While schools are still coping with the on-again-off-again nature of working remotely and working face-to-face, there has been a plethora of changes in employment and work, health and safety law to further test agility, tolerance and resilience. Bring on the summer holidays! But in the meantime…
Casual employment: the Fair Work Act was amended to clarify the definition of casual employment, provide a pathway for casual employees to become permanent employees via either a request by the employee or an offer by the employer, and require a casual employee to be provided with a Casual Employment Information Statement when they commence employment.
Implementing parental leave changes: while the legislation came into force in November 2020, the real impact of flexible parental leave (11 months continuous unpaid parental leave and 30 days which can be taken over the space of two years) will only have become evident this year. The effects of the extension of the entitlement to unpaid parental leave where parents are sharing the primary caregiver role will also be felt this year. This entitles each parent to 12 months unpaid parental leave, so an overall a total of 24 months, rather than the previous combined total of 12 months.
Wage theft: from 1 July 2021, it became a criminal offence in Victoria for an employer to deliberately and dishonestly underpay employees or withhold wages, superannuation or other employee entitlement, falsify employee entitlement records or avoid keeping those records to gain a financial advantage. Fines of over $1 million or gaol terms of up to 10 years may apply. Similar legislation was introduced into the New South Wales Parliament but has not progressed. Note that the substance of wage theft legislation is already included in the Fair Work Act.
COVID-19 vaccinations: undoubtedly the most contentious change of 2021 is requiring employees to have COVID-19 vaccinations, whether the mandate is due to a public health order (such as in NSW and Victoria and soon in South Australia and Western Australia) or by a decision of an employer. This has raised issues regarding the application of the federal Privacy Act to the collection of employee records (previously thought to be exempt as part of the “employee record exemption”), what is a “reasonable and lawful direction” and what to do in relation to an employee who refuses to become vaccinated. A number of cases before the Fair Work Commission and various state courts will hopefully provide consistent guidance on these issues in the near future.
Stop sexual harassment orders: from 11 November 2021, an employee may apply to the Fair Work Commission to make orders to stop sexual harassment in their workplace. This is similar to the stop bullying orders.
Sex-based harassment: while this sounds new, it is actually a clarification in the federal Sex Discrimination Act. Sanctions will apply when a person or persons is being harassed on the basis of their sex.
Harassment: the Sex Discrimination Act was amended to extend the liability of employers where an employee is being harassed (sexual harassment as well as sex-based harassment) to ensure that they are not accessories to those unlawful acts. This liability applies where a person “causes, instructs, induces, aids or permits” another person to harass another. This would apply to an employer not taking steps to stop or prevent harassment, for example, by an employee against another employee, or a third party harassing an employee. This liability previously only applied to acts of sexual discrimination.
Compassionate leave: the Fair Work Act has been amended to provide compassionate leave (two days paid leave for permanent employees and two days unpaid leave for casual employees) where the employee and their partner experience miscarriage or stillbirth.
Superannuation (SGC and super-stapling): the superannuation guarantee contribution amount increased to 10 per cent from 1 July 2021. From 1 November 2021, a new employee who does not nominate a super fund will have their super paid into their previous superannuation account (the fund is “stapled” to the employee) unless the employee chooses to have the funds placed into another fund.
WHS/OHS/OSH Changes During 2021
Industrial/workplace manslaughter legislation: this is now in force in Victoria, the Australian Capital Territory, Queensland, and the Northern Territory. A workplace manslaughter offence will be introduced in WA with the new WHS laws in January 2022. A bill to implement industrial manslaughter in NSW is currently in the Upper House, although it was introduced by the opposition which is likely to affect its chances of success.
WHS for WA: WA is preparing to move to the national harmonised WHS system (in January 2022). This is a monumental milestone, many years in the making, as WA will join NSW, Queensland, SA, Tasmania, the ACT and NT.
Greater emphasis on mental health in the workplace: WorkSafe Victoria has introduced its first Mental Health Strategy 2021-2024 to prevent workplace mental injuries and to better protect workers with a mental injury, with education and training being one of the top three priority industry segments. The new WA WHS Act specifically includes physical AND psychological health and safety in its new WHS Act.
COVID-19 masks and vaccinations: while mask wearing caused some not inconsiderable concerns in the workplace, vaccinations have become the biggest and most contentious issue of 2021, with numerous cases across Australia challenging the right of governments and employers to require employees to be vaccinated as a condition of returning to work.
This has been another year of enormous and unsettling changes, and schools don’t need to be told that they must stay alert to both the compliance aspects of employment and workplace health and safety, as well as looking after their most valuable asset – their staff.
And on a more practical note – keep very, very good records.