A number of employers now must consider the COVID-19 vaccination. As an employer, can you require your employees to get vaccinated? The answer is yes. But there are some caveats, mainly around:

• Inherent requirements of the position
• Workplace health and safety obligations
• Reasonable and lawful directions
• Dealing with objections
• Dealing with objections around the inherent requirements of the position and medical grounds.

So, what now?

Here are 5 questions for all employers to consider in the coming months.

1. Have you drafted a COVID-19 vaccine policy and procedure?

This is a crucial question. If your organisation will likely be working in industries that will require COVID-19 vaccinations or it will likely form an inherent requirement of the position, then a policy and procedure should be drafted.  On this basis a few things need to be considered:

• Who will draft the policy?
• Is the policy drafted by an Employment Lawyer?
• Does it link with employment contracts?
• Are there other industrial instruments to consider; for example, modern award, Enterprise Agreement or even other policies and procedures?
• Does the policy (as it is drafted) provide for contractual or other workplace rights for the employee? If so, how can you mitigate this risk and liability?

2. Have your Workplace Health and Safety (WHS) obligations been assessed properly?

Have your WHS obligations been assessed, and if so what are they? What will be the reasonable steps required to be taken?

For those in health and frontline worker support, there will be much higher obligations than companies with several office workers who work from home or work remotely.

Obligations could include:

• Undertaking a WHS assessment
• COVID-19 vaccination training
• Obtaining legal advice on the WHS obligations for the company
• Identifying all risks and reviewing and assessing the risks.

3. Has your workforce been consulted?

If you’ve undertaken a consultation, what was said and what documents were provided?

Have you complied with any industrial instrument obligation such as a Modern Award or Enterprise Agreement?

Do employment contracts or other policies provide obligations for how and when the consultation is to take place?

4. What objections are there by employees to taking the vaccine?

By far the biggest question we receive is around what employees will say about being directed to take the COVID-19 vaccination.

Several objections come to mind:

• Religious
• Ethnic
• Social
• Political
• Medical
• “I simply don’t want to”
• “it is untested”.

All these objections, and any others, these questions must be addressed through considering:

• Workplace health and safety obligations
• Contractual obligations you may have with third parties
• The inherent requirements of the position
• Will the direction to take the vaccine be deemed reasonable and lawful.

5. If you’re considering disciplinary action, what needs to be considered?

This is a very difficult issue to traverse.  If you’re seriously considering disciplinary action based on a refusal to take the vaccine, consider the following issues:

• reasonable adjustments
• WHS obligations
• discrimination legislation
• unfair dismissal claims
• general protections claims
• bullying claims
• reasonable management action
• natural justice and procedural fairness
• any other workplace rights that may have been utilised by the employee
• compliance of any industrial instruments regarding procedures for taking disciplinary action

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In this instalment, Jonathan shares valuable information about what employers should expect and prioritise in 2021. 

The post-pandemic landscape has meant a number of challenges for employers and HR. As an Employment Lawyer, human resources departments ask for assistance on a range of matters. Here are some quick wins for you and your HR team in 2021.

1. Prioritise good performance management training

Some companies have seen a spike in productivity and others have seen productivity limited.  It is important to understand the unique problems that have compounded poor performance management.

A number of cases have succeeded against employers due to poor performance management by managers and supervisors. This has led to success in:

• unfair dismissal claims
• general protections claims
• discrimination disputes
• workers compensation claims

A focus on performance management training is the key to success. Here is some quick advice for how you can to improve staff performance from an employment lawyer:

• Ensure you have a performance management policy – if you don’t have one, develop one. It can be a great kick-starter for training
• Understand the consequences – for managers and supervisors, they need to understand what poor performance management can actually lead to – yes, there is liability for the company but also personal liability (accessorial liability). Case studies are a good way to demonstrate this.
• Consider external training, potentially from a specialist employment law firm, as they may be able to demonstrate the seriousness of performance management to managers and supervisors.

2. Review your payroll

Underpayment of wages is a significant risk for many organisations.  Big names such as Woolworths, Chatime and even a former MasterChef George Calombaris have felt the wrath of the Fair Work Ombudsman.

Read more: Google pays $3.8M to settle allegations of pay, hiring discrimination

Automated payroll systems are efficient. However, keep in mind the rules you input into the system will either be wrong or right.  Even if they are right – over time they could become stale and even be contrary to a legal obligation under a Modern Award.

In a previous article, I set out three key tips that to help your business to avoid risks, including:

• review your payroll system
• ensure your payroll system reflects rules of awards
• compare your HR system with your payroll system

3. Keep an eye on immigration updates 

More and more opportunities around utilising a migrant workforce and skilled employees to plug gaps in the business continue to cause HR headaches.

• General Skilled
• 482
• Subclass 186
• Employer-Sponsored
• Partner Visa
• Australian citizenship

Now is a good time to understand some of the opportunities that are coming in 2021 to migration laws. Getting in touch with a migration agent, such as No Borders Migration, is a good start.

4. Industrial relations law changes

The government is looking to make changes to IR laws. At this point we understand there will be changes to:

• Casual employee rules to combat previous cases around Workpac v Rossato and Workpac v Skene
• Definition of a casual employee defined in the Fair Work Act
• Enterprise bargaining changes which may lead to a “slackening” of the BOOT test and quicker turnarounds
• Simplifying some awards including give key “distressed” industries opportunities to pay loaded rates
• Allow project life pay deals which are designed to prevent industrial (strike) action on the aspect of increased wages.

Continue to read about these issues to keep yourself informed. These changes will require a lot of preparation and potentially, advice, going forward.

Do you have a question for Jonathan? Send it to editor@www.rmm.onenazmul.dev. Jonathan and his team of employment lawyers at NB Lawyers will answer as many as they can and share these answers in Recruitment Marketing Magazine*. 

*This series may be limited. Legal advice is general in nature. For tailored legal advice specific to your organisation, industry and location, speak to your organisation’s legal advisor.  

Jonathan Mamaril is a Director with NB Lawyers, the Lawyers for Employers, leading the Employment Law and Commercial Law teams. Jonathan assists employers in mitigating risk and liability and advises clients on all aspects of Employment Law. His focus is on being practical and providing value for clients through education and training to help them avoid headaches in the first place; and when a problem does occur, to deal with it properly so it doesn’t become a larger, more litigious problem. 

The post 4 hot tips for HR from an Employment Lawyer: Preparing yourself for 2021 appeared first on Recruitment Marketing.

Our editor Susanne Mather recently hosted an exclusive interview with Jonathan Mamaril, Director for NB Lawyers – Lawyers for Employers. Mamaril leads NB Lawyers’ Employment Law and Commercial Law teams. He assists employers in mitigating risk and liability and advises clients on all aspects of Employment Law. He focuses on being practical and providing value for clients through education and training to help them avoid headaches in the first place; and when a problem does occur, to deal with it properly so it doesn’t become a larger, more litigious problem.

Participant interaction, feedback and questions from this interview session was overwhelming! That’s why, Recruitment Marketing Magazine wanted to give subscribers the opportunity to ask free legal questions as part of our “Ask an employment lawyer” series.

Do you have a burning employment law question you’ve always wanted to ask but haven’t had the opportunity?

Send your questions to editor@www.rmm.onenazmul.dev. Mamaril and his team of employment lawyers at NB Lawyers will answer as many as they can and share these answers in Recruitment Marketing Magazine*. 

So far, talent professionals, from talent acquisitions leaders, to recruitment and HR professionals and all types of hiring managers have asked about fair work and other legal issues. In particular, recent General Protections and Unfair Dismissal cases have created uncertainty around processes for stand-downs and terminations, and performance management (particularly with work-from-home set ups).

Read: Employment Lawyer Jonathan Mamaril’s tips for hosting a workplace Christmas party.

In this Recruitment Marketing Magazine series, Mamaril will answer your questions and share simple solutions to navigate employment law, with real case studies and examples.

This series may be limited. Send your employment questions to editor@www.rmm.onenazmul.dev.

*Legal advice is general in nature. For tailored legal advice specific to your organisation, industry and location, speak to your organisation’s legal advisor.  

The post Free, expert legal advice for talent professionals: Ask an employment lawyer appeared first on Recruitment Marketing.

The Fair Work Commission’s recent decision in Chambers v Toll Transport Pty Ltd [1] (the Decision) is a useful reminder for employers. Not all ‘out of work hours’ misconduct by employees may give rise to a valid reason for dismissal, especially in the context of a Christmas party.

The Decision is a welcome segue as we transition to a period of the year where many employers hold Christmas functions to celebrate the end of the year. Many of your team members will be keen for celebrations, especially after dealing with all the challenges from COVID-19. Nonetheless, it’s important for you to temper this keenness by understanding potential employment law risks.

So, if you’re planning an office Christmas party, here’s some information about the recent Fair Work Commission Decision and three tips to keep in mind, so you can focus on the true spirit of the holidays and create a positive experience for your team members.

What happened?

Two employees, both union delegates, attended a union meeting and stayed overnight in a hotel. The employer paid for their airfares, accommodation and meals. They were able to attend the union meetings on delegate’s leave – paid leave provided by the employer to attend union training, campaign activities or conferences. Following the conclusion of the union meeting, both employees consumed alcohol at the restaurant of their hotel.

Union delegates are not ‘employed’ by a union. Rather, they are employees of an employer, who are also a member of a union and have accepted specific union responsibilities.

The two employees had a disagreement with each other. It became violent, and one of the employees tore off his jumper and goaded the other into a fight. The other employee acted in self-defence and knocked him down. Neither employee was wearing a uniform of their employer at the time of the fight.

The employer terminated both employees, after an investigation, for reasons of serious misconduct (although they were paid their notice periods). The employer asserted the fight constituted ‘out of work hours’ misconduct because both employees were on delegate’s leave (paid by the employer), staying at accommodation and enjoying meals paid by the employer and the fight was caused by a work-related conversation.

Have an employment law question for Jonathan? Email editor@www.rmm.onenazmul.dev

What was The Decision?

Certain ‘out of work hours’ conduct can justify an employee dismissal, depending on whether it damages the employer’s interests (such as reputation) or is otherwise incompatible with an employee’s duties. The Commission applied the decision in Rose v Telstra [2], which states: certain circumstances employee’s employment may be legally terminated due to out-of-hours conduct. This includes conduct that

•  is likely to cause serious damage to the relationship between the employer and employee
• damages the employer’s interests
• is incompatible with the employee’s duty as an employee.

In practical terms, the employees in the Decision sought to argue that the fight occurred during their private time and when they were on leave, away from work, to perform union duties. They were not wearing uniforms and therefore the reputation of their employer could not have been affected.

The Commission accepted the employee’s arguments. They agreed there was no evidence the employer’s reputation or interests had been damaged. No members of the public witnessed the fight and associated it with the employer. The Commission accepted the employees were on leave, and therefore not ‘at work’. Even if it was assumed the employees’ attendance at the union meetings were connected to the workplace, what they chose to do after the meetings was their own ‘free time’. Furthermore, the employer voluntarily paid for the expenses. The organisation was under no obligation to do so.

The cooperation of the employees during the employer’s investigation was viewed favourably. This was an important factor considered by the Commission, weighing against the employee indicating he was rejecting his employment contract.

With the consequences of this decision in mind, here are three tips to keep in mind when planning your workplace Christmas party.

1. Clarify the scope of your event

• Specify the hours that will constitute the ‘official’ work Christmas party. Any private arrangements between employees afterwards would not form part of the Christmas party. Employees bear their own risks when attending non-official events.
• Remind employees workplace policies will apply during the ‘official’ event.
• If non-employees are attending (such as family members, guests or clients), consider reminding employees, in writing, of appropriate standards of behaviour.

2. Conduct refresher training on policies

• If you have a code of conduct or appropriate behaviour policy in place, consider undertaking brief refresher training prior to your Christmas party.
• Consider if there are appropriate safeguards for pictures taken by employees at the Christmas party. (Think about whether you need to issue any directions to your employees to avoid posting inappropriate pictures of the Christmas party.)
• Emphasise any social media policies you have in place.
• Ensure your senior employees are reminded of the need to supervise junior employees and display exemplary behaviour consistent with workplace policies.

3. Planning ahead of the Christmas party

• Inform employees who they can confidentially report their concerns to in the event of an incident at a work Christmas party. Be prepared to conduct an investigation at short notice.
• If alcohol is on offer, ensure employees are not drinking to excess and increasing the risk of injuring themselves. Manage health and safety obligations, for example, by ensuring employees are provided with transportation.

Have an employment law question for Jonathan? Email editor@www.rmm.onenazmul.dev

Jonathan Mamaril is a Director with NB Lawyers, the Lawyers for Employers, leading the Employment Law and Commercial Law teams. Jonathan assists employers in mitigating risk and liability and advises clients on all aspects of Employment Law. His focus is on being practical and providing value for clients through education and training to help them avoid headaches in the first place; and when a problem does occur, to deal with it properly so it doesn’t become a larger, more litigious problem. 

[1] Wayne Chambers v Toll Transport Pty Ltd [2020] FWC 5819.

[2] Rose v Telstra [1998] AIRC 1592

The post Planning a work Christmas party? Read this appeared first on Recruitment Marketing.

Lets’ start this conversation with a few questions that I’m sure many business owners and leaders in the staffing industry are asking themselves at the moment: Is that a casual worker we just on-hired? Are we sure they are a casual worker? Or are they a permanent employee, with full leave and other entitlements? The casual rate they are receiving could become awfully expensive later if they are also entitled to annual leave, long service leave, redundancy pay and termination notice.  Not to mention the casual loading you’ve paid them.

Well guess what?  You do not get to offset that against a not-casual-worker’s claim for entitlements.  Congratulations on your new full-time employee that you generously paid at a casual rate!

Since 20 May 2020, this is exactly the risk you take on every casual hire and it transforms the entire staffing and labour hire industry and the broader Australian business economy.

20 May 2020, of course, was when the “Rossato Decision” was handed down by Justices Bromberg, White & Wheelahan, which shook the trees quite literally.  The ruling was that Mr Rossato was not a casual employee, even though he was:

• hired under 6 consecutive contracts that explicitly stated he was hired as a casual employee
• covered by an EBA that covers casual workers and grants a 25% casual loading
• the loading is specifically in lieu of entitlements (leave, redundancy pay & termination notice)
• was paid at a flat rate, incorporating the casual loading, which was higher than the minimum required by the EBA.

So it walks and talks like a casual, is hired and paid as a casual… but now has the entitlements of a full-time permanent worker.

If it sounds like a nightmare, you’re on the right track (because it’s not as if the Modern Award system isn’t already tricky enough!)

Welcome to your new status quo.

The ‘Rossato’ decision is not going to go away, nor is it likely to be changed – because it is a confirmation of a previous decision. That makes it the new status quo, as established in WorkPac -v- Skene (“Skene”).

Skene’s ruling was that just because you identify, contract and pay someone as casual, doesn’t mean entitlements don’t apply. Under Skene, if an employee can show working arrangements that demonstrate a firm advance commitment as to:

1. the duration of employment and/or the days and hours they are scheduled to work; and

2. that the work scheduling/rostering is regular and systematicThen they may still be considered as having those entitlements like a full-time permanent employee.

Why did the ‘Rosatto’ decision go against casual worker entitlements for casual hires?

There were a few primary factors in the decision, including:

• Rosters were provided to Rossato months in advance, which demonstrated the employer’s advance agreement that he would be employed in a stable, predictable and indefinite manner
• Although he was paid a flat rate higher than the EBA required, the exact amount he was paid due to the “casual” nature of his employment was not specified.
• There was no way to conclude that Rossato’s rate wasn’t simply the going market rate at the time.

His contract stated that he received his rate in lieu of entitlements, instead of stating that the rate was in payment for or in satisfaction of entitlements

What can you do to avoid this scenario?

You could not hire casual staff at all. That’s not a wonderful solution. At least, in that way, you’re paying for what you get.

In specific industries, where you know your clients are going to want regular candidates at regular times on an ongoing basis you will need to consider the regularity that candidates are engaged.  For example, changing rosters and patterns of work.

What is an absolute imperative, is that the information provided to your candidates needs to be noticeably clearer on how they are engaged and how their entitlements are being dispersed to them?

Alternatively, you might simply accept that hiring casuals is a gamble that may result in a hidden balloon payment of leave, redundancy payout and notice requirements.

If you’re looking for a more reasonable and economically sane strategy, you can try ratescalc.com to protect your business and business process against such outcomes. https://www.ratescalc.com/ has a full suite of calculators, automated document production, advanced APIs and integrations with many recruitment systems.

That means, no matter what the ‘Fair Work Commission’ decides or what happens in the future, your employment operations will remain fair and equitable. Even if it is decided that you have a full- time permanent employee after the fact, the casual loading is itemised and specifically paid as payment for entitlements not received.

So, that means that your hires can receive a casual’s rate or a permanent staff member’s entitlement which is clear but never both for the same work done.

We cannot think of anything fairer to all parties than that!

(If you’d like to read a little more about this landmark case, check out this article from IRIQ which provides an excellent brief summary.)

Disclaimer: This article is no substitute for legal advice and does not take into account the particulars of your individual situation. Whilst Ratescalc offers many features to protect against industry risk, your work process and daily practices will always be the most critical factor in risk mitigation and avoidance. The team at ratescalc can guide your organisation on how best to enable your business through the use of its proprietary software. Formal notices, contracts and schedules issued to your candidates / employees on behalf of your organisation should be reviewed by your trusted legal advisors.

Col has worked in the recruitment industry for nearly 30 years with 8 years specifically in technology consulting.  He has worked with boutique, national and global organisations gaining invaluable experience and life lessons to share and enable my clients with these unique insights. 

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