COVID 19 PANDEMIC
The pandemic again played a pivotal part in shaping trends in 2021.
Many cases made their way to courts and tribunals across Australia, as businesses were required to navigate through COVID outbreaks and restrictions imposed by government issued directions.
Employment and safety principles that became highly relevant in 2021 because of the COVID pandemic included the following:
- The employer’s right to issue lawful and reasonable instructions to its employees, including but not limited to mandating COVID vaccines.
- The employer’s obligation to consult with its employees in connection with work health and safety matters.
- The employer’s right to dismiss an employee if they are unable to perform the inherent requirements of their position.
As the risk of COVID continues into 2022, we are likely to see ongoing tension (and litigation) as decisions are made to minimise the risk of transmission in the workplace and ensure continuity of operations.
AN EVOLVING WORK ENVIRONMENT
Flexible and remote working options look like they are here to stay.
However, attention in 2021 turned to addressing unexpected challenges, including the following;
- Navigating existing terms and conditions of employment and practices, which are less aligned to flexible work arrangements.
- Understanding and addressing not only physical hazards but psychosocial hazards arising from isolated and remote work.
- Handling change in the workplace – change in communication systems, technology, and culture.
We expect the ongoing evolution of work will continue to impact businesses across Australia in 2022. We set out below issues to consider;
- Managing conflicts over working from home / remote work.
- Managing productivity, work morale, and culture.
- Monitoring hours of work and ensuring compliance with record keeping and pay requirements.
- Managing virtual conduct including cyberbullying and harassment.
- Monitoring and minimising health and safety risks in remote work settings and liability issues.
PROTECTIONS AT WORK
Last year, amendments were made to the Sex Discrimination Act (Cth) and the Fair Work Act 2009 (Cth) to address sexual harassment in the workplace. These changes included the following;
- Introducing a new form of unlawful conduct, called ‘sex-based harassment.
- Extending the limitation period of making a complaint to the Australian Human Rights Commission from six months to 24 months.
- Introducing new powers for the Fair Work Commission to make anti-harassment order.
The WA Parliament’s inquiry into sexual harassment in the FIFO mining industry has put the spotlight on this unacceptable behaviour.
The inclination of regulators to view sexual harassment as an occupational health and safety issue will have the effect of bringing that conduct into a regulatory regime in which fines can be levied on perpetrators as well as their employers.
Finally, in November 2021, we also saw several bills introduced into the federal parliament to further prevent discrimination in Australia on the grounds of religion.
In March 2021, a legal definition of casual employment was introduced in the federal employment system, together with additional obligations imposed on employers in connection with casual employees.
The High Court decision of Rossato handed down in August 2021 further clarified that when assessing whether an employee is a casual and whether a firm advance commitment to ongoing work has been made by the employer, the courts will start by considering the terms of the employment contract.
We are seeing at this early stage, that the High Court’s reasoning in Rossato regarding the primacy of the contract will be applied more broadly by Courts and Tribunals than just to cases involving casuals
INDUSTRIAL REFORM IN WESTERN AUSTRALIA
Industrial reform is back on the table for our state employment system.
As opposition to the Bill introduced in October 2021 is unlikely, we expect to see the proposed changes become law in the first quarter of 2022.
For those covered in the Western Australia system which include local governments, public sector employees and those operating as or employed by sole-traders, non-corporate partnerships, and non-corporate trusts, you can expect numerous changes including those stated below.
- A new entitlement to family and domestic violence.
- A new anti-bullying and harassment jurisdiction.
- Increased penalties for non-compliance and serious contraventions of employment laws and awards.
- Additional record-keeping obligations.
WORK HEALTH AND SAFETY IN WESTERN AUSTRALIA
It is now understood that the new Work Health and Safety Act 2020 (WA) and its supporting regulations, will come into force later in the first quarter of this year.
A new legal framework and increased funding and powers to Western Australia’s health and safety regulator, WorkSafe WA could lead to enhanced monitoring, investigations, and prosecutions.
Unless award simplification returns to the IR agenda, we expect compliance issues will continue to cause difficulties for employers in 2022.
Throughout last year, we continued to see confusion about the interaction of awards and employment contracts and the absence of written employment contracts or outdated contractual terms that offered little protection for employers.
Special leave has been granted by the High Court of Australia in connection with two appeals relating to whether the relevant workers in those cases are in fact employees or contractors.
These upcoming decisions should provide clarity in Australia about the proper test for determining whether an independent contracting relationship exists, including the weight that should be given to written contracts.
With a federal election likely to be announced for the first half of 2022, and elections campaigns to begin in February 2022, more should be known shortly about what to expect on the federal industrial relations front.
 Workpac Pty Ltd v Rossato & Ors  HCA 23
 ZG Operations Australia Pty Ltd & Anor v Jamsek & Ors S27/2021 and Construction, Forestry, Maritime, Mining and Energy Union & Anor. V Personnel Contracting Pty Ltd P5/2021