We expect that most of us woke up on the 1st of January hoping that the challenges of 2020 were firmly in the rear-view mirror. We remain optimistic that the worst of the 2020 challenges, particularly the impact of coronavirus, will ease as we move through 2021 with the rollout of vaccinations locally and across the world.
However, the vaccine rollout will bring its own employment challenges. A hot topic for employment in 2021 will be if employers can require employees to be vaccinated for COVID-19 as a condition of their ongoing employment. We can report that the commentators so far are in furious agreement on the answer to this question. Unfortunately, the answer they agree on is “maybe”? As a Workplace Health and Safety issue it is most likely that the risks will vary between industries and workplaces, with our prediction being that there will be no definitive answer to this question.
A very recent case in the Fair Work Commission has opened the door on challenging vaccines being required by employers. An employee in the Aged Care industry is challenging being required to have a flu vaccination to be able to work, even though her work was in client homes providing care and not in residential aged care. Flu vaccinations were at the time mandated for employees working in residential aged care facilities. Although this case will not provide a definitive answer to questions around compulsory Coronavirus vaccinations, it is likely to provide some guidance on the considerations for employers in determining if a direction to their employees to be vaccinated for COVID-19 (or any other vaccine) is both lawful and reasonable.
As we approach the end of January 2021, we creep towards what may be another hot topic for employment in 2021, which parts of the Industrial Relations Omnibus Bill, which was tabled in Federal Parliament in late 2020, will make it into law? Parliament returns in February 2021 and this hot topic appears to be high on the agenda for debate, with a Parliamentary committee due to report in March 2021. The parts of the Bill which will have the most impact on employment generally are resolving the definition of who is actually a casual employee, what the employer obligations for converting casual employees to permanent employees will be, making enterprise bargaining easier to navigate and ensuring a more flexible application of the better off over all test (BOOT) for assessing enterprise bargaining agreements.
Furthermore, 2021 could also see the criminalisation of wage underpayments, with those found responsible for having dishonestly engaged in a systematic pattern of underpayment, to one or more employees, with intentional dishonesty and systematic conduct, could face a jail term of up to 4 years, disqualification from managing corporations and significant financial penalties. However, even in cases of unintentional underpayments the current penalty regime is expected to increase by an additional 50% on top of each existing penalty.
2021, not unlike 2020, has some changes and challenges in store for employers and employees. We will continue to monitor developments in these and any other hot topics that may arise and keep you informed.
If you have any employment related questions we are here to assist. Please contact Cheryl-Anne Laird, our HR Consulting Partner on +61 7 3218 3014 or email Cheryl-Anne.Laird@mazars.com.au, alternatively contact your usual consultant via phone or the form below.
All rights reserved. This publication in whole or in part may not be reproduced, distributed or used in any manner whatsoever without the express prior and written consent of the Mazars, except for the use of brief quotations in the press, in social media or in another communication tool, as long as Mazars and the source of the publication are duly mentioned. In all cases, Mazars’ intellectual property rights are protected and the Mazars Group shall not be liable for any use of this publication by third parties, either with or without Mazars’ prior authorisation. Also please note that this publication is intended to provide a general summary and should not be relied upon as a substitute for personal advice. Content is accurate as at the date published.