KNOWLEDGE CENTRE

No Flu Jab = No Job?

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
✉️ | Submit an Online Request


Enterprise Legal | Debt Recovery: Is It Time to Lawyer Up?

Maintaining cash-flow in your business is essential to staying in the black and remaining a viable, vibrant business and nothing is more frustrating than having all your hard work in your business compromised by debtors not paying their Invoices as and when due.

Enterprise Legal has a number of clients who, despite best efforts, have found it difficult to manage their debtor ledger effectively and consequently found themselves in the position of having to take steps to recover debts due and owing to them.

Typically, by the time clients come to see us they are frustrated by the debt recovery process, they have several debts owing to them and in most instances significant time has passed since the provision of the services or goods, and the unpaid Invoice(s).

Whilst ‘better late than never’ rings some truth, we always provide the following advice to our clients who find themselves in the position of having to recover debts due and owing:

1. Prevention is better than cure, so make sure your business has a credit health check and appropriate debt recovery policy and procedure in place from the outset, to optimize the chances of being paid on-time and in-full. Sometimes, spending time and money up-front saves you significantly long-term.

2. Don’t delay! The moment a debt is overdue and the debtor appears non-responsive to ‘chasers’ by your business, come and see the team at Enterprise Legal. The longer a debt is outstanding, the more confident the debtor gets that they can get away with non-payment. Debtors will always have an array of reasons why they can’t pay, it is about knowing the law and how to have the conversation with the debtor, to ensure payment is made swiftly.

3. Sometimes it is as simple as sending a letter of demand on a legal letterhead to recoup payment in full! At Enterprise Legal, we have a 70% success rate at the letter of demand stage, and for a fixed-fee of $330 (which includes up to 3 chaser telephone calls), we often save our clients from headaches and compromised cash-flow down the line.

4. On the occasions where the letter of demand route was not successful, Enterprise Legal has an array of cost-effective strategies and methods to recover debts for our clients, and by combining our knowledge of the law, our pragmatic thinking and our experience in dealing with debtors, we often assist our clients to recover their debts in a cost-effective manner.

 

If you or your business would like a credit health check, a debt recovery policy or assistance with recovering debts, contact Enterprise Legal’s Disputes team today:

☎️ (07) 4646 2621

✉️ Submit an Online Request


Enterprise Legal | Changes to the Fair Work Act Requiring Casual Conversion

Changes made to the Fair Work Act 2009 (Cth) earlier this year have introduced provisions to provide a pathway to permanent employment for casual employees.

Employers now have an obligation to make an offer to convert a casual employee to either full-time or part-time employment (based on their regular work patterns) in circumstances where the employee:

  1. has been employed by the employer for 12 months; and
  1. during the last six months, has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time or part time employee (based on their regular work patterns).

While the obligation does exist, an employer is not required to make an offer where there may be “reasonable business grounds” to not do so. Businesses may rely on reasonable business grounds including:

  1. the employee’s position will cease to exist in the period of 12 months after the time of deciding not to make the offer;
  1. the hours of work which the employee is required to perform will be significantly reduced in that period;
  1. there will be a significant change in either or both of the following in that period:
    1. the days on which the employee’s hours of work are required to be performed;
    2. the times at which the employee’s hours of work are required to be performed;

which cannot be accommodated within the days or times the employee is available to work during that period;

  1. making the offer would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a State or a Territory.

Employers will need to provide casual employees with notice of their decision to not make an offer within 21 days following the end of the employees first 12 months of employment. Any such notice should indicate that an offer will not be made and provide detailed reasons as to why.

 

What Does This Mean For Small Businesses?

While small businesses, being those employers who employ less than 15 employees, are not required to offer conversion to casual employees, casual employees are entitled to request casual conversion if they satisfy the grounds to do so.

 

When Does This Come Into Action?

A six-month transition period is in place, so employers must assess whether casual employees employed before 27 March 2021 are eligible to convert to permanent employment by 27 September 2021.

 

If you would like assistance with these changes to casual employees, start a conversation with our dedicated Workplace Relations team:

☎️ (07) 4646 2621

✉️ Submit an Online Request


Enterprise Legal | Fair Work Commission Wage Increase Announced – 2.5%

The Fair Work Commission has just announced that the National Minimum Wage and all wages in Modern Awards will increase by 2.5%.

The new National Minimum Wage will be $772.60 per week or $20.33 per hour from 1 July 2021.

The increases for Modern Awards will be staggered across a select number of Awards.

The General Retail Industry Award 2020 wages will increase by 2.5% on 1 September 2021.

The following Awards will have their minimum wages increased by 2.5% on 1 November 2021:

  • 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

All other modern awards will have their minimum wages increased by 2.5% on 1 July 2021.

Learn more about the wage increase: Join Amie Mish-Wills – Principal Legal Advisor Workplace Relations and Alistair Green – Director FocusHR on the 1st of July 2021 for the Chamber of Commerce Fair Work Legislation Update Breakfast. 

Register Online Now

 

The Toowoomba Chamber Fair Work Legislation Business Breakfast July 2021