2021’s Hot Workplace Relations Issues

2021’s Hot Workplace Relations Issues

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.

Other issues

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.

Feeling Overwhelmed

Our workplace advice team can help you with expert advice and solution for all things HR, workplace, and industrial Relations. Whether you are onboarding new employees, managing performance, or monitoring compliance, we have professional phone advice, wage guides, and employee documents.

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Can you direct your employees to get vaccinated?

Can you direct your employees to get vaccinated?

Article by Nigel Ward & Luis Izzo (ABLA)

As anticipation builds for the arrival of COVID-19 vaccines in Australia, employers are starting to query whether they can direct their employees to be vaccinated.

So, surely you can make all your employees get vaccinated?

The simple answer is likely to be “not generally” (although this is yet to be tested in Courts).

However, for some employers dealing with vulnerable people, the answer is more likely to be “yes” for most of their employees.

Whilst the principles that Courts will apply to resolving this question are well settled, unfortunately, the lack of available scientific data about the effect of the COVID-19 vaccines means that the ability to direct employees to take the vaccine remains both uncertain and subject to an employer’s particular operating environment. The clarity regarding the answer to this question may evolve as we learn more about the clinical effect of the vaccine in the coming year.

Refresher: When can an employer issue directions to employees?

Australian contract law has for decades recognised that employers have a right to issue directions to employees, provided the directions are lawful and reasonable.

Whether a direction is lawful will often be determined by ensuring the direction does not breach any terms of an employment contract, industrial instrument or other employment law.

Whether a direction is reasonable is a question of fact to be determined in the circumstances of each case and will consider a range of factors including the nature of the employment, established custom and practice in the workplace, trade or industry practice, the terms of relevant industrial instruments and contracts and the impact of the direction on employees and the employer’s operations as a whole.

Courts and tribunals have recognised an employer’s ability to issue directions if they are necessary to comply with the employer’s obligations under occupational health and safety laws.

The primary argument an employer is going to rely upon with respect to the vaccine is that to meet their general obligations to ensure, as far as reasonably practicable, the health and safety of workers, workers need to get vaccinated to protect those in the workplace.

Sounds fairly simple but it is not!

What do the COVID-19 vaccines do?

To successfully establish a right to direct employees to take a COVID-19 vaccine, a good understanding of what these vaccines do is required.

The vaccines help prevent most employees from contracting the COVID-19 disease

At this stage, it appears very likely that the vaccines will help reduce the probability that employees will contract the disease known as COVID-19.

This is because both the Pfizer and Moderna vaccines have reported that their efficacy in preventing disease symptoms amongst trial participants was over 90%[1], whilst the Astra-Zeneca vaccine’s efficacy rate was around 70%[2].

However, for some minority groups, there is no data on the vaccine impact. We discuss this further below.

It is not known whether the vaccines stop the transmission of SARS-CoV-2 (the virus)

Although the vaccines help individual employees from contracting the COVID-19 disease, whether the vaccines stop the transmission of the virus known as SARS-CoV-2 is a different question altogether.

The US Food and Drug Administration (FDA) calls this out on its public FAQ regarding the vaccines:

Most vaccines that protect from viral illnesses also reduce transmission of the virus that causes the disease by those who are vaccinated. While it is hoped this will be the case, the scientific community does not yet know if the Pfizer-BioNTech COVID-19 Vaccine will reduce such transmission[3]

The same point has been acknowledged by the WHO[4].

The reason these details are unknown is that the Pfizer, Moderna and Astra Zeneca trials have only tracked the ability of the vaccines to reduce COVID-19 symptoms when a person is infected. They have not studied whether the vaccines prevent transmission of the virus.

Prominent Australian vaccine and immunology experts from both RMIT and UQ have identified that it remains entirely possible for vaccinated individuals to be exposed to the virus, carry it and transmit the virus to others, without having contracted the COVID-19 disease[5] themselves.

These experts have, however, speculated that taking a vaccine “should also hopefully be reducing viral load in people” and therefore reduce their likelihood of shedding the virus and infecting someone else[6].

However, the impact of the vaccine on infection rates is simply unknown.

For some groups, there is no evidence of the effect of the vaccine

Some minority groups were not part of the COVID-19 vaccine trials at all. By way of example, pregnant women were not included in the trials, meaning there is no data on the impact of the vaccine on this group. There is also no data on the impact of the vaccine on breastfeeding or infants being breastfed by vaccinated mothers.

What can presently be proven in any employment dispute?

The effect of the above is that an employer:

  • should be able to prove to a Court that the vaccine will help to prevent individual employees from contracting COVID-19 if they are exposed to SARS-CoV-2, save for those groups that were not included in the vaccine trials (eg. pregnant women); but
  • cannot presently establish that the vaccine will prevent or reduce transmission of the SARS-CoV-2 virus in the workplace. There is simply a prospect that the vaccine should or might have this effect.

So, can employers issue a direction to an employee for them to take the vaccine?

The mere individual health benefit of a vaccine to employees is unlikely to form a sufficient basis to direct the employees to take the vaccine.

Such a direction would be no different to directing employees not to smoke on breaks or not to drink excessively or take recreational drugs at home, where there is no discernible impact upon the workplace. None of these directions could ordinarily be made under existing workplace laws.

To establish a reasonable basis to direct the taking of a vaccine, employers would need to demonstrate there is a real prospect of safety benefit to others who come into contact with the workplace, whether that be other workers or customers.

The deficiencies in the existing scientific data mean that there is a real question mark over the legitimacy of directing employees to take a vaccine in many industries.

What about industries exposed to vulnerable persons?

The scenario is likely to be different in industries exposed to vulnerable persons such as aged care, health services or services for persons with disabilities.

The significantly higher risks that such vulnerable persons become exposed to if they come into contact with SARS-CoV-2 is likely to justify a more cautious approach by employers and will generate greater concern from judicial officers.

It is more likely that Courts and Tribunals would consider the direction to take a vaccine to be lawful and reasonable where the direction is being made to protect vulnerable persons, even where the probability of the vaccine reducing infection rates is uncertain (as is the case at present).

Members can contact the workplace relations team on 1300 391 426 if you think you are in this category as we will need to ensure you receive specific advice tailored to the facts of your situation.

What about employees who can’t take a vaccine?

Some employees may be unable or unwilling to take a vaccine because of the higher risks associated with the vaccine being dispensed to them or because of their religious beliefs (eg. employees with disabilities/elderly employees or some employees of some religions that do not permit vaccination).

Imposing a requirement on these employees to take a vaccine may result in employers engaging in ‘indirect discrimination’ in breach of the Age Discrimination Act 2004, the Disability Discrimination Act 1992 or the Race Discrimination Act 1975. Whether unlawful indirect discrimination arises will particularly depend on:

  • whether groups of people with an employee’s particular attributes are less able to comply with the requirement imposed by the employer than the broader population; and
  • whether the requirement imposed is reasonable in the circumstances.

Before disciplining any employee in this category, employers should seek legal advice specific to their circumstances.

As highlighted previously, certain groups of people were not involved in the fast-tracked clinical trials. For instance, we understand pregnant women were not involved in the clinical trials.

Accordingly, despite anything else, some groups may have a legitimate basis for declining the vaccine irrespective of the work environment they are in.

Public health orders – an easier way out?

This alert demonstrates that navigating the path to a successful compulsory vaccine rollout in a workplace is likely to be fraught with complexity and danger.

The same outcome could be achieved by employers more simply if Public Health Orders are issued requiring persons to be vaccinated before entering particular workplaces. This type of approach was adopted by Victoria with respect to health care workers taking flu vaccines in 2020.

It is possible State Governments might regulate in this space, particularly if the early disputes surrounding COVID-19 vaccinations are not determined in favour of employers looking to implement safer workplaces.

Should you be recommending employees get the vaccine?

We would suggest that you adopt the same approach you currently do to things like flu vaccines. Most employers encourage employees to get these as part of employer welfare programs and we would recommend doing this for COVID-19 vaccinations.

Need Advice?

If this has raised any concerns for your workplace, please get in touch with our workplace relations team on 1300 391 426 to discuss your business situation.

Not a member? Join today!

Wage Underpayment Legislation in QLD

Wage Underpayment Legislation in QLD

Late last year, the Palaszczuk Government passed legislation making it a criminal offence for employers to knowingly underpay their staff. Directors and business owners can face jail time.

2020 highlighted several businesses who underpaid their workers. Most employers almost never deliberately underpay their works. Whenever we have identified payment issues it has always been due to the complexity of the industrial relations system, or at worst, a lack of attention or oversight.

Last year the CCIQ spoke in front of a Parliamentary Committee to ask the government not to proceed. They pointed to the economic crisis, a confusing Modern Awards system, and the many ways that cases of alleged underpayment can already be addressed under the current system. They also stressed that there are already so many pressures dampening employers’ confidence and willingness to hire.

What You Need to Know

  • From 10th September, wage theft is a criminal offence in Queensland punishable by up to 10 years in prison for ‘stealing’ and a maximum of 14 years in jail for an offence of fraud.
  • Workers, or a Union on behalf of a worker, can initiate the process by making a complaint to Queensland Police.
  • The process involves conciliation for cases up to $20,000.
  • Workers, or a Union on behalf of a worker, can initiate a civil claim instead, through a new Industrial Magistrates Court if they choose.

What You Need To Do

Now more than ever, employers need to get pays right. This means:

  • Ensure your staff are being paid correctly under the relevant Modern Award or enterprise agreement, keeping in mind recent changes to Award minimum rates of pay and conditions. The General Retail Industry Award will increase by 1.75% from Monday 1st February 2021, the Clerks Private Sector and Timber Industry Awards increased on 1st November 2020.
  • Be sure to factor in allowances, overtime and other relevant award or enterprise agreement entitlements to ensure you are paying pursuant to an award or enterprise agreement.

Need Peace of Mind?

Our workplace relations team provide advice on wage rates and can ensure you are paying your workers correctly.

Global Hardware Market Updates

Global Hardware Market Updates

In this month’s global news, hardware giant Ace Hardware announces that they will replace their retiring president and general manager in April, Sweden’s DYI retailer Byggmax grows by 28.7% and a report by Idealo showed that “Do it yourself” and “Gardening” we the most search products online in 2020 in Italy. 

Read more below

Ace International Replaces Retiring Company President.  

Ace Hardware Corp. announced Jan. 25 that Ace International is replacing its retiring president and general manager in April.

Jay Heubner, current president and general manager of Ace Hardware’s international subsidiary, will retire March 1 after 38 years with the company.

Effective April 5, David Goh will replace Heubner in the role. Goh is currently managing director of Robinsons Retail Holdings, one of the largest multiformat retail companies in the Philippines. Robinsons has a diverse brand portfolio that includes grocery stores, do-it-yourself stores, drugstores, department stores and convenience stores.

Prior to joining Ace International, Goh held several leadership positions across various industries, including a vice president position at Singapore Airlines, CEO of 7-Eleven Singapore and CEO of Cold Storage, a grocery chain throughout Singapore. Goh and his family will relocate from the Philippines to Singapore to be closer to Ace International’s highest growth regions.

“David has a remarkable track record of success in growing businesses and transforming the customer experience,” said John Venhuizen, President/CEO at Ace Hardware Corp.

Ace Hardware is headquartered in Oak Brook, Illinois, and serves more than 5,300 locally owned and operated hardware stores in about 70 countries.

Byggmax Grows by Almost 29 Per Cent in 2020

The Swedish DIY retail group Byggmax achieved a turnover of 6.801 billion SEK (675 million euros) in 2020, a growth of 28.9 per cent. Adjusted for currency and like-for-like effects, the Group’s sales rose by 28.5 per cent. In the fourth quarter, sales increased by 28.7 per cent to 1.222 billion SEK (121 million euros).

Online revenues grew by around 60 per cent; in 2020 this was around 50 per cent. The online business had a share of around 20 per cent over the year as a whole. “Our model of integrating e-commerce and markets enables faster growth,” says the annual report. “Order online, collect in store has grown much faster than home delivery and is one of the strengths of our 169 stores, and online sales typically increase by 15 percent where a new store is opened.”

OBI Recognised as a Top Employer for the 5th Consecutive Year.  

OBI has been certified by the Top Employers Institute as a Top Employer Italia 2021 company. This is the fifth consecutive year that the German multinational has obtained this recognition, distinguishing itself for its constant commitment to provide the best working conditions to its employees and for the implementation of best practice, always having its people as a priority focus.

Even in a complex year like 2020, the company completed the HR initiatives that it proposed. In particular, it has maintained and implemented the projects envisaged for the development of the digital platform aimed at improving the level of communication between employees, in a historical period in which physical contact was reduced to a minimum.

“The year 2020 has placed us in front of difficult and unexpected challenges – comments Marcello Lorenzi, Human Resources Director of OBI Italia. “The certification, which was awarded to us for the fifth year in a row, confirms the ability of our company to maintain a high focus on people and the quality of the work environment, even in objectively complicated situations” Lorenzi adds: “The challenges in 2020 were not lacking, with the implementation of smart working in the offices, and the introduction of new and stringent hygiene and safety measures in the stores. We can be truly satisfied with the objectives achieved”

Do It Yourself and Gardening the most Searched Products Online in 2020.  

In its annual report idealo, the leading international portal in Europe for price comparisons, examined the year 2020 from the point of view of online shopping. Part of the report focused on understanding how the pandemic affected the purchases of Italians.

2020 was a special year for e-commerce with an increase in research and interest in online purchases equal to + 98.7%. This was due to the necessary restrictions initiated to cope with the Covid-19 pandemic.

The long days spent at home during the lockdown led to the rediscovery of the Italians’ passion for furniture, DIY, plant care and the arrangement of their gardens and balconies. In fact, in 2020 the product categories that grew the most were those related to Furniture and Gardening (+ 190.5%) with awnings, garden chairs, outdoor pools and Barbecues all selling well.

The most active online in 2020 were men (60.6% versus 39.4% of women), between the ages of 25 and 34 (25.0%). They carried out searches mainly from mobiles (67.5%), using an Android device (78.0%), on Sundays and in the time slot between 21h and 23h.

DIY Centers see + 22% Sales in December Compared to the Previous Quarter.  

The month of December and the Christmas holidays brought a wave of optimism to the retail market, supporting the operators of physical stores that were heavily impacted by the lockdowns in response to Covid-19. 

The home improvement sector recorded an encouraging + 22% growth in December, in comparison to September-November 2020. In fact, the last month of the year saw a significant increase in sales in numerous product sectors including books(+71%), beauty(+66%), consumer electronics (+52%) and fashion (+37%).

The data was found as part of the latest analysis by the Stocard Observatory, which compared the purchasing trends in the retail markets of December 2020 compared to the period September-November.

Bricomarché, Bricorama and Brico Cash show Double Digit Growth.    

The hardware store division of the French retail group Les Mousquetaires, with the chains Bricomarché, Bricorama and Brico Cash achieved a turnover of 3.97 billion euros in 2020 in France and abroad. In France, the three sales divisions had sales of 3.2 billion euros, an 11 per cent increase on the previous year. 

Their combined market share increased by 0.7 percentage points to 15.10 per cent. According to a press release, the growth here was driven in particular by the garden and decoration ranges. While the first curfew in the spring had a particularly unfavourable effect, the reopening of stores was very beneficial.

In addition, e-commerce and drive-in offers contributed to the good performance. The bricoprivé.com platform, in which the group is involved, had sales of around EUR 187 million in 2020. In the last quarter alone the increase was 68 per cent.

The Bricomarché brand also reported high growth in its international business. The growth in Poland was given at 13.3 per cent, and in Portugal at 20.8 per cent.

The three DIY sales brands of the Les Mousquetaires group currently have 855 points of sale. 679 Bricomarché stores (465 in France, 43 in Portugal and 171 in Poland), 41 Brico Cash stores in France and 135 Bricorama stores in France and one in Georgia.