2021 has been a challenging one for employers.  Not only have we seen many of our clients grapple with the ongoing impact of COVID-19 and the legal challenges that have come with it, but also do their best to keep up-to-date with many other employment law related developments throughout the year.

In this Employment Update we take the chance to reflect on 2021 and remind employers of the significant developments that were encountered this year.

We also briefly take a look at what has happened at Aitken Legal during 2021.

Modern Awards Developments

Minimum Rates Increase

In June this year, the Full Bench of the Fair Work Commission (‘Commission’) increased the National Minimum Wage by 2.5%, and determined that the same increase would be applied to the minimum wages set out in each modern award.

The Commission considered data made available to the Review and, based on the ongoing economic impact to certain industries and the pace of the vaccination rollout, determined that the 2.5% increase should take effect, once again, on a staged basis.   For the majority of awards, the increase took effect from 1 July 2021, but for other awards, the increases took effect from 1 September 2021 or 1 November 2021 (see related Alert).

FWC 4-Yearly Review

The Commission, despite the ongoing interruption caused by COVID-19, continues to finalise the last stages of its 4-yearly modern award review.  The ongoing review process has meant significant change for some awards.  If they have not done so already, employers should immediately review the awards that are applicable to their business and ensure that they are implementing any changes that are relevant to, or impact, their business.

We note that there are still a number of modern awards yet to be finalised, including the following awards:

• Aged Care Award 2010
• Black Coal Mining Industry Award 2010 (finalised – changes operative from 28 January 2022)
• Children’s Services Award 2010
• Fast Food Industry Award 2010
• Hair and Beauty Award 2010
• Social, Community, Home Care and Disability Services Award 2010

Schedule X – Additional Measures During the COVID-19 Pandemic

In 2020, the Commission, at its own initiative, varied 99 modern awards to include ‘Schedule X – Additional measures during the COVID-19 pandemic’.  Schedule X provides employees with an entitlement to unpaid pandemic leave and additional flexibility in the taking of annual leave, namely the option to take twice the amount of annual leave at half pay.  For 73 of those awards, Schedule X is due to cease operating on 31 December 2021.  Recently, the Commission has received applications to extend the operation of Schedule X.

Gig Economy Developments

Deliveroo – delivery driver decision

Earlier this year, the Commission handed down a significant unfair dismissal decision, Diego Franco v Deliveroo Australia Pty Ltd [2021] FWC 2818 (18 May 2021) (‘Deliveroo decision’).

In the decision, the Commission concluded that delivery services provided by a Deliveroo delivery rider, and which were arranged through computer-based applications (Apps), constituted an employment relationship, and not an independent contracting arrangement.

After considering common law principles, Commissioner Cambridge determined that the “overall picture”, whilst “impressionistic and not precise” provided a “compelling conclusion” that the relationship between the delivery rider and Deliveroo looked more like an employment relationship than an independent contractor arrangement.  Having found the existence of an employment relationship, the Commissioner then went on to determine the employee’s termination “by way of email communication and without any proper, prior warning, was unjust, unreasonable, and unnecessarily harsh”  (see related Employment Update).

Deliveroo appeal stalled

Deliveroo has appealed Commissioner Cambridge’s decision to the Full Bench of the Commission.  However, the Commission has delayed the Deliveroo appeal following the WorkPac Pty Ltd v Rossato & Ors [2021] HCA 23) [‘Rossato decision’] that was handed down by the High Court, and noting that the High Court is set to hopefully provide more authoritative and relevant guidance in other cases which are currently before the High Court.

Menulog – application for new Award (Demand Delivery Industry Award)

In the meantime, Menulog, on 24 June 2021, made application to create a new modern award, being the On Demand Delivery Industry Award.  The matter was listed for Hearing before the Full Bench of the Commission earlier this month.  A decision is yet to be published.

Changes in the Casual Employment Space

WorkPac Pty Ltd v Rossato & Ors [2021] HCA 23

The Rossato decision is one of the most significant decisions in employment law in recent times.  Previously the Full Federal Court had found that a coal mining employee, Mr Rossato, was entitled to paid leave entitlements, despite being engaged as a casual employee.  However, in a significant decision for Australian employers, the Rossato decision handed down by the High Court of Australia in August this year, upheld  Workpac’s appeal against that Full Federal Court decision.  The High Court concluded that Mr Rossato was a casual employee and not entitled to permanent employee type entitlements.

It is important that employers understand the background to the decision and all the factors considered by the High Court.  For example, the decision absolutely demonstrates the importance of having well drafted contracts of employment for casual employees.  Our Alert on this decision is a must read for all employers (see related Alert).

Fair Work Act 2009 (Cth) – casual employment amendments

In April this year, after much debate in the Senate, the Federal Government’s Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 passed through Parliament, albeit in a significantly reduced form.

While the Federal Government’s proposed broader reforms of the industrial relations system were not passed, the casual employment reform provisions survived.

The Bill introduced into the Fair Work Act 2009 (Cth) (‘FW Act’) a statutory definition of ‘casual employment’ and provides long-term casual employees with a statutory right to request conversion to permanent employment.  The new provisions also place an obligation on non-small business employers to proactively consider offering conversion to casual employees after 12 months service where certain criteria are met (see related Employment Update).

New Sexual Harassment Jurisdiction

Another significant development in the employment space is the commencement of Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth), which became operative on 10 September 2021.   Employers should be aware that as a consequence of this Act:

• From 10 November 2021 applications can be made to the Fair Work Commission for Stop Sexual Harassment Orders.
• Unfair dismissal legislation now expressly recognises that workplace sexual harassment can constitute a valid reason for dismissal.
• Sex-based harassment is now an express form of unlawful conduct. 

The Respect at Work legislation also amended the FW Act to include an entitlement for an employee to take two days paid compassionate leave (two days unpaid leave for casuals) in the event that the employee or the employee’s current spouse or defacto partner suffers a miscarriage (see related Employment Update).

The Question of Mandatory Vaccination

We have given a great deal of advice to clients this year on the issue of mandating vaccinations.  Whilst it will always be open to aggrieved employees to challenge decisions to mandate vaccinations, if the employer has a reasonable and considered assessment and/or grounds supporting the decision, and then implements the decision in a reasonable way, then the employer will have reasonable prospects of defending claims made against them.  Legal advice is essential when considering whether there is an obligation or opportunity to mandate vaccination, and it is vital that employers stay in touch with the most recent developments when considering their obligations and opportunities (see related Employment Update).

Superannuation changes

Superannuation Guarantee Charge rate increase

From 1 July 2021, the super guarantee rate increased from 9.5% to 10%.

Stapled super funds

From 1 November 2021, employees need to request stapled superannuation fund details from the Australian Taxation Office (‘ATO’) for new employees, and where the new employee is eligible for super guarantee payments and does not nominate a superannuation fund.  For clarity, where a new employee chooses their own super fund or chooses the employer’s default super fund, the employer is not required to request stapled super fund details from the ATO.

A snapshot of what’s been happening at Aitken Legal during 2021

• 2021 started with Aitken Legal celebrating15 years on the Sunshine Coast and 10 years on the Gold Coast whilst also opening an office in 
• Our Gold Coast office expanded – Accredited Specialist in Workplace Relations Law, Kate Simpsonjoined our Gold Coast office as a Senior Associate.
• Congratulations to Special Counsel Angela Engel who celebrated her 10-year anniversary with the firm, and to Clare Chalk, who was admitted as a Lawyer in June 2021.
• Aitken Legal was named as finalists in the Australasian Law Awards – it is not often that we blow our own trumpet, but we were proud to be a finalist in the Australasian Law Awards for Employment Law Specialist Firm of the Year!
• Last, but certainly not least, you may have missed Toy Cavoodle, Norman coming on board – he has settled well into office life.

We cannot thank our clients, referrers and contacts enough for all the support that has been provided to Aitken Legal over the years.

Please contact Aitken Legal if you need assistance with any employment law issues.