1.      Know what can, and can’t, be done in requiring employees to have COVID-19 vaccines

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.         Be prepared for the end of JobKeeper

With the cessation of JobKeeper on 28 March 2021, it is likely that a significant number of redundancies will necessarily occur.  This will invariably result in an overall greater number of unfair dismissal claims being made. Further, when JobKeeper Enabling Stand Down Directions cease to have effect on 28 March 2021, full time and part time employees will have an automatic right to return to their pre stand down hours unless the traditional stand down provisions of the Fair Work Act 2009 (Cth) (FW Act) can be relied upon. As a result, it is likely that employers will become engaged in disputes with employees around how, and for how much of their working time, employees return to their usual workplaces. For more about this topic, you can see our earlier article here.

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. Employers should consider commencing the consultation process prior to the end of JobKeeper (with 28 March 2021 as the specified termination date) to ensure adequate time, both to go through a properly meaningful consultation process and to give the appropriate period of notice of termination.

Where an employer wants an employee to continue working reduced hours after the cessation of Jobkeeper Enabling Stand Down Directions, the employee will need to (in most cases) agree to it. The applicable modern award or enterprise agreement may set out requirements for employers relating to changing hours of work (which, generally, require consent from the employee and some form of  consultation). Employers should start considering whether they will need to ask employees to continue working reduced hours post 28 March 2021 and, if so, familiarise themselves with the relevant provisions in the applicable modern award or enterprise agreement and commence a consultation process sooner rather than later.

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’.

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.

6.         Assess and ensure compliance with Awards / Enterprise Agreements and the Fair Work Act

In Victoria the Wage Theft Act 2020 (Vic) is expected to take effect from 1 July 2021.  This new law creates for Victorians various criminal offences in relation to employee entitlements and establishes a State-based Wage Inspectorate with wide investigative powers.  Among other things, directors and officers may be liable for offences, with potential imprisonment of up to 10 years and fines will be up to $198,264 for individuals and $991,320 for companies. This new law, combined with proposed underpayment measures to have Federal effect in the Bill and the FWO’s significant activity nationally in the underpayment space, makes it more important than ever, from a risk management perspective, for employers to ensure they are complying with their minimum modern award/enterprise agreement and/or FW Act obligations.

ACTION: Employers and (where applicable) their Directors, Human Resources staff and Managers should (at a minimum) be familiar with the applicable modern award/s and/or enterprise agreements which apply to their employees, and their terms, in order to readily identify (and quickly address) any instances of non-compliance. In addition, employers should: confirm that proper record-keeping (to accord with the FW Act and regulations) is occurring; review wages and payroll procedures to ensure that amounts paid to employees are sufficient and compliant under the relevant modern award or enterprise agreement; and obtain good quality guidance and advice from expert professionals in respect of understanding and navigating modern awards/enterprise agreements, the FW Act and regulations, and managing appropriate risk.

7.         Get ready for climate to become a workplace issue

In late 2019 and early 2020, bushfire smoke cloaked much of Australia. The air quality in parts of the country was above hazardous levels and residents were told to stay indoors. This became a workplace health and safety problem for many employers, each of which has an obligation to provide a safe workplace without any risks to health. With further and more intense bushfire seasons predicted over the coming years, it is inevitable that climate change will soon become a workplace issue.

ACTION: Employers will need to ensure that they monitor workplace conditions and have clear disaster plans in place, with adequate numbers of staff who are trained and able to enact disaster plans and take on additional duties during emergencies. The COVID-19 pandemic has demonstrated that many employees can work from home effectively and it is likely that ‘work from home’ orders will form a necessary part of any disaster plans (of course, the added difficulty in the context of bushfires is that an employee’s home may not necessarily be a safer place to work and this is something that employers will need to take into account).

In addition to reacting promptly and appropriately to disasters, employers should prepare for increased awareness and activism from employees and stakeholders regarding climate change issues, requiring employers to do better, be more sustainable and do their part to make a difference.

8.         Assess workplace harassment policies, training and protocols

The spotlight is squarely on workplace harassment following the release of the Australian Human Rights Commission’s (AHRC) report on sexual harassment in workplaces, Respect@Work, in March 2020. The report criticised the nature of the existing legal and regulatory system, asserted that it does not sufficiently place a burden on employers to prevent harassment from occurring in the workplace and made 55 recommendations for change. The Federal and State Governments are currently considering the report and are likely to adopt some of the recommendations made within it.

ACTION: Employers should keep abreast of any updates from the Federal and State Governments regarding changes to the laws. In the meantime, employer’s should ensure that they have in place suitable, up to date workplace harassment policies noting that it is not enough to just have such policy in place. Employers must, from the perspective of legal claims risk management, take reasonable precautions to prevent an employee from breaching the policy obligations. This requires employers to, among other things, implement training (and not just at the point of induction) in respect of the policies and the type of conduct that will not be tolerated and keep records of the training and attendees. Employers should also ensure that they have in place proper protocols for dealing with complaints. It may be that the policies, and consequential training, need to be amended following the adoption of any recommendations from the AHRC’s report however, doing nothing in the meantime is not recommended from a claims risk perspective.

9.         Review contractor arrangements 

Contractors will be a hot topic this year with the High Court recently granting special leave in two cases seeking to clarify whether workers are independent contractors or employees. Persons who engage contractors, particularly those who do so without having obtained specialised advice as to the arrangements, may be exposing their business to significant legal risk. Employers are prohibited from engaging as contractors persons who, on the basis of the arrangement as a whole, are employees.

ACTION: Where contractors are or have been engaged, ensure that proper professional advice is or has been obtained. The scope of such advice should include an assessment as to whether the contractors ought to have been engaged as employees in the circumstances and whether the arrangements subject the business (and potentially the people within the business, including directors, managers and human resources staff) to relevant risk.

10.     Be accountable for diversity, equity and inclusion

There has been a drive over the past few years to make Australian workplaces more diverse and inclusive. Now that the Black Lives Matter movement has put inequality and discrimination squarely in the spotlight, it is inevitable that employers will receive increased pressure from employees, unions, customers, boards and other stakeholders to prioritise this issue in 2021.

ACTION: Employers should assess their workforce, identify any issues and put in place (and where necessary, enforce) strong and effective policies and diversity and inclusion strategies.

As you go forth into 2021, clearly to be an eventful year in this space, if you have any enquiries or requires any assistance as to any of these issues or others, our workplace team nationally is well placed and prepared to assist.