Your questions answered

Dear Tina

My employer has told me that when the COVID-19 vaccine is rolled out all employees in our centre will need to be vaccinated. Can my employer make me get aCOVID-19 vaccination?

Merina

Dear Merina

Early learning and care employers have an incentive to want employees vaccinated, to protect children, parents and colleagues, and to avoid any legal liabilities of potential workplace COVID-19 transmissions. Can an employer insist on COVID-19 vaccination as a condition of employment? The answer for any workplace should be based on medical evidence. The ACTU has called for the Federal Government to clarify this issue by making public health orders which identify workplaces where COVID-19 vaccination will be mandatory.

There have been two unfair dismissal cases taken to the federal Fair Work Commission recently. One was an educator working in a large not-for-profit centre and the other an employee in aged care. Both involved employers in 2020 making an influenza vaccination a condition of employment. In both cases the employees lost their jobs for refusing vaccination.

The Fair Work Commission has not yet made a definitive ruling on the issue – a key principle will be whether or not an employee who does not wish to be vaccinated has refused to follow a lawful and reasonable direction in all the circumstances of the particular case.
Tina

References

https://theconversation.com

Cecilia Anthony Das Lecturer, Edith Cowan University

Kenneth Yin, Lecturer in Law, Edith Cowan University

Dear Danielle

I am an assistant working in a community kindergarten and I am worried as student numbers have been reducing over the last two years. If our kindergarten withdraws one of our groups, it means that only half of the staff will be able to stay. What things should we be looking out for if management decide they want to restructure our kindy?

Kumi

Dear Kumi

2020 was a difficult year for the early childhood education sector. This has had serious implications for the ongoing employment of our members.

Whenever change occurs in a workplace, an employer is obligated to ensure genuine consultation takes place prior to any final decision being made. There are consultation provisions in all collective agreements and also in the applicable awards that must be complied with. The employer needs to give everyone the opportunity to provide feedback and give genuine consideration to that feedback.

We have seen some kindergartens take advantage of employees during restructuring processes. In a recent dispute, an employer tried to merge the tasks of different roles to avoid employing the full complement of staff. While members may be prepared to be flexible, it is essential that the demarcation of duties between each role remains clear.

When we look at matters involving structural change, we want to know a number of things:

  • Can the employer demonstrate a genuine need for these changes?
  • What alternatives has the employer explored?
  • Has genuine consultation with staff and our union taken place and has their feedback been taken on board?
  • What processes are proposed to introduce the changes? Are these processes equitable?
  • If redundancies are offered, are they genuine? Is there really no alternative?

Where members are made redundant by changes in their workplace, they must be given all entitlements. Our members working in kindergartens can get caught by the small business exemptions in the Fair Work Act (fewer than 15 employees). One of the significant benefits of having a collective agreement in place is to ensure employees have access to clauses about genuine consultation, reasonable change management and adequate redundancy entitlements.

If you have experienced change in your workplace or have concerns about what your kindy or centre may be doing to manage change, contact our union office for further advice.

Danielle