Looking Forward to 2022: What’s Topical in IR

OWEN WEBB - AHA|SA WORKPLACE RELATIONS MANAGER

There is no doubt that from an industrial relations and human resources perspective, the last 12 months have thrown up some interesting “curve balls” for South Australian hospitality venues. Employers have had to manage the morale of their staff whilst contending with border closures, the policing of customers with ongoing restrictions to activities, a snap lockdown in July and the wellrecognised issue of the severe staff shortage across the industry.

But as we move into the Christmas and New Year period and look forward to what 2022 brings us, we look at some of the topical issues that we will face in 2022 as an industry from a workplace relations perspective and what the implications are of those issues.

VACCINATIONS IN THE WORKPLACE

Vaccinations in the workplace and the question of whether to introduce workplace policies to mandate COVID-19 vaccination for staff has certainly been a hot topic of debate right across the country in the latter half of 2021.

Most other states and territories outside of South Australia have introduced at some point in time, laws through public health orders or emergency directions which require hospitality staff, by a particular date, to be fully vaccinated against COVID-19 for them to be able to continue to be rostered to work on the licensed premises. These new laws have also introduced requirements for customers to also be fully vaccinated to be able to enter a licensed premise.

South Australia however is in somewhat of a unique position in comparison to most other states and territories. At the time of writing this article, the South Australian Government has chosen not to introduce laws mandating COVID-19 vaccinations for employees working in the hospitality sector, apart from those working in a medi-hotel environment.

So for South Australian hospitality venues we have moved into unchartered waters from an industrial relations perspective as venues weigh up the question of whether to introduce mandatory workplace COVID-19 vaccination policies for their staff.

In the absence of any state government enforced laws on mandatory vaccination for hospitality staff, some venues, particularly some of the larger establishments, have chosen to introduce their own workplace policies on mandatory COVID-19 vaccination.

So the question that beckons now and into 2022 for South Australian hospitality employers is where do they stand when it comes to directing staff to be vaccinated in the absence of any state government enforced laws?

LAWFUL AND REASONABLE DIRECTION

We know that an employer can direct employees to get vaccinated where:

• A specific law (such as a state public health order/emergency direction) requires an employee to be vaccinated; or

• they have written permission to do so (such as under an employment contract or enterprise agreement which requires an employee to have the COVID-19 vaccination); or

• the direction to be vaccinated is considered a “lawful and reasonable direction”.

So what is of most significance for South Australian hospitality venues is the issue around whether a direction would be considered lawful and reasonable.

The Fair Work Ombudsman has been helpful in providing more details on what factors may be considered relevant when determining whether an employer direction to an employee to be vaccinated is reasonable or not. Factors include but are not limited to:

• The nature of each workplace (for example, the extent to which employees need to work in customer facing roles)

• The extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community.

• The terms of any public health order/emergency direction in place where the workplace is located

• The effectiveness of the vaccine in reducing transmission of serious illness

• Work health and safety obligations

• Each employees’ circumstances, including their duties and the risks associated with their work

• Whether employees have a legitimate reason for not being vaccinated (for example a medical reason.

With the decision from the South Australian Government to open the borders to interstate travellers on 23 November 2021, the likelihood of community transmission and spread of the virus in South Australia is much greater, putting employees in the hospitality environment at much greater risk of contracting the virus when compared to the risks before the borders were opened.

In the absence of any state public health order/emergency direction for hospitality staff to be compulsorily vaccinated, an employer’s direction to employees in a hospitality environment in South Australia is likely to now be considered much more reasonable given the much higher likelihood of community transmission of COVID-19 occurring in the state.

An employer direction to get the COVID-19 vaccination will be also be lawful if:

• it does not breach any terms of the employment contract, any applicable award or enterprise agreement; and

• it does not breach any applicable Commonwealth, state or territory law (for example, antidiscrimination laws), that apply to the employees.

Under Australia’s anti-discrimination law, it is unlawful to treat a person less favourably on the basis of protected attributes, including gender, race, religion, disability or age.

Mandating vaccination will not result in “direct discrimination” as an employee’s decision to refuse vaccination is not an attribute protected by any Australian discrimination laws. However, “indirect discrimination” is also prohibited by discrimination laws and could arise in certain circumstances.

MANDATORY WORKPLACE VACCINATION POLICIES

The AHA|SA has provided through an “Employer Guide” information to Members on mandatory workplace vaccination policies for their staff including a template covering letter and policy. It is important to ensure that when looking to introduce such a policy, the following considerations are made:

• Providing a period of consultation with your staff and any of their representative prior to the implementation of such a policy.

• Consultation with any employee representatives such as Unions, particularly where a Union is a party to any Enterprise Agreement or Collective Agreement.

• Providing a realistic timeframe for when the first and second dose vaccinations would be required, taking into consideration vaccine availability and mandatory times between doses.

• Providing a clear outline of what would occur to those employees that choose not to be vaccinated. For example whether they would be transferred into another role, whether they would be allowed access to paid leave before being required to take leave without pay, and whether ultimately their employment could be terminated if they remain unvaccinated.

There is no doubt that workplace vaccination policies for COVID-19 will need to be fine-tuned and adapted into 2022 as the levels of risk may change with the introduction of variant strains into the country and as the need for booster jabs becomes increasingly important.

NEW EMPLOYEES

Implementing workplace policies around vaccination is one thing for existing employees but there is also the need to ensure that the risks from COVID-19 in the workplace are minimised into the future.

Increasingly employers are now placing terms into their standard contracts of employment to ensure that any new employees are fully vaccinated prior to commencement as part of their conditions of employment.

As we potentially reduce the levels of restrictions close to Christmas this will no doubt become a popular way of ensuring that as new employees come into an employer’s business in 2022, the levels of vaccination across the workforce are maintained or potentially even increased. The AHA|SA can assist members with any enquiries they may have in relation to COVID-19 vaccination contract terms.

WORK HEALTH & SAFETY OBLIGATIONS

The South Australian Government’s decision to open the borders on 23 November 2021 was an important reminder that COVID-19 is still widespread across the world and that it is going to be more important than ever for the hospitality industry in 2022 to focus on the importance of work health and safety.

Employers have a duty under the Work Health & Safety Act 2012 (SA) to ensure that they maintain a safe environment for their employees and also anyone who enters the premises. Part of maintaining a safe environment is to ensure that for hospitality venues they eliminate, or if that is not reasonably practicable, minimise the risks of COVID-19 in the workplace so far as is reasonably practicable.

Employers need to ensure so far is reasonably practicable that they put control measures in place to minimise the risks of COVID-19 in the workplace. Such control measures can include:

• Ensuring employees do not come to work when unwell

• Practising social distancing

• Improving ventilation, where appropriate

• Practising and promoting good hygiene

• Increasing cleaning and maintenance, and

• Wearing masks

It is going to be even more critical now and into 2022 for employers to consult with their employees, assess any risks and hazards in the workplace and implement consistent and comprehensive practices and policies in relation to their workplace cleaning and hygiene standards.

VISA CHANGES TO ALLEVIATE STAFFING SHORTAGES

One of the consistent messages from hospitality employers in 2020 and 2021 has been just how difficult it is to find staff. The staffing shortages have been crippling to the hospitality sector with some businesses having to close at certain times because they simply cannot find enough staff to work across the businesses’ opening hours.

One of the major contributing factors to these staffing shortages has been the lack of skilled migrants, international students and working holiday makers. Many of these migrants were left with no other choice but to leave Australia in 2020 to return to their homelands, unable to access government assistance packages such as the JobKeeper Program.

It has been pleasing to see that there have been several key visa changes recently announced by the Federal Government that will help to alleviate the dire staff shortages across the country. These changes build on the announcement that fully vaccinated eligible temporary and provisional visa holders may enter Australia without a travel exemption from 15 December 2021.

Key visa changes include:

• Improved access to permanent residence for Existing Temporary Skill Shortage (subclass 482) visa holders in the short-term stream and Legacy Temporary Work Skilled (subclass 457) visa holders who no longer meet the age requirement.

• Extending for a further six-months, Visa Application Charge waivers for new Visitor visa applicants overseas where their visa expired, or will expire, between 1 January 2022 and 30 June 2022.

• Allowing Temporary Graduate visa holders, who have been unable to travel to Australia as a result of COVID-19 international border restrictions, to apply for a replacement visa.

• Increasing the length of stay on Temporary Graduate visas in the Masters by Coursework and Vocation Education and Training (VET) streams.

• Simplifying the requirements for Temporary Graduate visa applicants for VET sector graduates.

• Extending the existing measure for student and temporary graduates to recognise time spent offshore studying online to count towards qualifying for a Temporary Graduate visa application.

• From 1 January 2022, Switzerland becoming the 45th country to have access to Australia’s Working Holiday Maker program. Young people from Switzerland, aged between 18 and 30, will be able to apply to stay in Australia for one year while undertaking short-term work and study.

• Extending measures to further support New Zealand citizens adversely impacted by COVID-19 who are on a pathway to permanent residence.

• Opening the pathways to permanent residence from 5 March 2022 for eligible Hong Kong and British National (Overseas) (BNO) passport holders, through two new visa streams.

These changes to visa conditions and the return of international students and skilled migrants from December 2021 is certainly welcome news for the hospitality industry and will ensure that as we go into 2022 there will be a greater supply of labour available to fill the current shortages.