31 Jan HR LAW NEWSLETTER – JANUARY 2022
As we settle into a brand new year, now is a good time to review your businesses operations to check that your business is complying with its legal obligations regarding its workers.
Too often employers get so busy with the daily operations of running their business that they forget to take the time to review their operations to ensure they are in compliance and not breaching any workplace laws. It is important that all employers do this to avoid consequences.
There are many factors that employers need to consider for ensuring they are complying with their legal obligations. Common questions which employers need to ask themselves, include:
- are my employees being paid correctly?
- are our policies and procedures current?
- do we have employment contracts in place?
- are the terms and conditions up to date with any recent legislative changes?
To ensure you are keeping up to date with your obligations, HR Law can conduct a full audit on your business and provide advice. Please contact the team at HR Law if you would like an audit conducted or you have any specific questions about your business compliance.
RECENT NEWS
BHP vaccination mandate found not to breach the Privacy Act 1988 (Cth) (“Privacy Act”)
As part of its Site Access Requirement at 12 of its Queensland coal mines and related sites, BHP required verification sources for proof of COVID-19 vaccination that included an employee’s name, date of birth, vaccine type, the dates of each dose and a document number to assist with site access and COVID-19 control measures as well as to assist BHP manage the risk of fraud.
The CFMMEU, the ETU and the AMWU (collectively “the Unions”) argued BHP did not need to make workers provide vaccination certificates to show they had received the required doses by 31 January 2022 to enter relevant sites. The Unions argued that BHP’s requirement was unlawful and unreasonable in regard to the Privacy Act. The Unions suggested alternatives to BHP collecting vaccination status information, such as using the Check in Queensland app or production of the workers COVID-19 digital certificate.
The Fair Work Commission found it would be unworkable and time consuming for the workers vaccination status to be checked manually and that having such knowledge of the vaccination status, i.e. what BHP was requesting, would inform decisions to mitigate and manage the issues with having a singly unvaccinated COVID-19 positive person go undetected.
You can read the decision in full here:
If you would like advice on what vaccination records you can ask your workers or contractors to provide, please contact us at HR Law.
Addressing critical workforce shortages in Queensland
The effects of critical workforce shortages have had a devastating effect on most businesses.
In Queensland, due to critical workforce shortages, employers managing a setting where only vaccinated people may work that are experiencing critical workforce shortages, can permit a worker who is unvaccinated to enter, work in, or provide services in the facility for up to a month in certain circumstances as allowed for under the COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction.
See our previous article here: https://www.linkedin.com/company/hr-law
Employer can re-investigate rejected complaint
The Fair Work Commission has found that an enterprise agreement does not prevent an employer from re-investigating a complaint even though the employer had previously dealt with and finalised the complaint four years ago.
This matter concerned an employee who accused her colleague (“Colleague”) in 2017 of inappropriately touching her in a ride-share vehicle after a private, non-work function. The employer initially assessed the complaint and told the Colleague that it could not find any grounds for a formal investigation and there would be no impact on the Colleague’s career. The employer subsequently placed the complainant in a position where she would not have contact with the Colleague. The worker was promoted to a new position which may have resulted in the worker having contact with the Colleague. This prompted the worker to make a second complaint regarding the 2017 events.
The employer had recently formed a Safe Place Team which considered the complaint should formally be re-investigated against the Code of Conduct.
In accordance with section 739 of the Fair Work Act 2009, the Civil Air Operations Officers’ Association (“CAOOAA”) on behalf of the Colleague, filed a dispute, arguing that the employer could not have had serious concerns now, due to:
- the way in which the matter was handled in the first instance; and
- the assurances made by the employer to the Colleague, including that there were no grounds for a formal investigation, no ongoing investigation and no impact on the Colleague’s future career.
The CAOOAA considered this was contrary to procedural fairness. The employer submitted that CAOOAA’s assertions were not concerned with a fair hearing or fair investigation but rather were concerned with seeking to prevent the employer conducting a second investigation.
The Fair Work Commission’s role in dealing with the dispute was to consider if clause 50 of the enterprise agreement enabled the employer to re-investigate the same complaint an out of hours conduct. Deputy President Dean found that clause 50 dealt with the procedural process and there was no limitation imposed on the employer in conducting a procedurally fair investigation process.
If you wish to access the full decision, you can do so here:
Practical implications
This case is an example of the importance of correctly and fairly managing a workplace complaint as well as drafting industrial instruments and employment contracts which enable reinvestigation.
The team at HR Law can advise you on what to do if you receive a workplace complaint and the steps you will need to take.
LinkedIn and Website
HR Law has further recent updates on our LinkedIn page which you can follow here: https://www.linkedin.com/company/hr-law and our website: https://www.hrlaw.com.au/
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