Developer Account

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.

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.

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.