationships will be a focus for many employers this year. To that end, employers (and particularly the labour hire industry) will be avidly awaiting the decision of the High Court in the Workpac v Rossato [2020] FCAFC 84 (Rossato) case, although just how avidly and for how long will hinge on whether the Bill (referred to in item 3 above) is enacted before the High Court’s decision is issued.
The Bill (referred to above in item 3) proposes to include a definition of a ‘casual employee’ in the FW Act, which would essentially alter the ramifications for employers of the decision made by the Full Bench of the Federal Court in Rossato (namely, that the employee was not a casual employee even though his contract of employment described him as such).
Per the proposed definition in the Bill, a person will be a casual employee if they accept an offer of employment that does not contain a firm advanced commitment to continuing and indefinite work according to an agreed pattern. This new proposed definition concentrates on the offer and acceptance of employment and takes a ‘once a casual, always a casual’ approach, such that whether the employee is subsequently treated in a way which is more akin to a permanent employee (albeit, without receiving leave and other entitlements), will be irrelevant.
The Bill also proposes, in relation to casual employment, to:
- Make changes to offsetting arrangements to reduce any amount payable to an employee where a Court finds the employee was not actually a casual employee.
- Amend the NES to include casual conversion provisions which, among other things, will prevent employers from converting casuals to fixed term contracts.
- Provide casual employees with the right to request conversion in certain circumstances.
- Prohibit employers from terminating, or otherwise varying, an employment relationship with the intention to circumvent any conversion obligations.
These changes will apply retrospectively – meaning that they will apply to existing employees as well as new employees.
ACTION: In view of the proposed new casual employment provisions in the Bill, employers should take the approach of ensuring that: all casuals are properly specified as casual employees in their contracts of employment; the loadings paid to casuals are properly specified and are easily identifiable amounts; and they start workforce planning now by evaluating their casual workforce and identifying any employees that may meet the criteria for conversion (noting that the relevant Award/Enterprise Agreement may already mandate casual conversion steps be taken).
Employers should also get ready to, as soon as possible after the enactment of the Bill, provide all casual employees (both new and existing) with the Fair Work Ombudsman’s (FWO) ‘Casual Employment Information Statement’.
Read more: Employers urged to rethink handling of sexual harassment allegations
5. Review working from home arrangements and risks
Due to the COVID-19 pandemic and the associated public health orders, subject to their industries and occupations, the majority of employees in Australia worked from home for a period of time in 2020. Many of those employees are still working predominantly from home – and a good majority of them like it that way. Many employers are content to have these, or some of these, working from home arrangements continue, particularly where they have seen no resulting decline in productivity, the ability to properly manage or in the state of the workplace culture. In recognition of this shift towards remote working, the Commission is currently considering whether a clause facilitating agreed working from home arrangements ought to be permanently included in the Clerks – Private Sector Award 2020.
Many employers, though, are keen to have all or most of their employees back in their traditional workplaces as soon as it is safe and otherwise appropriate (including by reference to government guidelines, particularly in Victoria) for that to be the case. Where what the employers want and what the employees would like are in conflict, this situation is likely to (if not already) present challenges for employers. In this regard, employers should note that their ability to give reasonable and lawful directives (including as to work hours and where the work is to take place) and to expect compliance with those directives, remains.
Provided that: it is safe for employees to return to work; government directions permit; and the employee’s usual employment conditions and any relevant personal circumstances are properly taken into account in the making of a directive, the employer will generally be entitled to return the workforce in the way it reasonably considers best. An increase in requests by employees for flexible working arrangements as well as for individual flexibility arrangements under applicable modern awards is likely.
Also in relation to working from home arrangements, given the swift implementation of the public health orders requiring employees to work from home where possible, it is to be expected that most employers did not have the opportunity to properly conduct risk and other assessments for each home working environment. Employers can be held liable for any incidents that occur whilst an employee is working from home. In order to comply with their obligations under work health and safety laws, employers are required to (among other things) and so far as is reasonably practicable:
- Provide and maintain a work environment that is without risks to health and safety.
- Monitor the health of workers and the conditions of the workplace for the purpose of preventing illness or injury.
With the ongoing nature of the pandemic, and the fact that many workers are likely to want to continue working from home moving forward, employers need to act now to ensure that they are discharging their positive duties owed to employees under applicable work health and safety laws.
ACTION: Employers should establish their positions on ongoing working from home arrangements as early as possible in the piece, and should ensure that a consistent approach to the issue is adopted and maintained. Employers should expect an increase in requests for flexible work arrangements as well as for individual flexibility arrangements under applicable awards. In this regard, employers should ensure that they properly understand each concept, their differences, the respective eligibility requirements and how to properly and lawfully contend with the requests.
Employers should conduct comprehensive risk assessments of home working environments to ensure safe workspace set-ups (including ergonomics of workstations) and identify (and manage/rectify) risks, such as trip or fall hazards. Often this type of risk assessment is conducted via a checklist which the employee is required to complete.
It is important for employers to be aware that the obligation to ensure that employees are safe extends to psychological safety. Employees working from home for long periods can feel isolated which may, in turn, increase the risk of employees experiencing, or exacerbating, mental health issues. To contend with this, employers should ensure that they put in place systems which ensure ongoing communication with workers, including those working remotely, whether that be by regular virtual meetings, emails and/or phone check-ins.
Whilst not specific to work health and safety risks, employers should also be cognisant of the increased cyber risks associated with employees working via their home internet and/or on devices that other persons in their household may be able to access. Rolling out training to ensure employees are aware of the increased risks may be one way to contend with this.
Michelle Dawson, Partner and Emily Dempster, Special Counsel, at Moray & Agnew.
