Welcome to 2021 and the not so new normal for business!

Hola Gurus…. Happy new year and all that jazz… I don’t know about you, but I was hoping that 2021 was shaping up to be all that 2020 was meant to be. Like yunno, the start of a new decade filled with new beginnings, a year of wealth, health and growth. Alas, 2020 was more like a Krispy Cream doughnut. Shiny, alluring and good from far, but far from good.

While most of us were busily planning the return to Biz as usual to kick off the new year, unfortunately, Dan and COVID had other plans and so the crazy continues. False starts, dashed hopes, mutant strains and mini outbreaks that don’t end up being major outbreaks have wreaked havoc with small businesses plans to reopen and get people back to work!

We are having the Australian Open though. By hook or by crook the show must go on 🤷‍♂️🤷‍♂️🤷‍♂️

But at what cost many hospitality operators are asking?  Anyways, let’s get down to business and let you know all that is going on in the HR space right now, that may or may not impact you and your business.

Can employers enforce employees to be vaccinated with the COVID vaccine?

As we get closer to the mass roll-out of the COVID vaccine in Australia, we are all watching with interest to see who it will be made available to first and whether it is going to be compulsory. Many employers are wondering whether they can enforce their employees to be vaccinated and many workers are wondering whether they are going to have any choice at all.

There have been hints around international and state travel restrictions for people who are not vaccinated as well as certain types of workplaces mandating the vaccine much like they do the flu shots, but is this lawful and how will it work?

The latest Essential Poll by the Guardian found that:

“A majority of 58% have confidence vaccinations will effectively stop the virus within Australia”

The data suggests voters feel the new year will be more favourable than 2020 and they believe the national vaccination program can be delivered competently despite supply issues not entirely within Australia’s control. A majority of survey respondents say 2021 will be better for the nation (56%) and the economy (55%), while just under half the sample (47%) predict 2021 will be better for themselves personally.

In terms of the looming vaccination rollout, 68% expressed confidence that it will be done efficiently and 72% are confident it will be done safely. There is more hesitation about whether the program will turn the tide of the crisis, with 58% expressing confidence vaccinations will be effective at stopping Covid-19 within Australia.

The wash up seems to show that most people will be willing to get the COVID vaccine, but the real question is if it is made compulsory, will this sentiment change?

So what does this mean for employers and how will this pan out within your business?

COVID-19 vaccinations at work

As per the FWA website, we will continue to keep you updated around the interaction between COVID-19 vaccinations and workplace relations issues, as information about the approval and rollout of a vaccine emerges. The information we provide will depend on factors such as:

  • when a vaccine becomes available to the Australian community
  • any applicable laws, enforceable government directions and advice issued by Commonwealth, state and territory agencies.

According to Fair Work, whether an employer can require their employees to be vaccinated against COVID-19 will depend on the circumstances. Things to consider include whether:

  • a law, an enterprise agreement or an employment contract allows an employer to require its employees to be vaccinated
  • an employer gives its employees a lawful and reasonable direction to be vaccinated
  • an employee has a legitimate reason for not being vaccinated (for example, a medical reason).

Whether a direction is reasonable is assessed on a case by case basis. There are a range of factors that may be relevant when making this assessment, including duties under work health and safety laws.

So blanket rules around compulsory vaccinations will need to be considered carefully by employers and although employers have a responsibility in work health and safety law to do what is reasonably practicable to create a safe workplace, and a power in common law to give employees “lawful and reasonable” directions, whether this means every employer will be able to enforce compulsory vaccinations remains unknown.

Employment law experts including barrister Ian Neil, RMIT professor Anthony Forsyth and Adelaide University professor Andrew Stewart have argued these powers could extend to ordering employees to get vaccinated. But you would need to prove that it was a reasonable request and what that means nobody is quite sure right now.

No court has definitively ruled on the question, although in November the Fair Work Commission deputy president Ingrid Asbury said it was “at least … arguable” in the context of a childcare centre directing staff to get the flu vaccine. You could see this extending to front line health workers as well as Aged Care workers. In fact these are the groups who are most likely to be vaccinated first.

The Australian Chamber of Commerce and Industry acting chief executive, Jenny Lambert, said Australia’s current laws “do allow” employers to direct employees to be vaccinated “in some cases” although the laws provide “a risk-based framework, not definitive [answers]”.

The Australian Council of Trade Unions (ACTU) has reportedly written to the government offering to work with them on the vaccine rollout to avoid a divisive debate about whether the vaccine should be compulsory in some workplaces.

The ACTU said its preference was for the vaccine to be voluntary with a mass public education campaign to maximise take-up.

So what can you do to prepare your workplace? Our advice is to create a policy if you plan on mandating vaccines and have a clear process to assess take up on a case by case basis.

A reminder that the final and third group of Award increases came into effect on the 1 Feb.

The third group covers the retail, accommodation and food services industry, as well as a range of other industries the complete list includes:

  • Air Pilots Award
  • Aircraft Cabin Crew Award
  • Airline Operations-Ground Staff Award
  • Airport Employees Award
  • Alpine Resorts Award
  • Amusement, Events and Recreation Award
  • Commercial Sales Award
  • Dry Cleaning and Laundry Industry Award
  • Fast Food Industry Award
  • Fitness Industry Award
  • General Retail Industry Award
  • Hair and Beauty Industry Award
  • Horse and Greyhound Training Award
  • Hospitality Industry (General) Award
  • Live Performance Award
  • Mannequins and Models Award
  • Marine Tourism and Charter Vessels Award
  • Nursery Award
  • Professional Diving Industry (Recreational) Award
  • Racing Clubs Events Award
  • Racing Industry Ground Maintenance Award
  • Registered and Licensed Clubs Award
  • Restaurant Industry Award
  • Sporting Organisations Award
  • Travelling Shows Award
  • Vehicle Repair, Services and Retail Award
  • Wine Industry Award

FWA have updated their Pay Guides and Pay calculator with the new rates. To seek help in implementing these changes, don’t hesitate to reach out.

Written by Head Guru

Emily Jaksch

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