02 Sep HR LAW AUGUST 2021 NEWSLETTER

Welcome to the HR Law August newsletter.  August has been another busy month across the employment law space.  We have again seen many changes and developments, including significant changes to modern awards being announced and the increased implementation of mandatory vaccinations across various industries.  

Casual terms in Modern Awards

Employers can expect changes to the casual terms in certain modern awards. The Fair Work Commission has confirmed that it will vary casual terms in five “stage one” Modern Awards in light of the changes made to the Fair Work Act 2009 (Cth) (“FW Act”) as part of the IR Omnibus Bill. To read our full update regarding this, please follow this link: https://www.hrlaw.com.au/fair-work-commission-confirms-variation-to-casual-terms-in-modern-awards/.  The Group 2 modern award review is underway and a decision is expected soon.  You can read our previous article about this here https://www.hrlaw.com.au/casual-terms-award-review-2021-group-2-update/.

Employees working overseas not entitled to Long Service Leave

An employee’s entitlement to long service leave is governed by the FW Act and State and Territory legislation such as the Industrial Relations Act 2016 (Qld) and the Long Service Leave Act 1955 (NSW).  Long service legislation generally provides that upon certain conditions being met, an employee, including full-time, part-time, casual and seasonal employees, may be entitled to applicable periods of long service leave. 

In a recent case heard in the Victorian Supreme Court of Appeal, Infosys Technologies Limited v State of Victoria [2021] VSCA 219, the Court was required to determine whether two former employees of Infosys Technologies Limited (“Infosys”) were entitled to long service leave under the Long Service Leave Act 2018 (Vic) (“the Act”). 

Background

Infosys employed software engineers to work in its international IT company.  Both software engineers commenced employment with Infosys in India but worked across various jurisdictions throughout their employment. The first software engineer had been assigned to Infosys’s operations in the United Kingdom before returning to India and finally being deployed to Victoria. The second software engineer worked in India for nearly a decade before being deployed to work in Victoria. Both employees resigned whilst employed at Infosys’s Victorian operations.

Upon termination of their employment, both employees made a claim to Wage Inspectorate Victoria, the Victorian statutory authority, seeking that Infosys pay the first software engineer almost $12,000.00 for 8.1 weeks of long service leave and the second software engineer more than $21,000.00 for 10.2 weeks of long service leave 

Decision

Despite both employees meeting the qualifying time period of seven years of continuous employment with the one employer under section 6 of the Act, Justices Niall, Kennedy and McDonald found that Infosys was not liable to pay the long service leave entitlements. 

In reaching their decision, their Honours examined the facts of whether or not the employment in India was to be included for the purpose of the seven year “continuous employment” provision under the Act and if there was a sufficient connection to the Victorian long service leave legislation.  Justice Niall observed at paragraph [4]:

“Although the LSL Act does not specify the need for a connection nor articulate what the connection must be, as a matter of basal principle, an Act of the Victorian Parliament is to be construed as dealing with matters or things in, or connected to, Victoria”.

Justice Niall found at paragraph [39] that employment, “undertaken in India had absolutely no connection with Victoria” and “their employment in India did not form part of their continuous employment with Infosys for the purpose of the LSL Act”. 

In a separate joint judgment, Justices Kennedy and McDonald stated at paragraph [103]:

“given the employment of each of Ms Anbalagan and Ms Thankappan in India had no connection with Victoria, that employment did not form part of their continuous employment under the LSL Act. It follows that neither had completed seven years of ‘continuous employment’ at the time their employment came to an end for the purposes of the LSL Act”.

Infosys was entitled to an order the State pay the costs of proceedings.

Practical Implications and tips

This decision highlights that the Courts will carefully consider the employment connection to the State or Territory in which the entitlement to long service leave arises.  Despite the fact that the Infosys employees were employed continuously with the one employer for at least seven years, this was found not to be an automatic trigger point in determining the entitlement to long service leave.   

Employers should carefully consider the circumstances that trigger an employee’s entitlement to long service leave before simply relying on the time provisions under the applicable legislation.  Employers are reminded that they may be required to register under portable long service leave schemes such as Queensland’s QLeave.  This scheme is regulated by legislation and places obligations on employers such as annual reporting provisions.  

If you require any assistance with ensuring you are correctly following the long service leave obligations in your State or Territory, please contact the experienced Lawyers at HR Law who can provide you with advice to assist in helping you to avoid breaching your legal obligations and facing potential penalties.

The content of this article is intended to provide a general guide to the subject matter.  Specialist advice should be sought about your specific circumstances.

Mandatory vaccinations in the Workplace

We are seeing more and more employers implementing mandatory COVID-19 vaccinations in the workplace.  We have seen State or Territory public health orders mandate vaccinations for residential aged care workers and health workers and we have seen employers such as Qantas introduce compulsory vaccinations for all workers.

Employers requiring employees to be vaccinated against certain viruses and diseases is not a new concept.   Certain employees are already subject to mandatory vaccination requirements. For example, health workers who are required to be vaccinated for Hepatitis B and abattoir workers who are required to be vaccinated against Q-Fever. 

Workplace Health and Safety

Workplace health and safety laws place an obligation on a person in control of a business or undertaking to manage the health and safety risks of the workplace.  What is reasonably practicable in controlling that risk and providing a safe workplace is the touchstone of this duty.  Under the Model Laws, employers have an obligation to consult with employees and their health and safety representatives on the actions the employer will be taking to control risks.  This obligation would be considered to extend to the employer introducing a mandatory vaccination policy or amending an existing policy. Part of this consultation process is the requirement to provide reasonable time for the employees and any health and safety representatives to provide feedback and for the employer to consider the feedback in making any final decision.

Consultation Process

Modern Awards and registered enterprise agreements have consultation clauses which provide a consultation process for implementing significant change in the workplace. The introduction of mandatory vaccinations in the workplace may be considered a significant change especially if mandatory vaccination has not previously been an employment requirement.

Lawful and reasonable direction

An employer can direct an employee to be vaccinated so long as the direction is lawful and reasonable.  Lawful and reasonable directions will be dependent upon the circumstances and facts of the situation.  The direction would need to comply with a modern award or enterprise agreement, employment contract and any applicable State, Territory or Commonwealth law.

The Fair Work Ombudsman has released guidelines when considering mandatory vaccinations as follows:

Tier 1 work: where employees are required as part of their duties to interact with people with an increased risk of being infected with Coronavirus (for example, employees working in hotel quarantine or border control);

Tier 2 work: where employees are required to have close contact with people who are particularly vulnerable to the health impacts of Coronavirus (for example, employees working in health care or aged care);

Tier 3 work: where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services); and

Tier 4 work: where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).

Some employers may have operations that cross over several tiers requiring employers to consider factors including public health directives, the risks associated with the employee’s duties and health and safety obligations. 

Supporting the process

To support the mandatory vaccination process, employers in addition to consulting with employees, can provide assistance to employees such as:

• communicating the steps in the implementation process; and
• allowing employees to take time off during work hours to receive their COVID-19 vaccination.

If an employee refuses to be vaccinated or an employee refuses to attend work if a co-worker is not vaccinated, employers will need to carefully consider the circumstances of their refusal before taking any disciplinary action.  Taking disciplinary action against an employee, for example, because of a health condition could give rise to a breach of discrimination laws.   Employers will also need to consider the requirement for prospective employees to be vaccinated as a condition of employment for reasons outlined above. Again however, there may be discrimination considerations which require consideration.

Practical Implications and tips

The decision to implement mandatory COVID-19 vaccinations in the workplace involves a consideration of various factors.

When introducing a new mandatory COVID-19 vaccination policy or amending an existing vaccination policy, employers need to carefully consider the circumstances in which an employee may be exempt from having a COVID-19 vaccination and include a mechanism for employees to raise any concerns they have. As well as consider any potential breaches of discrimination law or privacy law.  For more information on privacy law consideration you can view our LinkedIn update here: https://www.linkedin.com/feed/update/urn:li:activity:6833635769018658816

Before implementing any mandatory vaccination polices, we strongly recommend you contact the experienced lawyers at HR Law for advice on the options available to you and your individual business circumstances.   Getting it right the first time is the best way to avoid any costly claims and penalties that may be made against you or your business.

The content of this article is intended to provide a general guide to the subject matter.  Specialist advice should be sought about your specific circumstances.

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