FWC rules that dismissal for refusing mandated vaccination is fair

FWC rules that dismissal for refusing mandated vaccination is fair

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FWC rules that dismissal for refusing mandated vaccination is fair

covid vaccine injection

At a time when businesses are grappling with what they can do with employees who refuse vaccinations that are mandated by public health orders, a majority decision of a full bench of the Fair Work Commission has provided some relief.

That decision upheld the dismissal of an employee by Sapphire Coast Community Aged Care for refusing to have a flu shot that was mandated by a public health order.

The employee claimed that she had a medical exemption but that did not stand up to scrutiny because the medical certificate was issued by a doctor who did not examine her and relied on her advice to him that she had had a previous reaction to a vaccination. On the other hand, the employer relied on the advice of the Chief Health Officer and public documents which indicated that adverse effects of flu vaccinations are rare and the fact that she might have had a reaction to a vaccine in the past did not mean that she should not have the flu vaccination.

In the original decision earlier this year, the FWC ruled that the employee could not perform the inherent requirements of her job without a flu shot.

The Full bench was considering her application to appeal which they rejected as they found that she didn’t have a valid medical exemption.

Clearly, this tells us that, subject to going through due process, if there is a public health order requiring vaccination of employees as a condition of working in the particular industry setting and an employee does not get vaccinated and does not have a valid medical exemption, the employee’s services can be terminated due to their inability to meet the inherent requirements of the job.

This obviously has ramifications for the construction industry in Victoria where workers are not permitted on construction sites without having at least the first COVID vaccination or providing a valid medical exemption.

We are hearing numerous reports from our clients about employees who are hesitant or refusing to get vaccinated and do not have any basis for a medical exemption.

Most employers we speak to tell us that they don’t want to sack anyone for not getting the jab but they might reluctantly be forced to do that with any employee who chooses not to be vaccinated. Many of these employers are small businesses often in regional communities where relationships go beyond just the workplace and so this is quite a stressful situation for employer and all of their employees.

If you need assistance in dealing with a situation such as this, give me a call on 0438 533 311 – your first consultation is free.

CONTACT US

Ridgeline Human Resources Pty Ltd
Abn : 24 091 644 094

enquiries@ridgelinehr.com.au

6 Ellesmere Ave, Croydon Victoria 3136

Peter Maguire : 0438 533 311

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TELL US WHAT YOU NEED HELP WITH

Dealing with the construction industry lockdown and vaccinations

Dealing with the construction industry lockdown and vaccinations

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Dealing with the construction industry lockdown and vaccinations

lockdown vaccination

Construction businesses are being called on by the Victorian Government to lift their game in assuring compliance with COVID safety requirements.

The Government has advised that nearly 50% of construction sites inspected were not compliant and that around 150 construction sites had become contact sites.

Initially, the directive was that all construction workers had to get a first jab of COVID vaccination if they were going to be permitted to work on a construction site.

Then, on last Monday following violent demonstrations, the Government decided to lock down the industry for 2 weeks.

What does this mean for construction employers?

If there is no other work available for construction employees, they would then be stood down without pay for the two week lockdown. People will be able to return to work on Tuesday 5 October 2021 provided they have provided their employer with proof that they either:

  • Have had at least one dose of COVID-19 vaccination, or
  • Have medical exemption issued by an authorised medical practitioner.

Employers must verify what each employee’s situation is in relation to vaccination and must maintain records of vaccinations and exemptions.

If an employee does not provide the required evidence or just refuses to get vaccinated, the employer must not allow them to return to work and so that again means that the employee would be stood down without pay until such time as the employee produces the evidence required or the vaccination mandate directive is lifted (which is not likely to happen soon).

You should ensure that stand down directions with reasons are provided in writing to each employee that is being stood down.

We are assisting many construction employers in dealing with this issue by providing advice and drafting communications and notices for them.

If you need assistance, call us on 0438 533 311 or email enquiries@ridgelinehr.com.au.

CONTACT US

Ridgeline Human Resources Pty Ltd
Abn : 24 091 644 094

enquiries@ridgelinehr.com.au

6 Ellesmere Ave, Croydon Victoria 3136

Peter Maguire : 0438 533 311

PARTNER LINKS

TELL US WHAT YOU NEED HELP WITH

New casual rule deadline is here

New casual rule deadline is here

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New casual rule deadline is here

casual conversion running out of time

27 September 2021 is just about here and that is when the new rules on casual engagement and conversion come fully into effect.

The Federal Government made amendments to the Fair Work Act back in March. The purpose of the amendments was to provide greater surety about what casual employment is, what entitlements casual employees have and when a casual employee can be offered or apply for conversion to full-time or part-time employment. See our post on 12 May on the legislative changes: https://ridgelinehr.com.au/new-standards-on-casual-employment/

Since then, the Fair Work Commission has been reviewing award provisions relevant to casual employment and casual conversion to align them with the revised provisions of the Fair Work Act.

The changes to Award provisions that it has decided on will also take effect from 27 September 2021. In most cases, the FWC has simply decided to scrap the existing Award provisions for clauses that really just reflect or refer to the new Fair Work Act provisions.

There are some exceptions so you need to check the particular Awards that cover your operations and employees.

Key points in terms of your obligations and exposures as an employer are:

  • You must provide all current and future casual employees with a Casual Employment Information Statement which you can access at https://www.fairwork.gov.au/employee-entitlements/national-employment- standards/casual-employment-information-statement
  • If you have 15 or more employees and you have a casual employee who has been on with you for 12 months and on a consistent work pattern for the last 6 months, you are required to assess them for conversion to ongoing employment by 27 September 2021 or, in future, within 21 days of the employee’s 12 month anniversary of commencing employment.
  • Regardless of how many employees you have, eligible casual employees can request conversion to ongoing employment, you have to respond to that request in writing within 21 days and, if the employee is dissatisfied with your response (eg you refuse the request), the employee can take the matter to the Fair Work Commission for determination.
  • What is really critical is that there is no firm commitment to an ongoing pattern of work in your contract of employment and other terms of the contract are consistent with the requirements and definition of casual employment now prescribed in the Fair Work Act.

What should you be doing:

  1. Assess the status of your casual employees re potential for conversion.
  2. Get your employment contracts professionally reviewed plus things like any position descriptions or job ads you use to ensure that they don’t have compromising content.

If you need a hand with that, give us a call on 0421 592 541 or email us at enquiries@ridgelinehr.com.au.

If you haven’t the benefit of professional advice on your workplace relations compliance situation or you just want to make sure, you might want to take advantage of our Lockdown Special Offer on a Fair Work Compliance Assessment. Pay just $600 plus GST in lieu of the regular price of $750 plus GST. Check it out.

CONTACT US

Ridgeline Human Resources Pty Ltd
Abn : 24 091 644 094

enquiries@ridgelinehr.com.au

6 Ellesmere Ave, Croydon Victoria 3136

Peter Maguire : 0438 533 311

PARTNER LINKS

TELL US WHAT YOU NEED HELP WITH

ACCC successful with Employsure appeal

ACCC successful with Employsure appeal

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ACCC successful with Employsure appeal

In 2018, the ACCC commenced proceedings against Employsure alleging that it had engaged in deceptive conduct, misleading consumers through its google ads which seemed to suggest that it had affiliations with Government agencies – the Fair Work Ombudsman and the Fair Work Commission.

On 1 October 2020, a Federal Court judge ruled against the ACCC but now, on appeal, the Full Federal Court has unanimously ruled in favour of the ACCC.

The Google Ads, published between August 2016 and August 2018, featured headlines such as ‘Fair Work Ombudsman Help – Free 24/7 Employer Advice’ and ‘Fair Work Commission Advice – Free Employer Advice’ and appeared in response to search terms such as ‘fair work ombudsman’.

The Full Court found that Employsure’s Google Ads were misleading in large part because of the use of the government agency names in the largest and most prominent typeface, and because the ads omitted any reference whatsoever to Employsure.

They are still running the Google ads but without the Government authority references.

Employsure has also been prosecuted in the NSW courts for unfair contracts and we have come across numerous businesses which have had difficulty getting out of those contracts.

There are many very good cloud-based compliance solutions out there – our preferred one is Employment Hero. Check it out here.

You can see the full ACCC statement on the Employsure case here.  

If you haven’t the benefit of professional advice on your workplace relations compliance situation or you just want to make sure, you might want to take advantage of our Lockdown Special Offer on a Fair Work Compliance Assessment. Pay just $600 plus GST in lieu of the regular price of $750 plus GST. Check it out.

CONTACT US

Ridgeline Human Resources Pty Ltd
Abn : 24 091 644 094

enquiries@ridgelinehr.com.au

6 Ellesmere Ave, Croydon Victoria 3136

Peter Maguire : 0438 533 311

PARTNER LINKS

TELL US WHAT YOU NEED HELP WITH

HR Coaching

HR Coaching

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HR Coaching

Ridgeline HR’s Peter Maguire has an extraordinary range of experience in HRM across lots of different functional areas and industries. With strengths in creativity, humour and leadership, Peter is also highly innovative and fun to work with. What more would you want in a coach to help you grow your HR capabilities and career?

CONTACT US

Ridgeline Human Resources Pty Ltd
Abn : 24 091 644 094

enquiries@ridgelinehr.com.au

6 Ellesmere Ave, Croydon Victoria 3136

Peter Maguire : 0438 533 311

PARTNER LINKS

TELL US WHAT YOU NEED HELP WITH