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allowed South Australia’s Police Commissioner Grant Stevens to impose COVID-19 lockdowns, mask and vaccine mandates has been revoked.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.
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.
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.
A new year brings a fresh start for many. In the world of family law, this means I am approached by couples looking to divorce after the stresses of the Christmas season. Many couples stay together and ‘bunker-down’ through the Christmas period, often for their children. However, when the new year arrives, they decide they can’t go on.
Deciding to divorce is a tough decision, but also a decision that takes bravery to believe you are making the right choices for your future. As a family lawyer it is my job to support couples through the next steps. Here are five steps typically involved in the divorce process.
1. Get advice: First and foremost, it is important you receive quality advice from a family lawyer. They will help you create a plan that is specific to your personal needs and situation. Your lawyer may also direct you to speak with an accountant or financial planner.
2. Property settlement: Find out what assets, debts and financial resources are up for negotiation regardless of who brought them into the relationship. Your lawyer will likely organise valuations and reports required to settle your property or distribute assets.
3. Parenting Arrangements: Work with your family lawyer how much time each parent receives with the children.
4. Wills and estate planning: Divorce automatically revokes a will. Before you settle, make sure you protect your assets, and your future wishes with a fresh will and estate planning. Not updating your will as a divorced person can lead to disputed estates in the future.
5. Conveyancing and asset transfer: If you decide to sell the assets you own or purchase new assets, you will need help from a conveyancer that can guide you through the process.
The success of negotiations will determine whether you and your ex settle or go to court. The court process is extensive and can be time consuming. Once negotiations or court matters are settled, you can organise conveyancing of the matrimonial home and other assets. You can also settle payments for financial distributions. Once this is complete, the process is now over, and you can take a breath.
The above process is stressful, which is why it’s important to have the right team behind you. Boylan Lawyers can support you through every step of your separation plan. Our family law team has a combined 86 years’ experience. Get a free 30-minute consultation by calling (08) 8632 2777 or email admin@boylanlawyers.com.au.
Rianie Huggins is an Associate at Boylan Lawyers who specialises in family law, estate planning, probate, trusts and more. Rianie has extensive international and local experience in law. She loves being part of the Strathalbyn community and enjoys seeing the unique offerings from talented Artisans throughout the Adelaide Hills and surrounds.
Navigating the Christmas period as a separated family can be stressful. Separated parents need to plan how they’ll share time with their children on the dates of importance (i.e., Christmas, New Year’s Eve, etc.) and what travel arrangements are appropriate during COVID19.
We provide general advice on the commonly asked questions received from separated parents who are trying to navigate the festive season.
What Christmas arrangements are available for separated families?
Plenty of options are available for separated families to share time with their children throughout the holiday period. Examples of Christmas arrangements might include:
Children with one parent on Christmas eve and Christmas morning, and with the other for Christmas afternoon and boxing day.
Children with one parent for all of Christmas, but with the other parent for a couple of hours during the day.
Children spend all the Christmas holidays with one parent, which then changes the next year.
Continue with your usual arrangement if Christmas is not a significant holiday for your family.
Most importantly, both sides need to be happy with the arrangement that is chosen and commit to it. Be polite and civil during negotiations. Nothing makes a matter worse than conflict and threats.
What happens if my ex is being difficult and/or threatening to not go ahead with our plan?
Whether you are newly separated or have been separated for a while, it is important to understand your rights.
If you do not have a court order in place, care arrangements for children are not enforceable. The option to have a judge decide how you and your children spend Christmas is also not an option in December due to the court’s cut-off date.
At the forefront of your actions should be what is in the best interests for the child. They have a right to see both parents and share in the joys of the holidays. Either parent is entitled to make decisions about their children. However, parents need to think about the potential consequences of their actions such as litigation, difficulties with future negotiations or arrangements, and disruption to their children’s life.
Parents should talk to each other and see what arrangements they can make. Parents should also meet with their lawyer to work out an arrangement that is fairer and more concrete in the new year.
My ex wants to travel interstate with our children, and I am worried about COVID19, what can I do?
Generally, it is difficult to get an urgent court listing, and much will come down to the respective COVID laws in place at the time. Questions that would be considered include ‘Are the borders closed for re-entry?’, ‘What state are they going to?’, ‘What are the quarantine obligations on return?’. These are no simple questions, and each case will turn on its own circumstances.
If there is a court order, there might be a “reasonable excuse” for non-compliance with any existing order with respect to allowing travel or not. A primary carer probably faces less adverse legal consequences than a contact parent for travelling or not allowing the other to travel.
An urgent legal letter from your lawyer putting another party on notice may prevent or ensure an outcome. This might also become useful in the future.
With regards to how much the police can help, they prefer to not get involved with family matters. Police will do welfare checks (to a point) and keep the peace. They will not take your children away because the other parent has told you they will. If your children are in danger, the police will step in.
Family and domestic violence services are available
If you are experiencing violence or abuse, family and domestic violence services are still open over Christmas. Don’t think that it is too hard to leave or do something because everyone is closed. If you are not sure what or where to ask – talk to the police. If the police cannot help you themselves, they can direct you to those services who can. Help will be available if you need it.
The Boylan Lawyer’s family law team has a combined 86 years’ experience working in family law, wills and estates, and probate. We are committed to protecting the rights of individuals and families. Clients are now supported from offices in Adelaide CBD, Port Pirie, Strathalbyn, Victor Harbor, Port Augusta, and Whyalla.
Sebastian Hill is the managing partner at Boylan Lawyers. Sebastian oversees all practice areas and has a specialist interest in family law, estate disputes and intergeneration farm transfer. Sebastian provides clients with clear, considered, and practical advice.
Sebastian is a passionate contributor to the legal profession in South Australia having served as a member on several Law Society of South Australia Councils and Committees and as a board member of Westside Community 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.
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.
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.
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