No Comments

Religious Exemptions to Covid-19 Vaccinations

Following the ‘Delta’ Covid-19 outbreak in NSW in the second half of 2021, the Government introduced a ‘Delta outbreak’ specific Public Health Order, which prohibited certain forms of travel, and work activities unless the person had received one or more vaccinations for Covid-19.

In response to this Public Health Order, a vocal minority of the population claimed that their rights were being infringed upon by what was effectively a statutory vaccine mandate.

Perhaps buoyed by the ongoing debate surrounding the Federal Government’s religious discrimination bill, many of those in the religious community who were opposed to the vaccination requirements in the Delta outbreak Public Health Order pressed for exemptions based on religious belief.

The Public Health Order made clear that a Covid-19 vaccination will not be required for those who can provide a Medical Contraindication Certificate which was to be completed by a medical health professional. However, the Public Health Order provided no exemptions for those opposed to vaccination on ideological, religious or other grounds.
Continue reading…

No Comments

Changes to Casual Employment Requirements

In March 2021, the Federal Government made several amendments to the Fair Work Act 2009 in order to address the increasing number of claims and disputes associated with casual employment (such as the significant 2020 decision of Workpac Pty Ltd v Rossato).

These amendments included:

  • express statutory definitions of a ‘casual employee’ and a ‘regular casual employee’;
  • casual conversion provisions that applied to all national system employees (including those not covered by a Modern Award);
  • new restrictions on the ability of employment relationships to implicitly convert from casual to permanent status in the absence of any oral or written agreement;
  • the introduction of a Casual Employment Information Statement and a requirement that employers must provide the Statement to all new casual employees; and
  • the introduction of statutory set-off provisions associated with the payment of casual loading.

Following on from these changes, on 19 July 2021, a full bench of the Fair Work Commission further clarified and confirmed the changes that would be required to the modern awards based upon these statutory amendments.
Continue reading…

No Comments

Updated Sexual Harassment Laws

On 2 September 2021, the Federal Government passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Act (the Act) 2021.

The Respect at Work Act adopted 6 of the 55 recommendations contained in the Respect@Work Report, and made various technical amendments to the Sex Discrimination Act 1984, the Australian Human Rights Commission Act 1986 and the Fair Work 2009. These various amendments were designed to provide greater protections to employees and other individuals against Sexual Harassment, and reflect the increasingly low societal tolerance for such conduct in the workplace.

The changes introduced by the Act include:

Sex Discrimination Act 1984:

  • extending the protections under the Act to all members of State and Federal Parliament, State and Territory public servants, and judges along with their staff and consultants;
  • replacing the language of ‘employee’ and ‘employer’ with ‘worker’ and ‘person’ conducting a business or undertaking – thereby affording protections against workplace sexual harassment to interns, apprentices, volunteers, and self-employed persons;
  • Continue reading…

No Comments

Mandatory Vaccination Policies in the Workplace

2021 was a challenging year for business as the Covid-19 pandemic continued to run rampant throughout Australia. Lockdowns and strict business restrictions led many businesses to close their doors, furlough their employees, or to temporarily cease trading until such time that it was safe to resume doing so.

In response to the perceived lack of guidance and protections from State and Federal Government, employers began introducing mandatory vaccination policies as part of an effort to protect their employees and customers from infection and to ensure compliance with their work health and safety obligations.

However, many of these workplace policies have been subject to significant backlash and challenge by employees, who contend that employers did not have the authority to direct them to become vaccinated. Such challenges have led to a significant rise in employee disputes, dismissals and unfair dismissal claims.

In response, the Fair Work Ombudsman (FWO) provided some general guidance for determining whether an employer’s requirement that its employees become vaccinated is likely to be reasonable.
Continue reading…

No Comments

Mandating Covid-19 Vaccinations in the Workplace

With NSW slowly returning to a degree of normalcy following the recent Covid-19 ‘Delta’ outbreak, it is critical that employers do not become complacent about the ongoing risk of viral infection and continue to take all reasonable steps to ensure the health and safety of their employees and other persons in the workplace.

The preponderance of advice from medical and health experts is that the best long-term protection against Covid-19 infection (and the more serious forms of health issues arising from such infection) is to be fully vaccinated with an approved Covid-19 vaccine.

In mid-October 2021, the Supreme Court dismissed several legal challenges over the NSW Government’s Public Health Orders, and affirmed the power of the Health Minister to mandate Covid-19 vaccinations for workers in certain industries under the Public Health Act 2010.

Following the Supreme Court’s decisions, more and more employers have begun taking the initiative of introducing vaccination mandates within their own workplaces.  However, such a step is still fraught with legal risk particularly given that non-compliance with such mandates is liable to result in employee dismissals (and the claims that will inevitably follow).
Continue reading…

No Comments

The JobMaker Scheme

Whilst handing down the Federal Budget in October 2020, the Federal Government introduced another wage subsidy scheme aimed at addressing the increase in unemployment due to the ongoing Covid-19 pandemic and called the JobMaker scheme.

The purpose of the JobMaker scheme is to support and incentivise employers to create new jobs within their business and employ additional people, with eligible employers to receive the following ‘hiring credits’:

  • $200 a week for each eligible employee hired who is aged 16-29 (up to a maximum credit of $10,400)
  • $100 a week for each eligible employee hired who is aged 30-35 (up to a maximum credit of $5,200)

The hiring credit is payable weekly for a period of 12 months following the date on which the employee was hired, provided they are employed by the employer between 7 October 2020 and 6 October 2021.

Amongst other things, the employer must be able to demonstrate:

  • an increase in their total employee headcount from 30 September 2020 (the ‘reference date’)
  • Continue reading…

No Comments

The JobKeeper 2.0 Scheme

As part of the Federal Government’s initial response to the Covid-19 pandemic the JobKeeper scheme assisted to keep businesses afloat (and employees employed) through the payment of employee wage subsidies.

As the original JobKeeper scheme ended on 28 September 2020 and the effects of the Covid-19 pandemic are continuing, the Federal Government introduced the replacement ‘JobKeeper 2.0’ scheme to apply from 28 September 2020 to 28 March 2021.

As with the original JobKeeper scheme, JobKeeper 2.0 operates by providing eligible employers with fixed fortnightly wage subsidies (JobKeeper payments) that the employer is required to pass on to all eligible employees.

However, JobKeeper 2.0 provides two different rates of JobKeeper payments which reduce part-way through the life of the scheme as follows:

28 September 2020 to 3 January 2021 (Quarter 1):

$1,200 per fortnight for:

  • eligible employees who worked 20 hours or more a week on average in the four week pay periods before either 1 March 2020 or 1 July 2020
  • Continue reading…

No Comments

Miscellaneous Award 2020 – Extended Application

In mid 2020 the Fair Work Commission made a variation to the coverage provisions of the Miscellaneous Award 2020 (Award) which dramatically increased the potential application and scope of the Award to cover employees who would otherwise be ‘award-free’.

The Award has historically acted as a ‘catch-all’ to cover employees who were traditionally award-covered but who were not covered by any of the other modern awards.

Prior to 1 July 2020, the coverage provisions in the Award (including the previous 2010 version of the Award) included the following exclusions:

4.2 The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.

4.3 The award does not cover employees:

  1. in an industry covered by a modern award who are not within a classification in that modern award; or
  2. Continue reading…