Need help responding to Fair Work Act changes and COVID in the workplace?
By Gabrielle Stannus
1. The Fair Work Commission has recently amended the Fair Work Act 2009 providing eligible casual employees with the opportunity to convert to full- or part-time employment (Image: Fair Work Commission)
Staying up to date with employment and workplace healthy and safety legislation can be challenging for both employers and employees, especially during the COVID-19 pandemic. We spoke with Sarah Cappello and Jessica Baldwin from Hunt & Hunt Lawyers about amendments to the Fair Work Act 2009 affecting workers’ wages and entitlements, and recent legal decisions regarding mandatory wearing of face masks and vaccinations in the workplace.
Casual employees’ conversion offer
The Fair Work Act 2009 was amended in March this year to include a Casual Employment Information Statement, definition of casual employment, and a pathway for casual employees to become permanent full-time or part-time employees.
According to the Fair Work Commission, a person is a casual employee if they accept a job offer from an employer knowing that there is no firm advance commitment to ongoing work with an agreed pattern of work. Once employed as a casual, an employee will continue to be a casual employee until they become a permanent employee through:
Casual conversion, or
Being offered and accepting full-time or part-time employment, or
They stop being employed by the employer.
“For example, a casual retail worker might have a shift on Monday, but then not have another shift for a couple of weeks,” says Sarah Cappello, Partner of Hunt & Hunt Lawyers’ Employment & Workplace Relations team, “The employer has no obligation to give casual employees ongoing shifts. Technically there is no requirement to formally terminate casuals because there is no advance commitment to provide work, however, we do often recommend, from a practical perspective, that the proper process is followed to avoid any disputes.”
Casual employees who have worked for their employer for twelve months now need to be offered the option to convert to full-time or part-time (permanent) employment by their employer. Certain eligibility requirements need to be met for this to occur.
Employers (except small business employers with fewer than 15 employees) need to make a written offer to convert their casual employee to permanent employment within 21 days after the employee’s 12-month anniversary, if the employee:
Has been employed by the employer for 12 months
Has worked a regular pattern of hours on an ongoing basis for at least the last six months
Could continue working these hours as a full-time or part-time employee without significant changes
2. Sarah Cappello from Hunt & Hunt Lawyers encourages all businesses to diarise their employees’ work anniversaries to ensure that any opportunities for casual conversion are not overlooked, which could otherwise result in a penalty under the Fair Work Act 2009 (Image: Hunt & Hunt Lawyers)
Casual employees do not have to accept the offer to convert to part- or full-time permanent employment.
“We have had quite a few employers tell us that some of their employees do not want to be converted when they have made an offer,” says Sarah, “The employee said, ‘No thanks, I would rather have the additional loading’.”
The new casual conversion entitlement is now part of the National Employment Standards. Contraventions of these standards may result in penalties greater than $13,000 (for an individual) or $66,000 (for a company).
If an employer has new employees start, and the employees do not choose a super fund, the employer may now have to request their new employees 'stapled super fund' details from the Australian Taxation Office. A stapled super fund is an existing super account which is linked, or 'stapled', to an individual employee so that it follows them as they change jobs.
The change aims to stop new super accounts from being opened every time an employee starts a new job.
“This change helps employees avoid having multiple superannuation funds which can become lost,” says Sarah.
COVID-19 in the workplace
Aside from dealing with changes to worker’s wages and entitlements, many businesses are increasingly concerned about how to deal with employees who refuse to wear face masks and/or vaccinate against COVID-19.
“State public health orders are changing every day in terms of COVID-19,” says Jessica Baldwin, Senior Associate in the Hunt & Hunt Lawyers’ Environment & Planning team, “Public health orders are the bare minimum that you must comply with to avoid a fine. However, that might not necessarily be meeting your workplace health and safety (WHS) requirements in providing a safe workplace for your employees.”
3. Jessica Baldwin from Hunt & Hunt Lawyers says that businesses may need to do more than simply comply with COVID-19 public health orders to meet their workplace health and safety (WHS) requirements to provide a safe workplace (Image: Hunt & Hunt Lawyers)
Sarah says that many nurseries are relatively low-risk environments given their open-air spaces facilitate social distancing. However, she claims that businesses could still potentially expose themselves to worker’s compensation claims or work health and safety breaches if they fail to adequately address COVID-19 safety in the workplace.
“We will see an increase in the number of COVID-19 cases occurring as people return to their workplaces. You might have people in your workplace who have underlying health issues, who, if exposed to COVID-19 could become seriously ill or die,” claims Sarah, “If one of your employees is high risk, then maybe you should allow them to work from home. If they cannot work from home, you may require them to wear a mask in the workplace.”
Sarah says that whilst not all industries are required by existing legislation to ensure their employees wear face masks, individual workplaces can mandate their wearing.
“We have had instructions recently to act for an employer in an anti-discrimination matter. One of their employees was refusing to wear a mask because he had a medical exemption,” says Sarah, “Even though the employee had a medical exemption not to wear a mask, the wearing of face masks was a condition of the site that he worked at as a guard. It did not relate to the employer’s site; it was somebody else's site. The employer had to suspend the guard because he refused to comply with this direction and could not perform the inherent requirements of his role.”
“We are seeing some decisions come through in the Fair Work Commission now relating to COVID-19 matters,” adds Sarah, “Whilst there have not been any determinations regarding COVID-19 vaccinations yet, there have been some decisions about flu vaccinations in which the members have talked about COVID.”
On 27 September 2021, the Full Bench upheld the dismissal of an employee who refused to get vaccinated. In Jennifer Kimber v Sapphire Coast Community Aged Care  FWCFB the majority held that the employee’s refusal to get vaccinated against the flu rendered her unable to perform the inherent requirements of her role and constituted a valid reason for her dismissal1.
One of Hunt & Hunt’s clients, a disability services provider, recently had to terminate the employment of five of their fifty staff because they refused to be vaccinated.
“They had no choice because a public health order made it compulsory for disability service providers to be vaccinated,” explains Sarah, “This employer was devastated because these people had worked there for 15 to 20 years. However, disability services are a high-risk environment.”
“Overwhelmingly, I believe that the Court will enforce mandatory vaccination policies and directions because that is what they have done so far and indicated they would,” says Sarah.
4. (Image: Hunt & Hunt Lawyers)
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Sarah and Jessica encourage all employers to ensure that they are up to date with changes to employment and workplace health and safety legislation potentially affecting their business.
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