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allowed South Australia’s Police Commissioner Grant Stevens to impose COVID-19 lockdowns, mask and vaccine mandates has been revoked.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.
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.
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.
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.
Annual Leave – You cannot be forced to use your annual leave during an unpaid stand-down.
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.
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.
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.
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.
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:
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.
Leave – You can enquire with your employer what leave is available to you in your circumstance.
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.
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.
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.
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:
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).
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.
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.
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.
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