• A childcare worker in Gladstone was dismissed from her role at Goodstart Early Learning (Goodstart) following her repeated refusal to get the flu vaccine, with the Fair Work Commission finding in favour of her former employer in the case of Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156.

     

    Background:

    Goodstart had a workplace policy requiring employees to be vaccinated against influenza, stating that vaccines were “mandatory” for employees. Despite this policy, the policy contained an exemption for employees who had medical conditions preventing the administration of the vaccine. Ms Barber repeatedly refused to comply with the policy on the grounds that she suffered from coeliac disease, had suffered an adverse reaction to a previous flu vaccine, and had a “sensitive immune system”.

    In attempting to verify Ms Barber’s claims, Goodstart offered to pay for various medical appointments, although following this process, it remained unclear whether Ms Barber was precluded from obtaining the vaccine. In fact, the Commission found that Ms Barber submitted two medical certificates from different medical practitioners, neither providing a “substantive” medical reason justifying her refusal to comply with the policy.

    Furthermore, it was noted that Ms Barber was unable to find a doctor willing to complete Goodstart’s pro forma medical certificate which required the doctor to mark a box if they believed her medical condition would place her at an increased risk of an adverse reaction to the flu vaccination. Given that there was an absence of medical evidence to support her concerns, it was held that her refusal to obtain vaccination was more akin to a “conscientious objection” that did not excuse her from the obligation to comply with the policy.

     

    Is a Mandatory Vaccination Policy Lawful and Reasonable?

    In her continued refusal to comply with the policy, Ms Barber failed to comply with a lawful and reasonable direction to obtain vaccination. The Commission considered that Goodstart had legal obligations under workplace health and safety legislation to ensure the health and safety of the children in it’s care in addition to employees, with mandatory vaccinations being the most effective way to reduce the risk of transmission of influenza throughout the facility. The Commission also considered that the policy provided employees to be exempt from the vaccination on the provision of sufficient medical evidence, which Ms Barber was unable to do.

    The Commission were of the view that Ms Barber worked in a highly regulated industry and was in direct contact with children who did not have fully developed immune systems and were not old enough to be vaccinated. It was relevant to the Commission that the early childhood education industry has a long-standing history of requiring staff to be vaccinated against certain diseases and viruses, and that the vaccination policy implemented by Goodstart was not inconsistent with industry norms.

    In determining that Ms Barber’s dismissal was fair, the Commission drew particular attention to the careful process followed by Goodstart in that the process took a number of months and provided the employee with multiple opportunities to provide additional information and to respond to their concerns and requests.

     

    Can Other Businesses Introduce a Mandatory Vaccination Policy?

    The Commission’s decision confirmed that lawfulness and reasonableness of a direction for an employee to be vaccinated must be determined on the consideration of a number of factors, including:

    1. the type of vaccine that is involved;
    2. the type of workplace the employee works in;
    3. the nature of the industry; and
    4. the individual themselves, including whether any medical exemptions may be applicable.

    While such a direction was deemed to be reasonable in the context of early childhood education where hands-on care is provided to vulnerable members of the community, it is unlikely that the decision could be applied more broadly to other industries or workplaces.

     

    If you’re wanting to know whether such a policy would be applicable to your business or if you are considering enforcing or implementing a vaccination in your workplace, contact our dedicated Workplace Relations team today:

    Amie Mish-Wills
    Principal Legal Advisor – Workplace Relations

    Anna Fanelli
    Legal Advisor – Workplace Relations

    ☎️ |  (07) 4646 2621
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  • Upcoming Award Changes - Manufacturing, Hospitality, General Retail, Education Services, Fire Fighting and Pastoral Awards to Change on 27 September 2021

    Following on from the successful passing of the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth), the Fair Work Commission (the Commission) has commenced reviewing and amending current modern awards to ensure they align with the new definition of casual employees and appropriately include mechanisms for casual conversion.

     

    Starting with stage 1 awards, the Commission has confirmed that the following awards will be amended on 27 September 2021:

    • General Retail Industry Award 2020
    • Pastoral Award 2020, and
    • Manufacturing and Associated Industries and Occupations Award 2020
    • Hospitality Industry (General) Award 2020
    • Fire Fighting Industry Award 2020
    • Educational Services (Teachers) Award 2020.

     

    The Commission has highlighted the importance of ensuring existing awards are appropriately amended to remove outdated terms relating to causal employment as historical definitions including “engaged as a casual”, “paid by the hour” and “day to Day” could cause confusion and give rise to inconsistencies and uncertainty because they are inconsistent with the new definition of casual employee in s 15A of the FW Act.

     

    This is only the beginning of the Commission’s review and there will no doubt be further amendments announced as the work progresses.
    If you would like to know more about the changes to the modern awards, the Fair Work Act 2009 (Cth) or the definition of a casual employee,  reach out to our dedicated Workplace Relations team today:

    ☎️ | (07) 4646 2621
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  •  General Retail Industry Award Wage Increased by 2.5% On 1 September 2021 | Enterprise Legal

    As you would have seen in our previous annual wage increase article published in June, the Fair Work Commission announced that it would be rolling out its annual wage increase in stages as a knock on effect of the previous staged increases at the start of the COVID-19 pandemic.

    On 1 September 2021 the minimum wages contained in the General Retail Industry Award increased by 2.5% as part of this staged rollout. Employers in the retail industry should ensure that they appropriately review their staff wages and not delay in actioning this increase.

    The final stage of the increase rollout will take place on 1 November 2021, with the following Awards increasing by 2.5%:

    • Air Pilots Award 2020

    • Aircraft Cabin Crew Award 2020

    • Airline Operations – Ground Staff Award 2020

    • Airport Employees Award 2020

    • Airservices Australia Enterprise Award 2016

    • Alpine Resorts Award 2020

    • Amusement, Events and Recreation Award 2020

    • Dry Cleaning and Laundry Industry Award 2020

    • Fitness Industry Award 2020

    • Hair and Beauty Industry Award 2010

    • Hospitality Industry (General) Award 2020

    • Live Performance Award 2020

    • Mannequins and Models Award 2020

    • Marine Tourism and Charter Vessels Award 2020

    • Nursery Award 2020

    • Racing Clubs Events Award 2020

    • Racing Industry Ground Maintenance Award 2020

    • Registered and Licensed Clubs Award 2020

    • Restaurant Industry Award 2020

    • Sporting Organisations Award 2020

    • Travelling Shows Award 2020

    • Wine Industry Award 2020

     

    To learn more about the wage increase or to receive advice regarding how to best manage award wage increases throughout your business, contact EL's dedicated Workplace Relations team today:

    ☎️ | (07) 4646 2621
    ✉️ | Submit an Online Request