Article by HR Advance
2020 was a year with many workplace relations issues and it looks like 2021 will be no different. Our workplace advice team delve into some the issues you may run into over the next 12 months.
COVID-19 vaccine: no jab, no job?
On current progress, it looks very likely that vaccines for COVID-19 will become widely available sometime in 2021. Many employers currently have a policy regarding flu vaccinations for employees, but in many cases having it is optional. Arguably the risk of harm to other employees or the community generally is greater with COVID-19 than with the flu, so there is likely to be a greater degree of compulsion in the decisions made.
Employers will have to deal with each of the following issues:
- To ensure a safe workplace, should it be compulsory for employees to be vaccinated?
- If so, should employers arrange and pay (the latter if required) for vaccinations, or leave it to employees to arrange?
- What if some employees refuse to be vaccinated?
- What COVID-safe precautions at the workplace will employers have to continue to take?
- Changes to Fair Work Act on the way?
Last month saw the federal government announce various proposed changes to the Fair Work Act 2009. The changes have been predictably controversial and it is uncertain whether they will make it through Parliament, at least in their current form. However, negotiations and debate will continue during 2021 and employers need to keep up to date with developments and evaluate the implications for their own businesses.
A summary of the proposed changes affecting the following areas are:
- Part-time employees in the accommodation, food and retail industries will be guaranteed a minimum 16 hours per week, but if they do extra shifts they will not receive overtime pay.
- Casual employees who work regular shifts for at least 12 months will gain a right to apply for conversion to permanent employment (some of them already have something similar). However, the Fair Work Commission will not be able to force employers to convert them. Businesses that use casual employees will need to make their plans with these provisions in mind, for example to foresee the possibility that casual employees may eventually become permanent. Also, the government is again attempting to reverse some recent decisions that held that long-term casual employees were entitled to payments for leave as well as their casual loading. To do so, it proposes changing the definition of a “casual employee”.
- As part of an attempt to revive enterprise bargaining, employers may be able to bypass the Better Off Overall Test (BOOT) for enterprise agreements for up to two years if they can prove there are circumstances adversely affecting their business (including COVID-19-related impacts) and employees agree to the proposal. This appears to be the most controversial of the proposals, so probably the one least likely to happen.
Increased penalties for deliberate underpayment of wages
One change that is definitely going ahead, however, is that the Fair Work Commission will be reviewing pay rates in the awards covering the club, retail, restaurant and hospitality industries. The aim is to examine the feasibility of trading off penalty rates in exchange for higher base pay rates.
Plan for the end of JobKeeper
The government still intends to end the JobKeeper assistance scheme on 28 March 2021, now less than three months away. This means businesses will be expected to return employees to their pre-COVID-19 arrangements of one year earlier. Employers need to assess whether and how they are able to do this, plan accordingly and maintain communication with employees.
Other ongoing challenges
The above issues can be described as “unique to 2021”. However, there are also several other ongoing HR/employment challenges that will continue to require attention this year:
- Working from home. A lot of people had their questions about working from home arrangements answered one way or the other when such arrangements had to be made last year. There will be pressure from many employees to make working-from-home arrangements permanent, or at least to work out a suitable compromise that combines both working in an office and working from home.
- The so-called “gig economy”, which will continue to be a battle between attempts to regulate employment in it to ensure workers are fairly remunerated, and attempts by some operators to cut costs by operating outside the law. This battle has implications for those that have to compete with “gig economy” businesses.
- Diversity, inclusion and equal opportunity will continue to be prominent issues regardless of the prevailing economic climate. Businesses that fail to take them seriously may suffer for it, eg “shaming” on social media and perhaps loss of access to public sector contracts.
- Legal compliance and regulation will become more, rather than less complex. The proposal above to increase sanctions for underpayment of wages is one example, and a reminder to businesses to ensure that their payroll management systems remain fully compliant.
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