Asia-Pacific employment law bulletin 2022
Developments in the light of COVID-19
After the approval of vaccines led to some early optimism, 2021 saw a continuation of the COVID-19 induced disruption of 2020. Australia’s two largest cities spent much of the year in lockdown or subject to significant public health restrictions.
Other areas of the country fared better, and with the exception of the hospitality and higher education sectors, where disruption remained severe, work continued across the nation, with the benefit of the various adaptations developed during 2020, principally work from home arrangements, and targeted isolation arrangements. Our large mining and resources sectors powered through the year with the benefit of very high commodity prices. However, severe restrictions on interstate travel caused hardship and created significant operational difficulties for many employers.
Australia also maintained its largely closed international border for most of the year, with a loosening of restrictions only occurring in recent months. Restricted immigration has led to significant labour shortages across the country, creating further challenges for employers in a number of key industries.
The continuation of flexible working practices that became the norm in 2020 has led to demographic changes, seeing inner city workers relocate in large numbers to locations further from cities, and many remote working arrangements being reviewed, so as to bring workers into the same state as their operations, given the ongoing difficulty of border restrictions.
These are the challenges currently being managed as we look at 2022. Work from home arrangements in particular seem to have largely become embedded in the standard operating structures of many organisations, even where those businesses have been operating in ‘COVID-free’ environments. Maintaining those as ‘steady state’ arrangements indefinitely is a key challenge for 2022.
After a slow start to the vaccine rollout compared to other developed countries, Australia has achieved by the end of 2021 a vaccination rate of over 90% of its adult population, with the vaccination of children and a booster program currently underway.
The high vaccination rate can be linked to a number of factors including the state-based mandatory vaccination laws applying very broadly to workers across a large number of industries with the aim to end the lockdowns.
This broad application of the mandatory vaccination laws, which in some states have applied to effectively anyone unable to work from home, has not gone unopposed, with a vocal minority regularly holding public protests against the continuation of such measures. A number of legal challenges have been brought to the validity of these laws, but to date the Courts have shown limited interest in overturning Government decision-making.
The rapidly changing nature of the mandatory vaccination laws has also presented significant operational and employee engagement challenges for employers, which have been required to enforce compliance in their workplaces (and in some settings to customers accessing their premises).
The varied COVID-19 risk profile and difference in associated public health restrictions in each state, has also led to a number of headaches for employers with national operations, as applying a uniform approach has proved difficult in practice.
Mandatory vaccination policies set by employers
Against this backdrop of broad mandatory vaccination laws, many employers have faced their significant responsibilities under work health and safety laws and implemented their own mandatory vaccination policies. Aiming to ensure equal treatment and remove disputes, many employers have carried out surveys showing majority support from employees for such policies. However, there still remains a vocal minority seeking to avoid and challenge these policies in the courts and industrial tribunals.
The highest profile challenge to date involved the vaccination policy introduced by BHP at its Mt Arthur mine. In an important decision that has implications for all Australian employers, the Full Bench of the Fair Work Commission (the “Commission”) held that as a general principle a mandatory vaccination policy could be a “lawful and reasonable direction” which all employees are required to follow as an implied condition of their employment contracts. However, the Commission found that BHP’s direction was not “lawful and reasonable” in these circumstances. This is because BHP had not met its consultation obligations under state work health and safety laws when introducing the policy.
Importantly, the Commission assured employers in this decision that it will support them in taking steps to meet their health and safety obligations by introducing a mandatory vaccination policy. However, the Commission has seemingly set a high bar for the standard of consultation required, particularly given the rapidly moving nature of the pandemic. The decision nevertheless highlights the importance of employers ensuring that they comply with consultation obligations under all applicable laws and industrial instruments before implementing vaccination policies.
A number of employers and industry bodies have taken steps to encourage employees back to the workplace. However, there remains significant resistance amongst many employees to the prospect of a full-time return, with many preferring to continue to work largely from home.
Despite some employers flagging earlier on in the pandemic an intent to require their workforce to return to the office on a full-time basis, ongoing labour shortages and the threat of the ‘Great Resignation’ have led many employers to adopt a more flexible approach, with two to three days per week in the office a common standard.
Although employers have generally been looking ahead to a more positive 2022, with state governments in the process of, or having flagged, an easing of border and public health restrictions, the recent emergence of the Omicron variant does suggest that employers are going to have to remain agile to protect their operations and meet the heightened expectations of their people.
The lack of immigration over the last 2 years has led to labour shortages in some sectors. As business activity increases significantly with the removal of border restrictions, there are strains in the labour market.
This related to the industrial relations system, and enterprise bargaining in particular. Efforts to reform the system during 2020 led to parliament considering a bill to improve various aspects of legislation in 2021. The bill was not passed. Despite widespread acknowledgement that the system is in need of repair, no consensus has emerged as to how that ought to occur.
This means care is needed when approaching enterprise bargaining. 2022 is shaping up to be an interesting year, with a Federal election required by May 2022. It is clear that the Labor Party will continue its campaign around insecure work including in relation to the gig economy, casual employment and labour-hire arrangements. The current enterprise bargaining system will also be the subject of further reform proposals.
Although the Coalition Government has so far been unable to implement many of its proposed reforms to the industrial relations system, it remains to be seen whether it will push a significant reform agenda as part of its policy platform.
The Respect@Work Report prepared by the Sex Discrimination Commissioner in response to the #MeToo movement is part of the political debate. Although some of Report’s recommendations have been implemented, there remains a live debate about whether further legislative changes are required to effect cultural change and improve workplace behaviour.
The Respect@Work Report also contains many important lessons for employers. We expect that this will remain an area of focus into 2022, with employees increasingly expecting more from employers in how they prevent and respond to workplace respect and safety issues.