The End of COVID Mandates

The End of COVID Mandates

 

By Andrew Wright, Partner at Boylan Lawyers

 

At 12:25pm on 24 May 2022, the Emergency Management Declaration made pursuant to the Emergency Management Act that allowed South Australia’s Police Commissioner Grant Stevens to impose COVID-19 lockdowns, mask and vaccine mandates has been revoked.

 

Other than the SA Public Health Act 2011 and any Direction that may from time to time be issued by The Governor of SA, there is no absolute requirement for obligatory vaccinations for COVID-19 as it relates to the workplace and employment.

 

Indeed, each matter in South Australia will now raise the question of “safety” in the workplace balanced with the rights of the worker to determine one’s own vaccination status. From an employment law perspective, employers can no longer terminate workers simply due to a refusal to vaccinate. That would not constitute a “valid reason” under the Fair Work Act 1994. There must be proof that Work Health and Safety Law requires it, or some other statutory provision has provided for it, but saying that the Government has mandated vaccinations to terminate employment with no other valid reason, will no longer be sufficient.

 

There are matters that we are dealing with where injured workers are fit for suitable duties but have been denied suitable employment based on their non-vaccination status. Since the revocation of the Emergency Declaration, employers can no longer maintain this position even if arguably it was made and confirmed previously.

 

As such, in these cases we will write to the insurer and/or worker and put them on notice about the worker being ready, willing, and able to undertake suitable duties regardless of their vaccination status. Similarly, injured workers cannot be criticised now for breaches of mutuality or suffer prejudice because of their non-vaccination status.

 

Andrew Wright, Partner at Boylan Lawyers, expert in industrial relations for workers encourages workers to be aware of their rights. 

Boylan Lawyers puts the rights of South Australian workers first. Contact our team of experts on (08) 8632 2777.

 

Mandated Vaccinations – are they legal?

Mandated Vaccinations – are they legal?

Mandated Vaccinations – are they legal?

By Andrew Wright

We have endured hearing and reading about the word ‘mandate’ over the past 18 months, but what the heck does it mean?

The word ‘mandate’ has been used when referring to workers in certain industries needing to be vaccinated in order to continue with their duties at work. Classic examples of a mandated workforce are healthcare and education.

‘On just terms’

Confusingly, a mandate in an Act, or an individual policy created by an employer, does not always mean that it is compulsory to comply with that Order or Direction.

Cast your mind back to the classic Australian movie, The Castle. In the end, the Kerrigans weren’t required to hand over their suburban home to Airlink, the company expanding the airport next to their home. This is because the High Court found that their home was not being acquired ‘on just terms’ by Airlink.

Similarly with mandates, they must also be ‘on just terms’.

So, what does that mean?

Well, the directive must be within the bounds of Australian and international law.

If the employee is discriminated against by the employer on the grounds that they are unable to be vaccinated due to a medical condition, then that may well violate Australian and international law.

There are also arguments surrounding religious reasons for not wanting to be vaccinated. However, so far, the courts have been unwilling to give much weight to that argument.

Employers are also in a tough position.

Employers have an obligation to ensure their workforce is safe, alongside their customers and clients, as per the Work Health and Safety Act 2012.

Indeed, employer groups have called on the government to mandate the vaccination requirements at work more broadly under legislation. This would alleviate the need for business owners to attempt creating policies, which cause a minefield.

Recently, to make matters more complex, it was found by the Fair Work Commission that there must be adequate consultation with respect to policies and vaccination. Employers must consult with employees and, if necessary, employment groups, before implementing a policy that directs its workforce to vaccinate.

In conclusion, mandates are legal to the extent that they must be ‘on just terms’. This means the mandate cannot violate other Australian or international laws, such as discrimination. Courts are now making decisions that guide what is and isn’t acceptable with respect to vaccination mandates (E.g., workplaces requiring consultation with employees).

If you require advice on this topic, please contact Boylan Lawyers on (08) 8632 2777.  

Andrew Wright is a Partner at Boylan Lawyers, expert in industrial relations for workers, and the pre-selected Labor candidate for the Seat of Stuart.

COVID19 and Workers Compensation Claims

COVID19 and Workers Compensation Claims

Injured Worker | Boylan Lawyers
From 23 November 2021, South Australia’s borders will be open to fully vaccinated people from all Australian states and territories, with some exceptions (SA Gov). The expected rise in COVID-19 transmission means everyone should be aware of their rights and responsibilities when it comes to safety at work and workers compensation.
 

Workplace Responsibilities

Any person conducting a business has a responsibility to ensure, so far as is reasonably practicable, the health and safety of workers in their workplace. This likely includes minimising, if not wholly eliminating, the risk of exposure to COVID-19. Consequently, workplaces are expected to continue with physical distancing, mask wearing, good hygiene, regular cleaning and maintenance, and encouraging vaccination. 

Employers should keep up to date with cleaning requirements for the various workplaces (SA Health).

Workers have responsibilities to take reasonable care for their own safety too. Workers should ensure their acts or omissions don’t adversely affect the health and safety of others. Workers must also comply with reasonable instructions and co-operate any reasonable policy or procedure relating to health or safety at the workplace. 

Employers are encouraged to read the SafeWork Australia guides and understand how to best provide a safe working environment. Read the SafeWork guides here to check if your workplace is complying with the recommendations.  

What Happens if my Workplace is Deemed an Exposure Site? 

If your workplace is exposed to COVID-19, the following guidelines for assessing and managing risk have been implemented by SA Health: 

  • General Businesses and Venues: hospitality, community sport, places of worship, retail services, entertainment facilities, higher level education, beauty and other services, information and educational facilities, major recreation facilities.  
  • Critical services and infrastructure: defence, essential infrastructure work (i.e. energy services, water services, food manufacturing), emergency services, veterinary services, and agriculture.   
  • Primary and community health care settings: medical settings, paramedics, pharmacies, pathology services, non-residential disability care. 

What Financial Support Exists if I am Directed to Quarantine or Isolate?  

The South Australian Government has outlined a pandemic leave support payment and cluster isolation payment for individuals. More information can be found here 

Alternatively, sick/personal leave, annual leave, income protection (where a policy allows), or other applicable insurance may be available to you. If you are unsure of your entitlements, you should speak to a lawyer. 

Can I Claim Workers Compensation if I Catch COVID-19 at work? 

If you catch COVID-19 and believe you caught it from work, then you can make a workers compensation claim, this is even if your employer took all reasonable steps to minimise the risk. Whether you succeed will depend on your unique circumstances. You will have to prove on balance that the infection came from the workplace, rather than another source such as exposure in the community outside of work. It is highly recommended that you speak to a lawyer if you think you caught COVID-19 at work. 

Boylan Lawyers puts the rights of South Australian workers first. If you want more information about your rights as a worker, contact our team of employment and workers compensation experts on (08) 8632 2777.  

Elias Angeletti is Senior Associate at Boylan Lawyers, specialising in employment and workers compensation law. Elias was admitted in 2014 and has since been involved in workers compensation legal proceedings before the South Australian Employment Tribunal, Administrative Appeals Tribunal, the Supreme Court of South Australia, and the High Court of Australia.  

Workers’ rights to keep in mind during lockdown

Workers’ rights to keep in mind during lockdown

From 23 November 2021, South Australia’s borders will be open to fully vaccinated people from all Australian states and territories, with some exceptions (SA Gov). The expected rise in COVID-19 transmission means everyone should be aware of their rights and responsibilities when it comes to safety at work and workers compensation.
 

Workplace Responsibilities

Any person conducting a business has a responsibility to ensure, so far as is reasonably practicable, the health and safety of workers in their workplace. This likely includes minimising, if not wholly eliminating, the risk of exposure to COVID-19. Consequently, workplaces are expected to continue with physical distancing, mask wearing, good hygiene, regular cleaning and maintenance, and encouraging vaccination. 

Employers should keep up to date with cleaning requirements for the various workplaces (SA Health).

Workers have responsibilities to take reasonable care for their own safety too. Workers should ensure their acts or omissions don’t adversely affect the health and safety of others. Workers must also comply with reasonable instructions and co-operate any reasonable policy or procedure relating to health or safety at the workplace. 

Employers are encouraged to read the SafeWork Australia guides and understand how to best provide a safe working environment. Read the SafeWork guides here to check if your workplace is complying with the recommendations.  

What Happens if my Workplace is Deemed an Exposure Site? 

If your workplace is exposed to COVID-19, the following guidelines for assessing and managing risk have been implemented by SA Health: 

  • General Businesses and Venues: hospitality, community sport, places of worship, retail services, entertainment facilities, higher level education, beauty and other services, information and educational facilities, major recreation facilities.  
  • Critical services and infrastructure: defence, essential infrastructure work (i.e. energy services, water services, food manufacturing), emergency services, veterinary services, and agriculture.   
  • Primary and community health care settings: medical settings, paramedics, pharmacies, pathology services, non-residential disability care. 

What Financial Support Exists if I am Directed to Quarantine or Isolate?  

The South Australian Government has outlined a pandemic leave support payment and cluster isolation payment for individuals. More information can be found here 

Alternatively, sick/personal leave, annual leave, income protection (where a policy allows), or other applicable insurance may be available to you. If you are unsure of your entitlements, you should speak to a lawyer. 

Can I Claim Workers Compensation if I Catch COVID-19 at work? 

If you catch COVID-19 and believe you caught it from work, then you can make a workers compensation claim, this is even if your employer took all reasonable steps to minimise the risk. Whether you succeed will depend on your unique circumstances. You will have to prove on balance that the infection came from the workplace, rather than another source such as exposure in the community outside of work. It is highly recommended that you speak to a lawyer if you think you caught COVID-19 at work. 

Boylan Lawyers puts the rights of South Australian workers first. If you want more information about your rights as a worker, contact our team of employment and workers compensation experts on (08) 8632 2777.  

Elias Angeletti is Senior Associate at Boylan Lawyers, specialising in employment and workers compensation law. Elias was admitted in 2014 and has since been involved in workers compensation legal proceedings before the South Australian Employment Tribunal, Administrative Appeals Tribunal, the Supreme Court of South Australia, and the High Court of Australia.  

Read ‘Presuming COVID-19 arises from work‘ which outlines why COVID-19 should be a deemed injury under the Return To Work Act 2014 (RTW Act) South Australia.

Under the RTW Act South Australia has a list of jobs and medical conditions that are presumed to have occurred (deemed injuries) because the injury or disease occurred when they were undertaking a task that is likely to have caused that injury or disease. Unless there is proof to the contrary from the insurer/employer (the reverse onus) then the claim for that injury is accepted.

Covid-19 must be included in that list, at least for workers such as nurses, doctors and cleaners who are working in ‘high-risk’ areas, or the front line. Section 9 is the evidentiary provision under the RTW Act.

Workers’ rights to keep in mind during lockdown

Workers’ rights to keep in mind during lockdown

Much has been said by employer groups surrounding entitlements for employers during lockdowns within South Australia, but what about employees and their entitlements?

Workers may feel pressured to follow instructions from their employer under these stressful circumstances. However, it is important to keep in mind your rights as a worker and more importantly, understand your entitlements. Below are six of your rights as a worker which may potentially be available to you.

  1. Annual Leave – You cannot be forced to use your annual leave during an unpaid stand-down.
  2. Sick/Carer’s Leave – If you are sick or caring for someone whilst on unpaid stand-down then you can use your sick/carer’s leave and be paid for that leave. This is otherwise known as personal/carer’s leave.
  3. Re-crediting your Annual Leave – If you are on annual leave and you are either sick or caring for someone then your annual leave should be re-credited, and that leave should instead be called personal/carer’s leave.
  4. Injured worker compensation – If you are an injured worker and have been stood-down without pay then you should be entitled to receive compensation from your employer’s insurer.
  5. Reduced hours or duties – If you have been advised your hours or duties are being reduced or diminished permanently then this may give rise to a redundancy payment.
  6. Casual worker – If you are a casual worker then now is the time to see whether you can request a conversion to permanent work. The Federal Government changed this criteria recently but as a general rule, if you have been employed on a casual basis for 12 months with your current employer you have a right to request, and potentially be made permanent.

Outside of the above rights, there are several other forms of compensation or entitlements you may be able to claim, including:

  1. Long Service Leave – If you are struggling to make ends meet, check whether you have Long Service Leave Entitlements, or any other statutory entitlements available to you.
  2. Leave – You can enquire with your employer what leave is available to you in your circumstance.
  3. Timely Pay Slips – All workers have to be provided with timely pay slips advising not only of the wage that is being paid to you, but also has to show an accrual of your leave entitlements.
  4. Injury entitlements – If you have been injured at work in the past then make sure you are not missing out on any entitlements through the insurer.
  5. Unfair Dismissal – You have 21 days to make an application for unfair or unlawful dismissal so if you think your contract has been terminated or adversely affected then get in contact with your union or Boylan Lawyers.
  6. Liquidation or Bankruptcy – If your employer goes into liquidation/bankruptcy then the Fair Entitlements Guarantee (FEG) may provide you the accrued entitlements, including wages and leave entitlements that your employer cannot afford to pay.

If you are struggling with your current income during lockdown, you may be eligible for other financial Covid19 support, including:

  1. Pandemic Leave Disaster Payment – A $1500.00 payment from the Commonwealth Government to a worker for each 14-day period a worker is required to quarantine and cannot work due to quarantine (conditions apply).
  2. Covid-19 Disaster Payment – On 28 July 2021 workers can receive $375.00 per week if they are unable to work between 8 and 20 hours a week and $600.00 a week if unable to work for over 20 hours a week.
  3. SA Covid-19 Cluster Isolation Payment – Unlike the disaster payment this payment is a one-off payment of $300.00. You are eligible if you must self-isolate due to being in a cluster area and is to compensate you whilst awaiting your result.

Check your eligibility on the SA Government website here: www.covid-19.sa.gov.au/school-and-community/financial-support-for-individuals

 

Andrew Wright is a Partner at Boylan Lawyers, expert in industrial relations for workers, and the pre-selected Labor candidate for the Seat of Stuart.

 

Boylan Lawyers puts the rights of South Australian workers first. If you want more information about your rights as a worker during the Covid19 lockdown, contact our team of experts on (08) 8632 2777. It costs nothing to ask a question.

 

 

Andrew Wright
Employment Lawyer & Partner
Boylan Lawyers

Contravening Parenting Orders During COVID-19 Lockdown

Contravening Parenting Orders During COVID-19 Lockdown

Co-parenting COVID-19 | Boylan Lawyers

COVID-19 has caused a great wave of issues throughout our community. One of those issues has been the significant increase in disputes regarding the care of children in separated families. Some parents have elected to depart from the usual care arrangements without consultation with their counterpart. This has resulted in a variety of disputes concerning the contravention of an order whereby a parent has intentionally failed to comply with an order.  It has also aggravated issues that would have otherwise remained dormant. 

The increased of the rising disputes is evident by the need by the Family Court to create a special Court list for parent related disputes that arise due to the coronavirus. [See: http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/about/news/jpd032020]

The general comments by the Family Court have been that parties need to use common sense as a result of their response to the challenges created by the pandemic.

Unfortunately, such common sense is not always possible among parents because there is a level of animosity which makes it very difficult for reasonable discussions to take place. 

What is in the interest of the child remains the paramount consideration.  Family Law Act 1975 (Cth) sub-div. F div. 13A pt. V11, s. 43(1)

Kardos & Harmon [2020] FamCA 328 (7 May 2020) is a recent judgement in the family Court which highlights the need for parents to be pragmatic when dealing with the COVID-19 pandemic.

In that matter, the father lived in Brisbane and made an application that final orders had been contravened by the mother who resides in Adelaide. The mother contended that the circumstances of the COVID-19 pandemic provided a reasonable excuse for her not to travel to Brisbane to deliver the child.  The court found that the mother had not contravened the final orders and had established that she had a reasonable excuse for non-compliance with them. The Court went on to vary the final orders to facilitate the father spending time with the child. The net effect of the court’s orders were that the father would need to travel to Adelaide, and be subject to quarantine requirements, should he wish to see the child however in the event that he did not travel to Adelaide then the child would have make up time with him at a later date.

Kardos & Harmon provides some guidance to parents in different states or territories, but it becomes more difficult for those within the same state.  In those cases, whether there is a reasonable excuse is a far more difficult question to answer.  Those parents who tie themselves to the public health notifications (such as https://www.sahealth.sa.gov.au/wps/wcm/connect/public+content/sa+health+internet/conditions/infectious+diseases/covid+2019/coronavirus+disease+2019+covid-19), which are considered by the Court, will most probably find it difficult as the restrictions ease.   Not long ago most state governments were considering whether schools would be open or not and parents choosing to keep children at home for their safety. Things have changed dramatically since then and now what was once a reasonable step would now be seen as unreasonable.  This should cause great alarm for those parents who have acted unilaterally to contravene orders under the guise of a reasonable step in response to COVID-19.  In hindsight, their actions will not be viewed positively.

Different judges will have different interpretations of when a party is acting from a health and well-being approach as opposed to capitalising or taking advantage of the crisis. It would depend on the context and history of the particular matter and the nature of the contravention.  The result is that parents must seek legal advice to understand their position in light of their specific circumstances. Those who are opportunistically taking advantage of some of the restrictions should be immediately cautioned and asked to reconsider their position. 

In addition to getting specific legal advice about parents breaching orders because of COVID-19 restrictions, there are also resources that can help guide parents with the difficulties of managing parenting during the pandemic. One of those resources has been produced by the Law Council of Australia and can be found below. It provides practical steps that can assist parent’s with coping. 

The time taken to traverse the Family Court system is increasing exponentially with these matters.  There is always an opportunity to privately mediate the issues in order to reach a pragmatic compromise however if that is not possible then matters must be advanced as a priority rather than being delayed as each day goes by.