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Farm workers minimum wage

Farm Workers – Welcome to Minimum Wage

By | Workplace Rights and Entitlements

A Modern Award is a document that sets out the minimum terms and conditions of employment in a particular industry, including minimum wages.

On 3 November 2021, the Full Bench of the Fair Work Commission handed down a decision to amend the Horticulture Award 2020 (the Award), which covers, amongst others, employees who undertake harvesting and fruit and vegetable picking work on farms in Australia.

It is well known that employees undertaking fruit and vegetable picking work are predominantly migrant workers, often on working holiday visas, and often undertake this work as a requirement to be granted an extension of that visa.

Prior to the decision, the Award provided for employers and employees to be able to enter into agreements based on a ‘piecework rate’. A piecework rate meant that the income of the employee was entirely based on their productivity in harvesting, meaning that they were only paid for what produce they picked. The decision acknowledged that a significant portion of pieceworkers earnt less per hour than the National Minimum Wage.

The amendment introduced a new provision providing a ‘floor’ for earnings for pieceworkers so that employees working under piecework agreements must be paid for each hour of work; and must be paid at least the minimum rate payable for their classification and type of employment under the Award.

This decision and amendment provides a safety net for employees undertaking work under a piecework agreement and is a significant positive step for employees undertaking harvesting work on farms across Australia.

Note: the current minimum rate under the Award for harvesting work is $25.41 per hour.

If you have questions as to whether your employer is complying with the terms of a Modern Award or have queries about your classification and rate of pay, please contact our office on 1300 851 430.

Workplace Vaccination Laws

Update on Legal Developments on Workplace Vaccination

By | Workplace Rights and Entitlements

Both employers and employees have work health and safety obligations when it comes to a safe working environment and the health and safety of employees. It is unlikely that a ‘one size fits all’ approach within a business would be considered reasonable from a legal standpoint when considering mandating vaccination – against covid-19 or otherwise.

Recent decisions out of the Fair Work Commission in Barber v Goodstart Learning [2021] FWC 2156, Kimber v Sapphire Coast Community Aged Care [2021] FWC 1818 and Glover v Ozcare [2021] FWC 2989 related to the issue of employees refusing to comply with directions for mandatory influenza vaccinations (without valid medical exemption).

The findings that have resulted from these cases indicate that requiring an employee to receive an influenza vaccination in higher risk industries – i.e. childcare and aged care – is likely to be considered a lawful and reasonable direction that can form a valid basis for terminating an employee’s employment.

What we are yet to see is a decision regarding an employee who has refused to be vaccinated and does not work in a ‘high risk’ industry such as aged care or childcare or provide an essential service.

Attending work around unvaccinated colleagues

Employees do have the right not to attend work or to cease work if they have a genuine, reasonable concern that they would otherwise be exposed to a serious risk to their health or safety. However, what would need to be considered in the circumstances around non vaccinated employees would likely be factors such as:

  1. if the work is to be conducted in a well-ventilated space;
  2. whether social distancing can be observed in the space;
  3. whether masks are being worn in the workplace;
  4. whether the work is to be done in an area of low case transmission etc.

It would most likely be considered a lawful and reasonable direction for an employer to direct an employee who is hesitant or refusing to attend work with unvaccinated colleagues, to attend or face possible disciplinary action.

Some people may be concerned about whether or not to get a vaccination which is being mandated by an employer for fear of suffering side effects. It should be noted that there may be the ability for an employee who has suffered side effects to a vaccination which they got as part of a mandate by their employer, to make a workers compensation or personal injury claim.

In a recent decision out of the New South Wales Personal Injury Commission in Sara v G & S Sara Pty Ltd, an employer was held liable for the death of an employee who had contracted Coronavirus while he was travelling in the course of his employment. The employee suffered from various significant symptoms and subsequently passed away as a result of contracting the virus. The Commission found that the employee’s wife, who brought the claim, was entitled to compensation as a result of the injury he had sustained during his employment.

At present, there have not been any decisions in relation to an employers expectation that employees get a particular vaccination not being a lawful and reasonable direction. However, at present, it does not appear that alternatives to vaccination have been considered either, for those who do not wish to be vaccinated for reasons other than medical grounds.

It may well be that, in the future, alternate possibilities such as a negative result from a rapid antigen test, mask wearing and social distancing, individually or in combination, would be considered reasonable measures to be taken in workplaces for unvaccinated employees to remain working.

If you are unsure about your rights at work in relation to vaccination or lawful and reasonable directions (vaccination related or otherwise), please contact us on 1300 851 430.

Covid Vaccinations in the workplace

FAQs about COVID-19 Vaccination in the Workplace

By | Workplace Rights and Entitlements

The COVID-19 pandemic has had a significant impact on employment and workplace conditions.  Now with the COVID-19 vaccination becoming more available, there is an increase in employers seeking to require their employees to be vaccinated.

Below we have answered some of the frequently asked questions about vaccine requirements in the workplace.

Can my employer force me to get the COVID-19 vaccination?

 Whether your employer is able to require you to get the COVID-19 vaccine depends on the particular circumstances of the employment and needs to be assessed on a case by case basis.

It should be noted that your employer has a duty to ensure, so far as reasonably practicable, the health and safety of its workers and any other persons on their premises (such as clients and customers).  Therefore, your employer may direct you to be vaccinated against COVID-19 to reduce the risk of COVID being contracted or transmitted in the workplace.

Your employer may direct you to be vaccinated where:

  • a specific law requires you to be vaccinated. For instance, a State or Territory public health order has been issued to that effect.
  • an enterprise agreement, award or employment contract provides that it is permitted.
  • the direction from your employer to be vaccinated is lawful and reasonable.

You may be able to refuse your employer’s direction to be vaccinated against COVID-19.  However, depending on the circumstances, your refusal could result in your employer taking disciplinary action against you, which may include termination of your employment or redeployment.

What does “reasonably practicable” mean?

‘Reasonably practicable’, in relation to a duty to ensure health and safety, means that which is reasonably able to be done in relation to ensuring health and safety.

Whether it is ‘reasonably practicable’ for your employer to direct you to get vaccinated against COVID-19, your employer is required to take into account and weigh up all the relevant matters, including:

  • the likelihood of you and other people in the workplace contracting and transmitting COVID-19.
  • the degree of harm that might result from you and other people in the workplace contracting and transmitting COVID-19.
  • the persons knowledge of contracting and transmitting COVID-19 and the ways of eliminating or minimising the risk.
  • the availability of eliminating or minimising the risk of contracting or transmitting COVID-19 in the workplace.
  • the costs associated with the ways of eliminating or minimising the risk of contracting and transmitting COVID-19 in the workplace, including whether the risk is disproportionate to the risk.

What is a lawful and reasonable direction?

 As an employee, you are obligated to follow all directions from your employer that are lawful and reasonable.  A failure to follow a reasonable and lawful direction may amount to serious misconduct and result in you being dismissed from your employment.

A direction to be vaccinated will be ‘lawful’ provided the direction complies with any employment contract, industrial instrument (such as an award or enterprise agreement), and any Commonwealth, state or territory law (for example the Fair Work Act 2009 (Cth) and anti-discrimination laws).

Your employer has an obligation under the relevant workplace safety laws to provide and maintain a working environment that is safe and without health risks.

Whether the direction from an employer to be vaccinated against COVID is reasonable, will depend on the circumstances, including the terms of the public health orders in place, the nature of the work being performed, the extent to which employees are working in close contact with other people, the risk of COVID-19 being transmitted in the location the direction is given.

A direction to be vaccinated may be reasonable where:

  • employees are required as part of their duties to interact with people with an increased risk of being infected with COVID-19 (such as, employees working in hotel quarantine or border control).
  • employees are required to have close contact with people who are particularly vulnerable to health impacts of COVID-19 (such as, employees working in health care or aged care).
  • employees interact with other persons (such as customers, other employees or the public in the normal course of employment) and there is community transmission of COVID-19 occurring in an area that your workplace is open to provide essential goods and services.
  • a state or territory has made a public health order requiring workers to be vaccinated against COVID-19 in their state or territory (such as, employees working in residential aged care facilities who were required to receive their first dose of the vaccine by 17 September 2021).

A direction to be vaccinated may be less likely to be reasonable where:

  • employees have minimal face-to-face interaction as part of their normal employment duties (such as, employees working from home).
  • no community transmission of COVID-19 has occurred for some time in the area where your workplace is located.

When can I refuse to follow a direction by my employer to be vaccinated?

You may be able refuse to follow a direction from your employer to get the COVID-19 vaccine if you have a valid medical reason for not receiving the vaccine due to a risk that it could pose to their health and safety, and you have obtained a medical exemption. Services Australia provides a list of valid medical reasons that count as a medical exemptions.

You may also be able to refuse to follow a direction to get vaccinated if your employer’s direction is inconsistent with anti-discrimination laws, which protect employees from being discriminated against because of their race, religion, sex or disability.

If your reason for not getting vaccinated is because of an attribute that is protected under the anti-discrimination laws, such as disability, then a direction from your employer to get vaccinated against COVID-19 could constitute as indirect discrimination.  In such circumstances, your employer should make reasonable adjustments to accommodate you, so you are able to perform your job.

It is, however, lawful for an employer to discriminate against you on the grounds of your disability if:

  • the condition or requirement to be vaccinated is shown to be ‘reasonable’ in the circumstances.
  • you are unable to carry out the ‘inherent requirements’ of your job.
  • the making of adjustments to accommodate you in the workplace would impose an ‘unjustifiable hardship’ on your employer.
  • your disability is an infectious disease, which could arguably also include an infectious disease that may exist in the future, and such discrimination is ‘reasonably necessary’ to protect public health.

In determining whether it is reasonable for your employer to mandate COVID-19 vaccinations in the workplace, the court may consider the public health orders in place at the time, the nature of your disability or medical condition, the nature of the work you perform and whether you have close contact with vulnerable people.

Can my employer require me to provide evidence if I have refused to have the COVID-19 vaccine?

Your employer may reasonably request that you provide evidence supporting their refusal to follow a direction to be vaccinated against COVID-19.  However, the collection of any reasons for the refusing to be vaccinated or medical evidence must be reasonably necessary, as it is considered to be sensitive information under the Privacy Act 1988 (Cth).  Therefore, your employer can generally only collect this information with your consent.

Depending on the circumstances, it may be reasonably necessary for your employer to collect the reasons and any evidence for your refusal to consider all the evidence before them in order to consider what action is to be taken, if any.

If you do not provide any evidence to your employer to support your refusal to be vaccinated, then your employer may take disciplinary action against you for failing to follow the direction.

Can I refuse to follow a directive from my employer to get vaccinated if I don’t have a medical exemption or an attribute protected under anti-discrimination laws?

If you refuse to follow a reasonable and lawful direction to be vaccinated from your employer and you do not have a good reason to refuse the direction, your employer may take disciplinary action against you, which may include the termination of your employment.  The failure to follow a reasonable and lawful direction is considered to be serious misconduct and is a valid reason for dismissal.

What if I want to be vaccinated, but I want to wait to get my vaccination?

 If your employer has made a lawful and reasonable direction for you to be vaccinated and you do not comply with that direction, your employer may take disciplinary action against you, which may include termination of their employment.  The failure to follow a reasonable and lawful direction is considered to be serious misconduct and is a valid reason for dismissal.

Next Steps

 If you have concerns about the reasonableness or lawfulness of a direction given by your employer, then please contact us at Anderson Gray Lawyers for a confidential, no obligation discussion about your situation.

We take the time to hear your story and help determine if you have a genuine or legitimate claim.  We can then offer a variety of fee options to suit your situation.

casual worker

FWC finds casual work can be ‘regular and systematic’ for determining length of service

By | Unfair Dismissal

Fair Work Australia Excerpt on Casual Employment

A recent case before the Fair Work Commission (Greene v Floreat Hotel Pty Ltd [2020] FWCFB 6019)  discussed how an employee can still be a ‘regular casual’ with ‘irregular hours’. This case considered a period of casual employment and whether it counted towards an employee’s length of service for the purposes of being eligible to make an unfair dismissal application.

In the case that was determined late last year, Ms Amy Greene, a food and beverage attendant, was employed as a casual from 24 February 2019 until 20 January 2020 (approximately 11 months). Between 20 January 2020 and her dismissal date on 16 April 2020 (approximately 3 months), she was employed on a permanent full time basis.

Ms Greene brought an unfair dismissal application alleging that she was unfairly dismissed by her employer. The employer made a jurisdictional objection (an objection wherein the employer claims that the Fair Work Commission does not have the power to deal with the claim) claiming that Ms Green had not met the minimum employment period.

In order to be eligible to make an unfair dismissal application, an employee must meet the minimum employment period. For employees of a small business (less than 15 employees), they must have been employed for a minimum of twelve (12) months. For employees of a business that is not a small business (15 or more employees), they must have been employed for a minimum of six (6) months.

FIRST INSTANCE

At first, the Fair Work Commission considered whether Ms Greene had met the minimum employment period to be eligible to be protected from unfair dismissal.

The Commission noted that the employer was not a small business, and therefore, the minimum employment period required to be met by Ms Greene was six (6) months. The Commission rejected Ms Greene’s claim for unfair dismissal, noting:

  • On review of her timesheets, her actual hours of work varied widely from week to week and she did not work consistent hours each week;
  • The irregularity in her hours of work did not support a reasonable expectation of regular and systematic work;
  • Her employer made it clear that Ms Greene should not, and could not, expect ongoing employment on a regular and systematic basis while employed on a casual basis, and Ms Green would seem to have accepted this to be true by signing the contract for permanent employment; and
  • Ms Green did not have a reasonable expectation of continuing employment on a regular and systematic basis.

SECOND INSTANCE – APPEAL

Ms Greene appealed the Commission’s decision. On appeal, the Commission allowed Ms Greene’s claim of unfair dismissal to proceed finding that she had met the minimum employment period, noting:

  • Ms Greene’s period of casual employment was on a regular and systematic basis. It was regular as her timesheets show that, apart from periods in which she took holidays, Ms Greene was consistently engaged to work substantial numbers of hours in every week;
  • It was on a systematic basis because she worked in accordance with a roster that was established by the employer in consultation with her. Regular casual work undertaken in accordance with an established rostering system may reasonably be described as systematic in nature;
  • Ms Greene had a reasonable expectation of continuing casual employment on a regular and systematic basis. This expectation arose from the fact that, pursuant to a roster system, she was employed every week to work substantial numbers of hours except when taking pre-arranged leave, and that she was involved in the preparation of the rosters;
  • Ms Greene felt sufficiently secure in her casual employment that she was able to reject the employer’s initial offer of permanent full-time employment after returning from holiday between September and October 2019 and she continued to be employed regularly and systematically afterwards notwithstanding this;
  • Whatever the employer may have said to Ms Greene in relation to not expecting regular and systematic hours, this is not what the employer actually did. The timesheets show that Ms Greene continued to be employed regularly and systematically after these statements and up until the time she accepted permanent employment. This necessarily led to the expectation of continuing employment which Ms Greene held during her period of casual employment.

Take Aways

Casual work can be ‘regular and systematic’ for the purposes of counting towards length of service. It does not have to follow a particular pattern of similar shifts or similar hours. This applies regardless of what the employer may have communicated to the employee about what their expectations should be, it is the actual nature of the engagement that is most telling.

If you are a casual employee and are unsure if you would be considered a ‘regular and systematic’ casual or believe you have an unfair dismissal claim but are not sure if you have met the minimum employment period, contact us at Anderson Gray Lawyers to assist you with your enquiry.

The case referred to can be found here: https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb6019.htm

Social Media at Work

Social Media and Your Employment: How to Avoid Disciplinary Action – Part 2

By | Bullying & Harassment

In part 2 of this article we provide four more tips to help you navigate your social media use, whether it’s Facebook, Instagram, Snapchat, Twitter, LinkedIn or TikTok, without getting yourself into trouble at work.

Unfortunately, what you post, comment or share on social media can have an impact on your employment and can lead to your employer taking disciplinary action against you, including terminating your employment.

Here are tips numbered 5 to 8.  You can see our first four tips here.

1. Don’t access your social media on equipment supplied by your employer.

You may have been provided with a mobile phone, tablet, computer or laptop by your employer for work purposes that can be used for personal reasons, including accessing your social media.
Despite being able to use your work equipment or devices, you need to keep in mind that your employer can monitor your web traffic on their network and/or your use of their equipment.

Also, another way employers have become aware of a person’s conduct on social media is by employees not logging out of their social media accounts. Majority of the social media platforms allows the program to remember your login details, which is a convenient tool as you don’t have to login every time you access your social media accounts. However, your employer has the right to access your work computer or device as it is their property. If you have remained logged in to your social media, your employer may be able to view your social media activity.

The best way to avoid disciplinary action is to not use the devices provided by your employer to access your social media.

Also, the accessing of your personal social media accounts using work supplied equipment could be in breach of your employer’s policies. So, make sure that you familiarise yourself with those policies.

2. Don’t post on social media if you’re having a ‘sickie’.

Another good tip is don’t post on your social media, or be tagged in a post, that shows you having them time of your life when you have taken a ‘sick day’.

The purpose of personal/carer’s leave is for when you, an immediate family member or a member of your household is sick or injured. So, if your employer becomes aware that you weren’t actually ‘sick’ or ‘injured’ by observing through your social media that you were somewhere having a good time when you had called in sick, then your employer may take disciplinary action against you due to the personal/carer’s leave not being genuine.

3. Don’t access your social media during work hours, unless it is actually part of your job.

Depending on the type of job you have, you may be required to access and use social media. However, if your role doesn’t actually require you to use social media, we suggest that you don’t access your personal social media during work hours.

Accessing your personal social media during work hours is not considered to be ‘work’ and such conduct may be in breach of your employer’s policies, which could lead to you being subject to disciplinary action.

4. Don’t send your work colleagues pornographic material through your social media, or at all!

The Fair Work Commission has found that the sending of pornographic material to other employees through social media outside of work hours is a valid reason for terminating a person’s employment.

The forwarding of pornographic material to your work colleagues through your social media or by other means can be considered as a connection to your employment, especially if the recipient finds the material to be offensive or they feel that they are being sexually harassed.

Keep in mind that if you engage in conduct towards another employee that is outside the workplace, which materially affects or has the potential to materially affect a person’s employment, including the sending of offensive material, then this is something that may draw your employer’s attention, be in breach of your employer’s policies, be considered potential sexual harassment, and result in disciplinary action being taken against you.

If you have any questions or require advice in relation to social media and your employment, please contact Anderson Gray Lawyers on 1300 851 430 to speak with one of our employment lawyers.

Social Media at Work

Social Media and Your Employment: How to Avoid Disciplinary Action – Part 1

By | Bullying & Harassment

We live in a world where our main form of communication is through social media, whether it be through Facebook, Instagram, Snapchat, Twitter, LinkedIn and more recently TikTok.

Unfortunately, what you post, comment or share on social media can have an impact on your employment and can lead to your employer taking disciplinary action against you, including terminating your employment.

To help you avoid disciplinary action, we have prepared a two part articles providing some tips that every employee should adopt in relation to their social media activity.  Here are the first four tips.

1. Don’t post offensive, derogatory or defamatory material about your employment on social media.

We all have those tough days at work and all you want to do is to vent your frustrations on social media or make a ‘joke’ about your workplace or a work colleague. The best tip that we can give you is ‘don’t do it’.

Unfortunately, when it comes to social media and your employment, you aren’t able to say what you want, even if your social media posts were made outside of work hours, at home or by using your personal device.

Your employer can take disciplinary action if your social media activity:

  • is offensive, derogatory or defamatory about the company, management, work colleagues or their clients/customers;
  • causes or is likely to cause damage to the employment relationship;
  • damages the relationship between yourself and other employees;
  • is damaging to the company’s interests; or
  • is incompatible with your duties as an employee.

Also, making disparaging comments about other work colleagues, whether jokingly or not, could amount to bullying and harassment and result in your employer commencing disciplinary action against you.

If your employer has a social media and/or bullying and harassment policy, ensure you familiarise yourself with those policies to ensure that your conduct on social media is not in breach of those policies. Even if your employer doesn’t have such policies in place, still err on the side of caution, as your conduct may be of such a serious nature that the lack of policies is of no consequence.

2. Don’t identify yourself as an employee of the company on your social media or posts.

Employers are increasingly wanting to protect their brand and reputation. So, your comments on social media may not be in line with your employer’s values and culture of their business. The main link between your employment and potential harm to your employer’s reputation, is whether your employer can be reasonably identified through your social media or posts.

There are multiple ways that an employer can be identified. The most obvious is listing your employer as the company that you are employed by on your social media. Other ways include publishing posts naming your employer or posting photos displaying your employer’s logo or signage.

So if your employer is able to be identified and you publish inappropriate comments or material on your social media that can cause damage to your employer’s reputation and/or the employment relationship, then you could be subject to disciplinary action.

3. Don’t add people that you work with to your social media.

Social media allows work colleagues to connect and get a better insight to their personal lives. However, in our experience, one of the main ways an employer has become aware of a person’s conduct on social media is because their work colleagues have reported them to management.

If other employees do follow you on social media, then be mindful of the content that you post about your work and your workplace.

If you are considering adding work colleagues to your social media, we suggest that you review your social media content and identify if it is generally work-related or personal.

4. Ensure that your social media settings are set to ‘private’.

Another way that employers become aware of an employee’s conduct on social media is when their social media accounts are publicly accessible. So, to ensure that people who do not follow you can’t access your social media, change your settings to ‘private’.

Though, despite the perception being that your social media is ‘private’ there are ways in which your social media can become accessible to your employer. For instance, ‘tagging’ one or more of your work colleagues in a post, which can then be accessed by those people’s friends or followers, which may include management. So be mindful that ‘private’ is not necessarily ‘private’ on social media.

Look out for Part 2 of this article coming soon with another four critical tips to ensure your social media activity doesn’t get you into hot water at work.

If you have any questions or require advice in relation to social media and your employment, please contact Anderson Gray Lawyers on 1300 851 430 to speak with one of our employment lawyers.