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Asia employment law bulletin 2021

Australia

Developments in the light of COVID-19

Similar to many other jurisdictions, the global pandemic acted as the catalyst in transforming the Australian workplace environment. Many Australian employers were forced to adapt their set workplaces, such as office environments, to working remotely.

Towards a hybrid workplace – what should employers know

In 2021, employers who were previously reluctant to implement flexible working arrangements will need to carefully consider their ability to deny staff the option to work from home, now that it has been implemented as a viable option.

With the transition to remote working, research from The Centre for Future Work revealed that people working from home increased their weekly hours and were engaging in unpaid overtime.  The research found that employees worked an average of 5.25 hours of unpaid labour each week during the COVID-19 pandemic, with the worse affected group being full-time employees (who averaged 6.21 hours of unpaid overtime a week) closely followed by self-employed and part-time employees.  This means that employers who have been paying their workers an 'all-inclusive' wage or salary intended to cover all overtime and entitlements, may be at risk of underpaying their employees.  It also raises concerns about health and safety measures in the remote working environment. 

The duty of employers under Australian work health and safety legislation to ensure the health and safety of employees at work, extends to the home workplace. The research regarding unpaid overtime shows that employers must ensure they have measures in place to prevent employees suffering health and safety risks caused by excessive work hours, including risks to mental wellbeing such as fatigue and stress, even while employees are working remotely. This has also demonstrated that in many cases, workplace health and safety measures were previously inadequate to protect against the spread of infectious diseases in the workplace. 

New legislation - Fair work amendment bill

The various lessons learnt in 2020 led to the introduction of the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 into Federal Parliament.  The industrial relations omnibus bill introduces reform in multiple areas as a result of widespread consultation with employers, industry groups and trade unions.

A significant reform proposed in the bill is the criminalisation of wage theft.  The bill will introduce jail terms and significant fines for employers who dishonestly engage in a deliberate and systematic pattern of underpaying one or more of their employees.  The offence will carry a maximum penalty of a four years’ jail sentence and/or AUS$1.11 million (approximately US$0.88 million) in fines for individuals, and up to AUS$5.55 million (approximately US$4.38 million) for a body corporate. The Fair Work Ombudsman, the workplace relations regulator, will also receive increased funding to investigate underpayment and non-compliance by large businesses, and to set up a free advisory service for small businesses to advise them about paying their staff correctly under the applicable industrial instruments.

In line with the culture of flexible working that was introduced during the pandemic, the bill also proposes to extend flexible working provisions introduced during COVID-19 until March 2023, which will enable employers to vary employees’ duties and location of work for a further two years.

Vaccinations - no jab, no job?

The new hybrid working environment i.e. both on-site and home workplaces, may also be impacted by the rollout of a COVID-19 vaccine in Australia, and mandatory vaccination may form part of health and safety practices in future for employers.  Australian employers have a duty under the work health and safety legislation to provide a safe workplace for employees and, as far as reasonably practical, protect the health and safety of their employees and other people who may be put at risk from their business.

However, an employer's direction to employees to be vaccinated prior to returning to the traditional workplace should not be made without ensuring that such a direction to employees is lawful and reasonable.  Employers will need to consider the applicable circumstances of their workplace and their employees’ risk of exposure to determine whether compulsory vaccination is reasonable, noting that some employees may object to vaccination.  Otherwise, if an employer requires mandatory vaccination in circumstances that may not be reasonable, it may be at risk of discriminating against workers who object to vaccination.

For example, if a workplace involves minimal interaction with clients or the public and other measures may adequately protect employees without vaccination, it may not be considered reasonable to require that all employees must be vaccinated.  However, as seen in the recent Maria Corazon Glover v Ozcare [2021] FWC 231 decision, in some circumstances, vaccination may be an “inherent requirement of the role”, and an employee's refusal to be vaccinated may lead to termination of employment.

Kate Clissold, Lander & Rogers

Aaron Goonrey, Lander & Rogers

Luke Scandrett, Lander & Rogers