by Nick Leon Bartier Perry

We all know how precious our weekends are – for well-earned downtime and respite from work, but many of us also spend time on weekends caring for children and other family members.

In a recent decision, Commissioner Webster of the Industrial Relations Commission of NSW provided local councils with helpful guidance on their ability to make employees work overtime on weekends when they
didn’t want to.

The case deals with the requirement to work “reasonable overtime” in the Local Government Award 2017 (the Award). The Commission applied a common sense approach that provides comfort for councils in managing the delivery of essential services, many of which are available to their communities on weekends.

The case and what it means for you

Do I really have to do overtime?

Mr Robinson had worked in the Hornsby Shire Council cleansing and waste unit for 19 years. During that period, employees were required to work regular weekend overtime shifts to ensure that amenities provided by Council were maintained daily. Employees routinely performed three weekend-morning overtime shifts a month, each lasting about five hours.

Following a return to work after a period of absence, Mr Robinson advised his manager that he no longer wished to do regular weekend overtime. Among his reasons was a desire to care for his granddaughter, who had a medical condition, and provide respite for his daughter and son-in-law.

Council considered Mr Robinson’s request and decided that its requirement for regular weekend overtime was reasonable. As a compromise, Council offered to reduce his overtime shifts to two shifts per month.

Mr Robinson wasn’t happy with Council’s decision and the union lodged a dispute.

The overtime requirement – “perfect opposites”

In resolving the dispute, Commissioner Webster was required to interpret clause 19(viii) of the Award, which provides:

(a) Subject to paragraph (b), the employer may require an employee to work reasonable overtime at overtime rates.

(b) An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable.

(c) For the purposes of paragraph (b), what is unreasonable or otherwise will be determined having regard to:

  • any risk to the employee;
  • the employee’s personal circumstances including any family and carer responsibilities;
  • the needs of the workplace;
  • the notice, if any, given by the employer of
  • the overtime and by the employee of their intention to refuse it; and
  • any other matter.

Commissioner Webster confirmed that the clause confirms the “well-established proposition that the employer can indeed require an employee to undertake reasonable overtime”, but also that at the same time employees have a “concurrent right” to refuse hours if they are unreasonable.

The union argued that clause 19(viii) involved a two-step approach. First, one needs to work out if the overtime is reasonable, and if it is, whether the working hours are unreasonable (having regard to clause 19(viii)(c)). The Commission disagreed, stating:

What is evident from the dictionary definition of both “reasonable” and “unreasonable” is that they are perfect opposites. It defies reason that overtime can be both “reasonable” and the overtime hours “unreasonable” at the same time. The analysis in the context of whether overtime is “reasonable” or the hours “unreasonable” requires an examination of the same matters and that need only occur once to arrive at a conclusion whether the employee may refuse to do the relevant overtime. This interpretation of the clause is consistent with its purpose, namely, to balance the interests of the parties to the employment relationship to ensure that the employer may require overtime to be undertaken, but only if the requirement is reasonable and not unreasonable.

The decision

Commissioner Webster held that the requirement to work two early morning, five-hour Saturday overtime shifts each month was reasonable, and that Mr Robinson’s refusal to perform those hours was unreasonable.

The Commissioner accepted that it was important the work be performed each day of the week and, therefore, that overtime was required. She said the requirement was not excessive and “does not warrant the engagement of a new and separate workforce to undertake the eight weekend shifts required”. Commissioner Webster also noted that:

  • Mr Robinson had worked under these conditions for a lengthy period and had recently signed a position description which expressly provided that the overtime was required on weekends in his position; and
  • In order to assist Mr Robinson, Council had offered a compromise of its usual position of requiring staff to work three regular weekend overtime shifts a month.

While she was sympathetic to Mr Robinson’s circumstances and his caring obligations, they had to be balanced against Council’s operational requirements and the impact Mr Robinson’s refusal would have on other staff members. Mr Robinson was not the primary carer of his granddaughter and only wanted to be available for the possibility he may be needed. Mr Robinson remained available to care for his granddaughter all week, other than the five hours early on a Saturday morning.

Guidance for councils

The decision is particularly useful as, to date, there has been limited consideration of the requirement to work reasonable overtime. The decision:

  • Confirms that councils can require employees to undertake reasonable overtime
  • Highlights the benefit of the position description identifying the need to work overtime
  • Suggests that an existing pattern of requiring overtime may also be relevant.

While ‘carer responsibilities’ should not be ignored, they cannot be used as a shield to refuse to perform overtime. The employment contract and employee obligations must be discharged to the greatest extent possible, and as always it is about finding a workable balance – something Mr Robinson unfortunately refused to entertain.

In determining what is “reasonable overtime” versus “unreasonable hours” there is an attempt to try and balance the needs of the council (including its operational requirements and the impact on other staff) against the employee’s personal circumstances. The balance results in one answer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

 

by Jan Dransfield , Lucienne Mummé and Claire Seremetis Johnson Winter & Slattery

Introduction

On 9 December 2020, the Attorney General tabled a new bill (the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020) which proposes significant changes to the Fair Work Act 2009 (Cth) and related laws.

While the amendments are intended to be effective by March 2021, many of the changes (particularly regarding enterprise agreement making) are being resisted by the ACTU and the Opposition. It is therefore expected that concessions will be needed in this area for the Bill to pass the Senate.

Key areas of IR reform in the Bill include:

  • Casuals: clarifying casual employment and providing a statutory right for conversion to permanent after 12 months, as noted in our newsletter last week ‘ The Casuals Conundrum Resolved?‘.
  • Enterprise agreements: simplifying the Better Off Overall Test (BOOT), implementing a 21-day approval deadline for enterprise agreements and a new eight-year life span for certain Greenfields Agreements.
  • Modern Awards: enhancing part-time work flexibilities for industries impacted by COVID-19 (e.g. retail and hospitality).
  • Underpayments: introducing substantial penalties for underpayments and new mechanisms for compliance (also see our recent newsletter).

Casual employees

As noted in our newsletter, changes to casual employment include:

  • a new statutory definition of casual employment which will apply to casual offers made before, on or after the start of the new laws;
  • mechanisms designed to prevent “double dipping” where employees incorrectly characterised as casuals receive both the 25% casual loading and paid entitlements only available to permanent employees;
  • a statutory right to casual conversion, which is currently found in many Modern Awards.

Importantly for employers, offers to convert to permanent employment need not be made if there are reasonable business grounds not to make the offer and these reasonable grounds are based on facts which are then known or reasonably foreseeable (e.g. the position will cease to exist within the next 12 months).

Enterprise agreements

Streamlining approval

The Bill seeks to simplify the enterprise agreement making and variation process through changes that include:

  • Only allowing votes from casual employees who worked during the voting access period.
  • Replacing the pre-approval requirements with a requirement that employers take reasonable steps to ensure employees are given a fair and reasonable opportunity to decide whether or not to approve a proposed agreement.
  • Requiring the FWC to approve agreements, as far as practicable, within 21 working days
  • Limiting the parties who can intervene at the approval or variation stage, unless exceptional circumstances exist.
  • Requiring an NES interaction clause in an enterprise agreement.

Key changes to the BOOT

Important changes to the BOOT require that the FWC must:

  • Only take into account patterns or kinds of work, or types of employment, that employees are currently engaged in or are reasonably foreseeable, not those that are hypothetical or not reasonably foreseeable;
  • Have regard to the overall benefits (including non-monetary benefits) employees would receive under the agreement (for example flexible working arrangements and time off in lieu arrangements); and
  • Have regard to views expressed by employers and employees and their bargaining representatives.

Other amendments include:

  • Expanding the circumstances in which an enterprise agreement that does not pass the BOOT may nevertheless be approved by the FWC.
  • Requiring applications to terminate enterprise agreements not be made within three months of their nominal expiry date.
  • Extending the timeframe that employers must give employees a notice of employee representational rights from 14 days to no later than 28 days.
  • Enterprise agreements approved prior to the commencement of the FW Act and prior to the commencement of Modern Awards will automatically expire on 1 July 2022.

However, with objections from the unions and Labor, the Attorney General has announced that a number of concessions will be made in this area to ensure that the Bill is passed.

Greenfields agreements

Greenfields agreements may be made for a duration of up to 8 years for projects of over $500 million, and projects between $250 million and $500 million, by ministerial discretion. These agreements will need to include defined annual wage increases over the term of the agreement.

Modern Awards and Part-time Flexibilities

Part time flexibility provisions are to be included across identified Modern Awards (including the Retail, Hospitality, Commercial Sales and the Vehicle Repair, Services and Retail Awards) which are “distressed sectors” most adversely affected by COVID-19.

The Bill allows such employers and part time employees whose ordinary hours of work are at least 16 hours per week, to make “simplified additional hours agreements” which allow the employee to work additional agreed hours at ordinary rates of pay.

The Bill also replicates some of the JobKeeper flexibilities, so that employers covered by the identified Modern Awards may give directions to an employee about their duties and location of work. These flexibilities are to be available for a period of 2 years from the passage of the Bill.

Underpayments

As noted in our recent newsletter, the Bill introduces a new criminal offence for dishonest and systematic wage underpayments and increases the value and scope of civil penalties and orders.

This includes a fifty per cent uplift to the ordinary penalty rates for breaches of the sham contracting provisions and remuneration related breaches, and a new penalty calculation method for remuneration-related breaches by companies based on the benefit they obtained from the contravention.

The Bill seeks to enable employees to more easily recover entitlements by increasing the cap for small claims from $20,000 to $50,000 and enabling the Federal Circuit Court and the Magistrates Court to refer small claims to the FWC for conciliation, and arbitration by consent.

Other

The Attorney-General has written to the President of the FWC requesting consideration of how best to insert loaded rates into the Retail, Hospitality, Restaurant and Registered & Licensed Clubs Awards. Employer and employee representatives are to be involved in the review process, which is to be completed by the end of March 2021.

The Attorney-General has also announced that the Fair Work Ombudsman will be given the ability to provide authoritative advice on request. The Ombudsman must not fine businesses that rely on that advice and remediate any identified error.

Originally Published by Johnson, Winter & Slattery, December 2020

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

 

by Paul O’Halloran and Michael Russell Colin Biggers & Paisley

Introduction

The High Court of Australia has granted labour hire company WorkPac Pty Ltd special leave to appeal the controversial decision in WorkPac v Rossato in an attempt to correct the confusion around the definition of casual employment.

The High Court has granted a labour hire company special leave to appeal the controversial decision of the Full Court of the Federal Court in WorkPac Pty Ltd v Rossato  [2020] FCAFC 84 (Rossato) which currently represents the legal position on the definition of casual employment in Australia.

What will the High Court be considering in Rossato?

WorkPac submits that the Rossato  decision is of widespread importance because it has the capacity to apply to more than a million employees, in many sectors of the Australian economy, and in doing so alters the legal classification of their employment from casual to permanent, at an enormous cost to the Australian economy of more than $14 billion.

WorkPac will seek to argue before the High Court that Mr Rossato was a genuine casual employee for the purposes of the Fair Work Act 2009 (Cth) and the applicable enterprise agreement that applied to him.

In the alternative, WorkPac seeks an order preventing ‘double-dipping’ by casual employees, allowing the Court to ‘set off’ any leave entitlements owed against the renumeration received which included casual loadings.

The outcome of the High Court is not expected to be delivered until mid 2021.

What is the current legal test?

The current reasoning drawn from Rossato  and an earlier case of WorkPac Pty Ltd v Skene [2018] FCAFC 131 suggests that the “essence of casualness” takes into account the following factors:

  1. The absence of a firm advance commitment as to the duration of an employee’s employment or the days (or hours) of work is the essence of casualness.
  2. The key indicia of casual employment includes irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability.
  3. Payment of casual employees on an hourly basis, will be of less significance in determining the presence/absence of a firm advance commitment, if all the employees are paid on an hourly basis.
  4. Despite mechanisms existing in a contract which contemplate some variability as to the actual hours of work to be allocated to an employee, where an arrangement can be construed as being an offer of continuing work to be performed according to an agreed pattern of full-time hours of work, together with an ambiguous or indefinite contract duration, it is indicative of a “permanent” employment relationship.
  5. Shorter notice is not traditionally consistent with regular or permanent employment.
  6. Contractual machinery, which provides an employee a right to refuse or choose between shifts, or gives an employee an opportunity to provide her or his service in response to a specific demand, is consistent with a casual employment relationship.
  7. The key indicators of a casual arrangement will commonly reflect the fact that, whilst employed, the availability of work for the employee is short-term and not-ongoing and that the employer’s need for further work to be performed by the employee in the future is not reasonably predictable.
  8. Whether an employee is paid a casual loading is a relevant consideration. To effectively identify the loading, contracts of employment should specify which component of the rate of pay is allocated to a casual loading or monies in lieu of paid annual leave. However, these references will not be sufficient, if in reality the employment is for an indefinite duration with stable, regular and predictable work.

What should employers do between now and the outcome of the High Court decision?

Until or unless overruled by the High Court later in 2021, the Rossato  decision represents the current legal position on the definition of casual employment in Australia for the purposes of certain entitlements. The outcome may result in further legislative intervention with both employer and employee groups, with the case emphasising the shortfalls and uncertainties in the current legislative framework for casual workers and their employers.

For now and unless overruled, employers are encouraged to consider at least the following:

  1. Review your casual cohort:  Regularly review your workforce to consider whether any long-term casuals are more appropriately classified as permanent employees. This may mean applying the casual conversion clauses already in modern awards or enterprise agreements.
  2. Educate internal HR and recruitment:  Ensure those responsible for hiring staff within your organisation are aware of the casual employment indicia and the factors that would influence a genuine casual employee morphing into a permanent employee.
  3. Ensure enterprise agreements and contracts are clear about casuals: To reduce the risk of employees claiming they are not casuals, ensure contracts or enterprise agreements include a detailed definition of “casual employee”.
  4. Separately identify the casual loading: Casual loadings should be separately identified in employment contracts and payslips and expressly stated that to be paid in lieu of paid annual leave and other entitlements.
  5. Set-off clauses: Review set-off clauses in contracts to endeavour to ensure they meet the specific needs in this complex area of law to increase the chance that casual loadings can be claimed back in the event of a challenge.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

by Andrew Jose. People + Culture Strategies

Introduction

With Australia transitioning into a recovery phase, there are new areas of the working relationship which employers will need to adjust to in the post-pandemic working environment.

There have been developments in recent weeks which have shed light on new work paradigms which employers need to prepare for.

No jab no work?

Recent developments in the race to create a vaccine for COVID-19 have yielded some promising results, with suggestions that a vaccine may be ready by March 2021.While this is welcome news, it brings up the question of whether in a post-pandemic working environment it would be lawful and reasonable for employers to direct employees to receive the vaccine.

As there is, to date, no vaccine available the closest example we have of similar directions relate to other vaccinations such as the flu. In the health sector, the Victorian Government introduced the Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Act 2020 (Vic), which amends the Victorian health legislation to enable the state government to direct hospitals to require employees and contractors to be vaccinated against specified diseases. Given the nature of work performed in the health industry, with employees and contractors regularly exposed to a myriad of diseases and vulnerable patients, the lawfulness and reasonableness of such a direction is in little doubt. However, outside of this sector there is less clarity around which employees would be required to vaccinated against certain diseases. In a post-pandemic work environment it is certainly conceivable that the potential ramifications of COVID-19 outbreaks in a workplace make a direction by an employer to receive a COVID-19 vaccination more reasonable.

There is a case that is due to be heard by the Fair Work Commission (the “FWC“) early next year which will likely shed some light on whether employers, in a post-pandemic working environment, can mandate that employees receive vaccinations where they are not in directly impacted industries such as health. In this case the employer, a childcare provider, put in place a policy requiring employees to have the flu vaccination unless a medical exemption applied. The employee claimed that she had a medical exemption on the basis of her sensitive immune system and that a vaccination could only be given with free and informed consent. The employer rejected the employee’s objections, and two months later she was terminated from her employment.

Even if the FWC rules in favour of a direction to vaccinate, mandatory vaccinations also bring into question concerns around the privacy aspects of such directions. Employers will likely need to be able to access employee medical records to enforce such directions, which touches on areas of privacy law and the rights of employers to access sensitive personal information of employees.

What about working from home?

As social distancing restrictions have eased across Australia, we have seen the gradual return of the majority of businesses to working in the office. At the start of November, NAB’s group executive sent a company-wide email instructing its employees to return to the office, with the objective of having 40% capacity in the following weeks. An NAB executive referred to the need to return to a high-performance culture as part of the direction, stating that “by returning to the office, we want to start again unlocking the benefits of in-person collaboration, such as better innovating for customers, learning from each other, problem-solving together, mentoring and building our high-performance culture

However, the oft-repeated mantra from many people has been that working from home is here to stay, and that there is no returning to “normality” in the post-pandemic working environment. As that same executive stated, “our workplace will continue to be flexible and inclusive, but we expect more colleagues will be able to adopt a hybrid model that enables time spent working from both the office and the home“.

The ACTU has recently released a Working from Home Charter, in a bid to create a guiding framework for unions in negotiating for rights to work from home. The charter sets out the position of Australian unions on how to make working from home arrangements work, including calls for such arrangements to be voluntary and for employers to remain responsible for health and wellbeing during work hours. Notably, it also calls for employees to have a “right to disconnect” outside of work hours.

If the tenets of the Working from Home Charter become the norm in the post-pandemic working environment, it will have a significant impact upon how many organisations are able to operate. Currently, employees do not have a right to work from home, and even where the governments have mandated that employees work from home, there are limitations on what employers are required to provide. As we have noted previously, working from home has a variety of impacts on both employers and employees, and as such requires organisations to talk to their people very openly about these issues.

Key takeaways

  • Employers should to consider their operational needs and whether their current practices and policies are fit for purpose in a post-pandemic working environment.
  • Employers need to have open and frank conversations with their employees about operational needs moving forward.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

By Jerome Doraisamy

Introduction

A coronavirus vaccine is expected by March [2021], and as such, law firms may need to consider — if they aren’t already — whether or not they can or should direct employees to be vaccinated.

In preparing the office for returns to work en masse, one potential option law firms may be thinking about is the looming vaccine for COVID-19, which — according to Health Minister Greg Hunt — should be available to Australians in approximately four months’ time.

Such a directive from legal employers, Swaab partner Michael Byrnes and lawyer Emily Capener told Lawyers Weekly, “is not to be given lightly”.

“While employer directions to those working in high-risk environments, such as health or aged care, to vaccinate against various illnesses are common and generally accepted, the notion of a legal employer doing so is likely to be novel,” the pair said.

“In ordinary circumstances, it is highly unlikely such a direction would be reasonable. It is trite but nevertheless true that these are not ordinary times — the COVID-19 pandemic calls for a number of measures that would not (and should not) be tolerated normally.”

The pair advised — as did three other senior workplace, health and safety lawyers — that law firms will have to deduce whether issuing a mandate for employees to be vaccinated will be lawful and reasonable.

Is it lawful and reasonable?

Assuming a vaccine for COVID-19 is safe and effective, Mr Byrnes and Ms Capener said, it is likely that legal employers will be able to issue a direction for staff to be vaccinated.

“This is in line with the position across employers generally. The rationale will be that the vaccination will be necessary to eliminate or minimise the risk of COVID-19 infection in the workplace to the extent reasonably practicable, consistent with the employer’s WHS obligations (under the Work Health and Safety Act),” they said.

According to Harmers Workplace Lawyers executive counsel and team leader Amy Zhang, who is a four-time winner of Lawyers Weekly awards, law firms — as employers — will arguably have power to issue directions to employees to get the COVID-19 vaccine.

“This means that to the extent that there are health and safety risks that can be removed or mitigated, such as through a vaccine, then, on one view, law firms should mandate actions that will ensure that it minimises such risks to the safety of its workers, in accordance with its common law and statutory safety duties,” she said.

“However, the critical issue will be whether such a direction is lawful and reasonable in the circumstances. This will depend on a variety of considerations, including the nature of the work that is being performed by particular employees, the nature of the clients and other stakeholders, whether employees can work remotely, the advice and requirements of government and medical bodies at the time, how advanced and successful the vaccine is at the particular time and so on.”

Such obligations, Resolution123 founder and principal Carly Stebbing said, include ensuring the health and safety of all employees at work.

“To date, employers have been managing the risk of COVID-19 through a combination of WFH, social distancing and cleaning protocols. Vaccines have not been required to register as a COVID-safe business. If health and safety risks can be managed without the vaccine, I do not think mandating it is lawful and reasonable — especially where, as is the case with all vaccines, there will be associated health risks and some employees may be ineligible,” said Ms Stebbing, a former Lawyers Weekly award winner and six-time finalist.

“I think it is reasonable for an employer to request employees get the vaccine; as to whether they can enforce that request, it will depend on the specific personal circumstances of that employee and whether the employer can provide safe work without it.”

Lander & Rogers partner Aaron Goonrey said it will ultimately be up to each law firm how they proceed, noting there have been “diverging views” from federal politicians as to whether or not vaccines would be mandatory across the community.

Firms will have to balance the lawfulness and reasonableness of mandating a vaccination in the idiosyncratic physical environment of a law office in accordance with obligations to make that office free of preventable diseases, against the risk of claims arising from side effects or defective vaccines, unfair dismissal and discrimination claims.

“One could argue that if appropriate hygiene and safety measures are in place, not requiring compulsory vaccination may be the safer option for employers, assuming that many employees are likely to become vaccinated by their own volition regardless of a workplace policy to this effect,” Mr Goonrey posed.

Ms Zhang said: “Given this is still a relatively untested area, it will be interesting to see the approach of the courts and tribunals as cases make their way through the system.

“Law firms should, at the very least, encourage their staff to get COVID-19 vaccinations so as to discharge their safety obligations, while being mindful of and genuinely consider any medical or other legitimate reasons that may impact on an employee’s ability to comply. Genuine consultation will be key.”

Conscientious objectors

Employers that consider mandating the coronavirus vaccine will have to consider exemptions to such a workplace directive, Mr Goonrey said, such as health, political or religious grounds which may prevent such an injection.

“It is probable that if an employer made it a requirement for employees to be vaccinated that such a direction will end up before a court or tribunal to test the lawfulness and reasonableness of such a direction. The procedure to be vaccinated is a physically intrusive procedure. And, we are not yet aware of the possible side effects, even with an effective vaccine,” he advised.

There is also a large cohort of people, Mr Byrnes and Ms Capener noted, who have a conscientious objection to vaccinations or are part of various “anti-vax” movements.

“There has been talk of raising arguments under various international human rights conventions, the Australian Constitution or even the Magna Carta to oppose vaccination. Arguments of that kind might have a role to play if the government introduces a program of mandatory vaccination but are unlikely to have much (if any) relevance in determining whether a direction from an employer is lawful and reasonable,” they said.

“While the needs of employees with genuine medical or health reasons for not being vaccinated will need to be carefully considered by employers, those with conscientious objections alone will very possibly be given short shrift. They might, in some cases, need to choose between their opposition to vaccination and continued employment — although those employees might, in some cases, be able to argue they should be allowed to work remotely until the COVID-19 situation stabilises after the availability of a widely distributed vaccine.”

It will be critical, the pair argued, that employers be wary of issuing directions to employees that serve to “gratuitously infringe on their private rights”, in light of how critical civil liberties are to individuals and broader society.

“There have been a range of incursions from governments into civil liberties that would, in any time other than a pandemic or war, be considered unacceptable and would, rightly, lead to people rebelling against them,” the pair said.

“It is a balancing act — taking necessary measures to control the pandemic without going beyond what is needed and imposing restrictions that are oppressive but do little to reduce risk.”

Other potential hurdles

As Mr Goonrey pointed out, however, the difficulties employers may face do not end there.

“The protection granted by human rights charters in Queensland, the ACT and Victoria [means that employees in those jurisdictions] could seek protections based on freedom of conscience, religion or belief,” he said.

Furthermore, employers may have to navigate ill suffered by employees who did not want the vaccine and thus are forced to continue working from home, including but not limited to domestic violence and psychological distress, anxiety and depression. On the flip side, there may be employees who are compelled by their firms to be vaccinated so as to return to the office and then suffer side effects, and subsequently opt to hold the law firm accountable, Mr Goonrey suggested.

Continuing on the theme of claims against an employer, he said that there may be litigation brought by employees, such as unfair dismissal and adverse action proceedings, if those workers are non-compliant with a compulsory vaccination policy.

Can WFH and remote working arrangements negate the need for vaccine mandate?

The biggest issue for legal employers moving forward, Ms Stebbing surmised, will be managing the risk of spreading the virus in their workplace.

“If working from home arrangements, social distancing and cleaning alone cannot manage that risk, vaccines must be considered, but whether it can be mandated depends on each employee’s personal circumstances. Work, health and safety risk management is specific to each workplace and consequently advice must be tailored depending on the risk of transmission of the virus,” she said.

More broadly, however, she questions the premise of the question about a vaccine mandate put to her by Lawyers Weekly, and asks whether employees would be expected to return to the office at all.

“Why are employees required to return to the office? If they have been working from home successfully for the past eight months, is a mandated return to the office necessary or reasonable?”

Having employees work remotely, Mr Byrnes and Ms Capener reflected, has been a critical strategy for law firms in minimising the risk of COVID-19 during this year — should employees continue to work in such a manner, the need for an employer direction to be vaccinated may be lessened, if not nullified in some instances.

“If any legal employers operate entirely virtually, with no face-to-face interaction with colleagues or clients then, prima facie, those employers would find it difficult to argue their staff need to have a COVID-19 vaccination. If, however, there is some contact with clients or colleagues, then that argument strengthens substantially,” they hypothesised.

“Remote working might be a solution (consistent with an obligation in some cases to make reasonable adjustments) for employees who can’t be vaccinated for medical or health reasons.”

Mr Goonrey agreed, albeit coming at it from a different angle: “If employees do not wish to be vaccinated and a law firm wants them to return to the office, they may insist on continuing to work from home, particularly as it has already been facilitated by firms.”

The strength of a law firm’s argument to mandate the vaccination, Mr Byrnes and Ms Capener said, may depend on the volume of interaction an employee has with other staff and clients.

“The more interaction, the greater the risk and the stronger the employer’s right to direct the vaccination. Of course, in the rare case where a legal employee works entirely remotely, and never interacts with clients or other staff, then it would be difficult to sustain a direction — the requisite risk does not arise,” they said.

Best practice for leaders

It must be remembered, Mr Byrnes and Ms Capener mused, that directing legal employees to be vaccinated is a “big step” and, ultimately, a reflection of the unusual times we are currently living through.

“Even if the employer forms the view that the circumstances render such a direction lawful and reasonable, managing partners and team leaders should treat it as a ‘hearts and minds’ exercise and have effective communication and implementation strategies in place,” they said.

Leaders in firms must take into account all potential circumstantial responses from their employees, Mr Byrnes added.

“The risk for employers is a third category of employees who will refuse vaccination — not employees who can’t for medical reasons, or won’t because they inherently oppose vaccinations, but employees who resent an employer dictating to them they need to be vaccinated,” he said.

“Blunt, insensitive messaging, predicated on an authoritarian ‘you will do as we say’ mentality, is likely to represent an own goal for legal employers.”

Lessons from pandemic-inspired pay cuts

Moreover, Mr Byrnes said the implementation of pay reductions in the wake of the pandemic-inspired economic downturn — “even if it was a necessary step” — was handled rather poorly by some legal employers, at least in the initial stages of the nationwide lockdown period.

Some employers, he noted, “adopted a dictatorial approach” that serviced to destroy goodwill and cultural capital, he recalled.

“The same mistakes should not be repeated,” he posited.

“There should be leadership by example, explanations of why the direction to be vaccinated is necessary to maintain a safe work environment and a mechanism for respectfully dealing with those with medical or health reasons who might not be able to be vaccinated.”

Introduction

The Fair Work Ombudsman has secured $139,800 in penalties in proceedings against the operator of a Brisbane café that partially paid some of its employees in food and drink.

The Federal Circuit Court has imposed a $95,000 penalty against Timi Trading Pty Ltd, which operated Café 63 Chermside at the Westfield Chermside shopping centre.

Directors also penalised

In addition, company director and manager Tien Hoang Le and company manager Minh Vo Duy Nguyen have each been penalised $20,000 for their involvement in all of the contraventions by the company; and Hamish Watson, the owner of the café 63 brand, has been penalised $4,800 for his involvement in one contravention by the company.

Eleven employees at Café 63 Chermside were paid part of their wages in food and drink during two periods between August 2017 and January 2018.

Mr Le and Ms Nguyen were involved in breaches relating to all 11 workers and Mr Watson was involved in breaches relating to six of the workers.

Most visa holders

Most of the affected workers were visa holders, including seven juniors aged under 21, who worked as cooks, kitchen attendants and food and beverage attendants. Fair Work inspectors investigated after receiving underpayment allegations.

Fair Work Ombudsman Sandra Parker said Timi Trading’s conduct breached the provision of the Fair Work Act requiring that employees be paid in money.

“Purporting to pay employees in food and drink is a clear breach of workplace laws and employers can face significant penalties,” Ms Parker said.

“Employers have a lawful responsibility to ensure they understand the lawful minimum wage rates and entitlements that apply to their staff and they must pay those wages and entitlements in full at all times. A range of free resources are available at www.fairwork.gov.au to help employers comply with their obligations to their employees.”

“Businesses should be aware that we are cracking down on the underpayment of vulnerable workers in the fast food, restaurant and café sector as a priority. Any worker with concerns about their pay or entitlements should contact the Fair Work Ombudsman,” Ms Parker said.

Individual Flexibility Agreements

Eight of the 11 employees were paid according to Individual Flexibility Agreements (IFAs) that provided for flat hourly rates and a list of ‘bonuses’ and ‘allowances’ – instead of being paid penalty rates and overtime under the Restaurant Industry Award 2010.

The IFA ‘allowances’ included employees being allowed food and drink for the most part up to the value of $42 per day when working, including $20 in meals, $7 in desserts and $15 in drinks.

Timi Trading’s conduct also breached workplace laws by failing to ensure the IFAs passed the better-off-overall test (which requires employers to ensure employees are better off overall under an IFA than under the relevant Award) and failing to detail in the IFAs how each individual was better off overall under the IFA.

False and misleading records

Timi Trading also breached workplace laws by providing the FWO with false and misleading records, failing to make and keep proper records and failing to enter into written part-time agreements.

Introduction

Disability Services Australia (DSA) has entered into an Enforceable Undertaking (EU) with the Fair Work Ombudsman and is back-paying employees more than $1.6 million.

The not-for-profit organisation, which provides services to disabled clients throughout NSW and operates a packaging factory at Mascot in Sydney, self-reported underpayments to the FWO in 2019.

Prompted by an employee query

After being prompted by an employee query, DSA became aware employees at the Mascot site were being provided with gift vouchers in lieu of overtime payments on Sundays, in contravention of workplace laws.

DSA subsequently commissioned an independent investigation of its compliance with workplace relations laws, which identified a range of non-compliance issues affecting supervisors and production staff at the Mascot site and workers in disability support and caring roles located at various locations throughout Sydney and in regional locations such as the Hunter and Southern Highlands regions.

Issues found by the independent investigator

Issues included incorrect use of time-off in lieu of overtime and penalty rates, underpayment of minimum wage rates, incorrect application of on-call and sleepover provisions, and underpayment of annual leave loading and allowances.

To date, the assessment has found that a total of more than 800 DSA employees were underpaid more than $1.6 million between 2013 and 2020. Individual underpayments range from $2 to over $100,000. The underpaid employees are not workers with disabilities.

Key factors causing the underpayments included inadequate governance and processes for ensuring compliance, annualised salaries being too low to meet all entitlements such as overtime and penalty rates, and some employees being incorrectly classified as being award free.

Further underpayments, expected to be significant in size, are yet to be quantified.

Other businesses caught in the net

In addition, underpayments totalling less than $50,000 have been identified at two other businesses operated by DSA – Macquarie Employment Training Services, a registered training organisation, and DSA Mentoring Services, which provides services to facilitate transition to the community for people with complex support needs. Both businesses are also covered by the EU.

The EU requires DSA, Macquarie Employment Training Services and DSA Mentoring Services to pay amounts owing to every affected employee, plus interest and superannuation, by March 2021.

Cooperation helps

Fair Work Ombudsman Sandra Parker said an EU was an appropriate outcome as DSA had cooperated with the regulator and demonstrated a strong commitment to rectifying underpayments.

“Under the Enforceable Undertaking, DSA has committed to stringent ongoing measures to ensure it complies with the law and protects its workforce. This includes engaging, at its own cost, an expert auditing firm to check its workplace compliance for the next two years, and report back to the FWO,” Ms Parker said.

“This matter serves as a warning to all public and private sector employers that if you don’t prioritise workplace compliance, you risk underpaying staff on a large scale. Any employers who need help meeting their lawful workplace obligations should contact us for free advice.”

Under the EU, DSA must also fund an independent organisation to operate a Hotline for employees to seek assistance on payroll or related queries; apologise to its employees; and display online, workplace and social media notices detailing its contraventions. Given the community services role of the not-for-profit organisation, the FWO did not consider a contrition payment to the Commonwealth was in the public interest.

Introduction

The Fair Work Ombudsman has secured its first penalties under the ‘serious contraventions’ provisions of the Protecting Vulnerable Workers laws, after a former Han’s Café franchisee in Perth underpaid vulnerable workers despite having previously faced Court for similar conduct.

Federal Circuit Court orders $191,000 penalty

The Federal Circuit Court has ordered Tac Pham Pty Ltd, the former franchisee of the Han’s Café Rockingham outlet, to pay penalties of $191,646. The former general manager of the outlet, Cuc Thi Thu Pham, has been ordered to pay $38,394.

The company and Ms Pham breached pay slip laws and underpaid 11 employees – including a number of young and migrant workers – a total of $5,111 between October 2017 and April 2018. The employees were back-paid only after the Fair Work Ombudsman commenced its latest investigation.

“Serious contraventions”

Three of the contraventions – relating to failures to provide required information within pay slips and underpayment of both adult and junior minimum wages – met the definition of ‘serious contraventions’ under the Protecting Vulnerable Laws because of the repeat offending.

Of the total penalties ordered, 80 per cent related to these serious contraventions.

Could have been $630,000

Under the laws, which came into effect in September 2017, the maximum penalties for serious contraventions are $630,000 per breach for a company and $126,000 for an individual, 10-times the penalties which would ordinarily apply.

Fair Work Ombudsman Sandra Parker said the new judgment highlighted the value of the serious contraventions powers in providing a significant deterrent for employers doing the wrong thing.

“We will continue to make full use of the Protecting Vulnerable Workers laws to ensure that any individuals or companies who commit serious contraventions are held to account and understand the consequences of their failures,” Ms Parker said.

There are currently three other unrelated matters before the courts nationally in which the FWO has alleged the increased maximum penalties should apply.

Repeat offending not on

“Repeat offending is simply unacceptable. Employers should also be aware that we treat cases involving underpayment of young and migrant workers particularly seriously, because we are conscious that they can be vulnerable due to factors such as a lack of awareness of their entitlements and a reluctance to complain. Any workers with concerns should contact us,” Ms Parker said.

This legal action came after the Fair Work Ombudsman secured total penalties of $45,000 in Court against Tac Pham Pty Ltd and Ms Pham in March 2018, relating to pay slip laws being breached and 22 staff being underpaid $27,920 at the Rockingham café between December 2014 and December 2015.

FWO Inspectors

FWO Inspectors discovered the breaches in this latest litigation when they investigated the business during auditing activities. The breaches in the latest litigation related to underpayment of ordinary minimum hourly rates, penalty rates, minimum shift-pay and an allowance, and regular failures to provide pay slips and to provide lawfully required information within pay slips when they were issued.

In this latest litigation the respondents admitted liability, including to the serious contraventions.

Judge commends FWO inspectors

Judge Christopher Kendall said the latest litigation revealed the extent of the non-compliance by the respondents had increased, despite commitments from Ms Pham during the earlier court proceedings to improve her payroll practices.

“The respondents had no intention of changing their conduct and would have continued as they had been if the [Fair Work Ombudsman] had not intervened when it did. The fact that the respondents did not take steps to engage an external [payroll] consultant for over one year after they had said they would do so and only in response to the [FWO]’s investigation is, again, entirely unsatisfactory,” Judge Kendall said.

“Importantly, the respondents failed to comply with the most basic obligations owed to employees. Their conduct reflects a cavalier and entirely unacceptable approach to core legal obligations.”

“Some employees were more vulnerable than others and in an industry which has a high number of junior employees, the need to ensure that the rights and entitlements of those more vulnerable are met is particularly high. Employers must be deterred from engaging in similar conduct,” His Honour said.

Introduction

A major national medical centre operator, Idameneo (No 123) Pty Ltd, has back-paid employees $15.3 million and entered into an Enforceable Undertaking (EU) with the Fair Work Ombudsman (FWO).

Idameneo (No 123) Pty Ltd has provided medical centre management services through its 69 medical centres and 13 GP practices under the brand names of parent company Healius Limited, which include ‘Primary Dental’ and ‘Primary Health Care’.

Company self-reported

Healius reported to the FWO in late 2018 that Idameneo (No 123) had underpaid more than 5,000 current and former employees over $12.3 million after failing to meet rates owed under either the Health Professionals and Support Services Award 2010 or the Nurses Award 2010.

Incorrectly classifying workers

Workplace law breaches included assigning an incorrect classification or pay point to some employees, applying an annualised salary rate for salaried employees which did not meet award entitlements, not paying all additional hours worked by waged and salaried employees, and other payroll system errors.

This led to widespread underpayments of award entitlements including minimum weekly wages, casual loading, various allowances, overtime and penalty rates for weekend and public holiday work.

As at April this year, Idameneo (No 123) had identified and back-paid 4,018 employees just over $14 million, which includes interest, for underpayments that occurred between July 2011 and November 2018. The company has also paid additional superannuation contributions.

Underpaid employees include nurses, administrative staff, doctors, dentists and scientists. Individual back-payments range from $1.51 to $131,336.

Looking for 1,300 other workers who are owed money

A further 1,341 employees who are owed $880,000, including interest, have not yet been found. Under the EU, these underpayments must be rectified within 90 days of the EU’s signing, or be paid into the Commonwealth’s Consolidated Revenue Fund 30 days after workers have not been able to be located. The monies will be distributed to the employees as they are found by the FWO.

Fair Work Ombudsman Sandra Parker said an Enforceable Undertaking was appropriate as the employer had self-reported and cooperated with the FWO’s investigation.

“Under the Enforceable Undertaking, Idameneo (No 123) has committed to stringent measures to comply with the law and protect its current and future workforce. This includes at Idameneo’s cost, an independent assessment of its rectification program by a qualified expert and three future independent reviews of its compliance,” Ms Parker said.

“This matter serves as a warning to all employers that if you don’t prioritise workplace compliance, you risk underpaying your staff on a large scale. Any employers who need help meeting their workplace obligations should contact the Fair Work Ombudsman for free advice.”

$400,000 fine imposed

The Enforceable Undertaking commits Idameneo (No 123) to make a contrition payment of $400,000 to the Commonwealth’s Consolidated Revenue Fund.

The EU requires Idameneo to pay for an independent expert to conduct a review of the underpayments with the findings reported directly to the FWO. Any further underpayments that are identified must be back-paid promptly.

Idameneo will continue its dedicated telephone hotline and email service to help its employees with any pay and entitlements concerns for the next 12 months.

Introduction

The National Library of Australia has entered into an Enforceable Undertaking (EU) with the Fair Work Ombudsman after underpaying employees almost $250,000 in wages and superannuation.

The public Commonwealth entity, based in Canberra, self-reported to the Fair Work Ombudsman earlier this year that it had failed to pay casual employees the correct weekend and public holiday penalty rates they were entitled to under the applicable Enterprise Agreements.

During an internal payroll audit, the National Library identified that it had misunderstood its obligations under the Agreements in failing to pay penalty rates to its casual employees over two decades.

Casual employees and overtime rates

The underpaid casual employees were library assistants who, among other things, offered assistance to the general public in the reading rooms of the National Library on weekends and public holidays.

In total, the National Library underpaid 106 current and former employees a total of $245,359 in wages and superannuation between 2000 and April 2020. Individual underpayments range from $12 to $19,997, with 11 employees underpaid $5000 or more.

More than half of the underpayments have been rectified and the EU requires the National Library to pay amounts owing to every affected employee within the next three months. The National Library is also required to pay additional interest on all back-payments.

Cooperation helps

Fair Work Ombudsman Sandra Parker said that an EU was an appropriate enforcement outcome as the National Library of Australia had cooperated with the investigation and demonstrated a strong commitment to rectifying all underpayments.

“Under the Enforceable Undertaking, this entity has committed to stringent measures to comply with the law and protect its workforce. This includes engaging, at its own cost, an expert auditing firm to audit its compliance with workplace laws,” Ms Parker said.

“This matter serves as a warning to all public and private sector employers that if you don’t prioritise workplace compliance, you risk underpaying staff on a large scale. Any employers who need help meeting their lawful workplace obligations should contact the Fair Work Ombudsman for free advice.”

Going beyond the statute of limitations

The National Library is also required by the EU to display an online notice detailing its workplace law breaches, apologise to workers, commission workplace relations changes for managerial staff and provide evidence to the Fair Work Ombudsman that it has developed systems and processes for ensuring compliance in future.

The National Library’s co-operation in rectifying its non-compliance issues, including making back-payments that occurred well beyond the statute of limitations, and implementing measures to ensure future compliance were key factors in determining that it should not be required to make a contrition payment.