The need for companies to be able to sign documents electronically has become more apparent than ever during the COVID-19 pandemic. With that, the Federal Treasurer has implemented some temporary, progressive changes to the signing provisions contained in the Corporations Act 2001 (the Corps Act).

Enter the Corporations (Coronavirus Economic Response) Determination (No.1) 2020 (the Determination), which now allows for company officers (i.e. Directors) to sign agreements and deeds in electronic format.

Previously, the Corps Act required company officers to physically sign a document in order for it to be valid and legally binding. Now, the Determination makes it possible for company officers to:

1. sign a document in counterparts (eg. the officers do not need to sign the same copy); or
2. use an electronic communication which reliably identifies the person signing and indicates the person’s intention in relation to the document. 

The usual requirement remains that if there is more than one director of a company then two directors are required to sign, but the Determination makes it possible for this to occur from a (safe) distance.

Further, if electronic signatures are being used (i.e. copied and pasted signatures, signing using a stylus or finger on a tablet or laptop or DocuSign) the relevant thresholds will also apply. This includes:

1. ensuring that the electronic signature is reliable as appropriate in the circumstances in order to identify each person signing the document; and
2. that it is clear that it was the intention of each party who signed that they actually intended to sign the document.

Do not get too used to this process, however, as the changes are only temporary and intended to assist businesses in the wake of COVID-19.

The changes implemented by the Determination are only in effect for a six (6) month period commencing from 6 May 2020.

These changes will no doubt assist in the efficiency and practicality of company execution of documents, so here’s hoping the changes are here to stay but you will need to stay tuned to find out! We will be following the developments in this regard closely and as always will ensure that we keep our clients up to date on any permanent developments.

If your business needs any assistance navigating the changing landscape brought upon by COVID-19, contact the EL team today:

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In early June the Federal Government announced a $680 million HomeBuilder scheme to stimulate the construction sector as Australia begins the economic recovery following COVID-19. This scheme will allow eligible owner-occupiers to access a tax-free grant of $25,000 to build a new home, or substantially renovate their existing home from now until 31 December 2020.

To check whether you are eligible, click here to view the HomeBuilder Frequently Asked Questions PDF.

Things to Consider

If you are interested in taking advantage of the HomeBuilder grant, there are a few things you should consider before you jump in.

Consider Your Timeline

One of the requirements of the grant is that construction begins within three months of signing the contract. Due to this tight time frame, it is important that you are organised and prepared, so you should consider whether you will have the sufficient time to have plans drawn up, obtain council approval and commence building within three months when signing the contract. From our experience, three months is a ‘tight timeframe’ to achieve the latter, so preparation is key!

Consider Your Finances

In addition to the HomeBuilder grant, you should consider whether you may be eligible for other grants, which may include the first home owner grant and the regional home building boost grant. You won’t be able to use the grant in your initial deposit as it is expected that it will take some time for it to be awarded. As such, you will need to ensure you have sufficient financing for any initial costs that you may have.

Choose Your Builder Carefully

It is very important that your builder is registered or licensed, otherwise you will not be eligible for the grant. You also cannot do the building work yourself as an owner-builder, or engage family or close friends. When selecting a builder, you should also review their proposed prices to ensure they’re reasonable and that you aren’t being ‘ripped off’ by builders capitalising on the HomeBuilder grant. Be on the lookout for builders who only commenced operating following the HomeBuilder announcement, as they are more likely to be taking advantage of the scheme than longstanding builders. Lastly, always make sure that you perform a QBCC license search on your builder, as this search will show you:

• the date your builder became licensed;
• the value of projects your builder completed since inception, and each financial year; and
• whether the QBCC has had to take any disciplinary action against the builder, such as notices to rectify, issuing of defect notices etc.

Review Your Construction Contract Carefully

It is very important that you do not simply ‘sign up’ to the contract your builder presents. The financial commitment you are making is likely one of the biggest in your life, and it should be treated with the same caution and respect as any other financial arrangement of that size. There are a number of key clauses that you need to pay very careful attention to, and a number of standard amendments you ought to request.

Make sure you check out our knowledge page in the coming weeks for our ‘Top 10 Domestic Construction Contract Clauses to Consider’ article.

In the meantime, if you would like to take advantage of the HomeBuilder grant and it feels like there is too much to consider, the team at Enterprise Legal can help.

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Employees covered by the Nurses Award 2010, Health Professionals and Support Services Award 2020 and Aged Care Award 2010 who are employed by residential aged care providers or are required to work in residential aged care facilities are now entitled to two weeks’ paid pandemic leave following a recent announcement from the Fair Work Commission. 

What is the Entitlement?

Permanent and casual employees engaged on a regular and systematic basis under the aforementioned modern awards are now entitled to take up to two weeks’ paid pandemic leave on each occasion they are prevented from working when:

• the employee is required to self-isolate or quarantine by government or medical authorities or their employer;
• the employee is required to self-isolate or quarantine following receipt of medical advice because they are displaying symptoms of COVID-19 or have come into contact with a person suspected of contracting COVID-19;
• the employee is isolating while they await their tests results;
• because of measures taken by the government or medical authorities in response to the COVID-19 pandemic. 

Are There Exclusions?

Yes, employees will not be entitled to access paid pandemic leave if:

• they are not covered by the aforementioned awards;
• they are able to work from home or remotely;
• circumstances dictate that they should access personal/carer’s leave (for example, if the employee was actually unwell, they would be entitled to personal leave);
• they are covered by an Enterprise Bargaining Agreement that does not expressly incorporate the aforementioned awards.
  Importantly, the leave is conditional on employees taking a COVID-19 test at the earliest opportunity. 

Employees requesting pandemic leave are also required to: · provide their employer with notice and the reason why they are taking the leave, as soon as practicable; and if required · provide evidence that would satisfy ‘a reasonable person’ that the leave is being taken for one of the specified reasons; and produce a medical certificate.

Employees are still entitled to workers’ compensation if they test positive for COVID-19 and their paid pandemic leave ceases, provided COVID-19 was contracted during their employment. 

What About Other Industries?

At this point in time it is uncertain whether or not this entitlement will be broadened to other modern awards and employers in other industries are understandably curious and nervous. The Fair Work Commission, in their statement, confirmed that the paid pandemic leave is in response to “The seriousness of the position in the aged care sector”, however time will tell if this will broaden further in the rapid changing times. 

If you have any questions or need any support with your workplace during these times, do not hesitate to contact EL's Principal Legal Advisor – Workplace Relations, Amie Mish-Wills:

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As discussed during our recent Workplace Relations Video, whether a private employer can direct its employees to get the COVID-19 vaccination is a complex issue, with the primary issue being whether or not an employer’s direction for staff to receive the COVID-19 vaccination is lawful and reasonable.

It is commonly understood that employers can direct their staff to do certain things as part of their employment and employees have a legal obligation to comply with their employer’s directions if those directions are lawful and reasonable.

What Makes a Direction Lawful and Reasonable?

A number of matters are considered when determining whether or not a direction is lawful and reasonable, including (but not limited to):

• the express and implied terms of the employee’s contract of employment;
• the nature of the employment;
• established custom and practice in the workplace, trade or industry; and
• the employer’s workplace health and safety obligations;
• the employer’s duty of care;
• the terms of relevant instruments (eg a modern award and enterprise agreement), and any applicable legislation.

Some examples of directions that might be given by an employer to an employee include a direction to:

• participate in a workplace investigation;
• undertake a medical examination for the purpose of assessing fitness for work;
• comply with work health and safety laws;
• stay away from work or work from home to prevent the risk of exposure to, or spread of a contagious illness;
• report misconduct;
• prioritise projects in a particular way; and
• adhere to a dress code.

In the case of a direction for staff to receive the COVID-19 vaccination, whether such a direction is lawful and reasonable will vary depending on the circumstances of the employer, employee, the workplace and the industry.

As discussed in our video, what is reasonable in the context of an aged care facility, will differ significantly from a marketing office and understandably, one size does not fit all.

Various factors may impact the lawfulness and reasonableness of a direction for staff to receive the COVID-19 vaccination, including:

• whether the employer’s genuine and reasonable work health and safety obligations dictate a particular response;
• whether the employee can reasonably perform the inherent requirements of their role without being vaccinated;
• whether the employer’s common law duties of care owed not only to the employee but their clients dictate a particular response; and
• whether there are legislated or government-issued directions in place that require compliance.

Employers also need to be mindful of whether or not the direction constitutes discrimination or an infringement on a protected human right.

What if it is 'Reasonable' and the Employee Disobeys?

Breach of the implied duty of obedience is by its very nature a breach of the contract of employment, and in principle will attract the normal remedies for breach of contract. More often, employers will consider the following options in response to a failure to obey lawful and reasonable directions:  respond to a breach by either:

• declining to take action;
• disciplining the employee.

Before taking disciplinary action against an employee for disobeying a direction, employers should always consider:

• Whether the direction lawful and reasonable;
• For directions contained in a workplace policy, was the employee required to read and acknowledge the policy? Was the employee trained in the policy and was it consistently enforced?
• Was the employee made aware of the consequences of failing to comply with the direction?
• Would the proposed disciplinary action be proportionate in the circumstances?
• Is the employee of long-standing with a good employment record?
• Can adjustments be made to the employee’s role or can they be suitably redeployed into a position where the vaccination is not required?

As you can see, the issue of whether or not an employer can direct staff to receive the COVID-19 vaccination is not straight forward and it is important employers navigate this issue with caution.

The issue has not yet been determined by the Fair Work Commission, and the matter of Glover v Ozcare [2021] FWC 231 may shed some much needed light on the issue if it proceeds to a formal decision as the employee, in this case, was dismissed after they refused to get the influenza vaccine on medical grounds.

Enterprise Legal's Workplace Relations team can assist with assessing whether or not such a direction is lawful and reasonable based on your workplace, employees and industry. Our team can also assist with issuing and managing the rollout of such a direction, assisting you every step of the way.

Reach out to us today:

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A childcare worker in Gladstone was dismissed from her role at Goodstart Early Learning (Goodstart) following her repeated refusal to get the flu vaccine, with the Fair Work Commission finding in favour of her former employer in the case of Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156.

Background:

Goodstart had a workplace policy requiring employees to be vaccinated against influenza, stating that vaccines were “mandatory” for employees. Despite this policy, the policy contained an exemption for employees who had medical conditions preventing the administration of the vaccine. Ms Barber repeatedly refused to comply with the policy on the grounds that she suffered from coeliac disease, had suffered an adverse reaction to a previous flu vaccine, and had a “sensitive immune system”.

In attempting to verify Ms Barber’s claims, Goodstart offered to pay for various medical appointments, although following this process, it remained unclear whether Ms Barber was precluded from obtaining the vaccine. In fact, the Commission found that Ms Barber submitted two medical certificates from different medical practitioners, neither providing a “substantive” medical reason justifying her refusal to comply with the policy.

Furthermore, it was noted that Ms Barber was unable to find a doctor willing to complete Goodstart’s pro forma medical certificate which required the doctor to mark a box if they believed her medical condition would place her at an increased risk of an adverse reaction to the flu vaccination. Given that there was an absence of medical evidence to support her concerns, it was held that her refusal to obtain vaccination was more akin to a “conscientious objection” that did not excuse her from the obligation to comply with the policy.

Is a Mandatory Vaccination Policy Lawful and Reasonable?

In her continued refusal to comply with the policy, Ms Barber failed to comply with a lawful and reasonable direction to obtain vaccination. The Commission considered that Goodstart had legal obligations under workplace health and safety legislation to ensure the health and safety of the children in it’s care in addition to employees, with mandatory vaccinations being the most effective way to reduce the risk of transmission of influenza throughout the facility. The Commission also considered that the policy provided employees to be exempt from the vaccination on the provision of sufficient medical evidence, which Ms Barber was unable to do.

The Commission were of the view that Ms Barber worked in a highly regulated industry and was in direct contact with children who did not have fully developed immune systems and were not old enough to be vaccinated. It was relevant to the Commission that the early childhood education industry has a long-standing history of requiring staff to be vaccinated against certain diseases and viruses, and that the vaccination policy implemented by Goodstart was not inconsistent with industry norms.

In determining that Ms Barber’s dismissal was fair, the Commission drew particular attention to the careful process followed by Goodstart in that the process took a number of months and provided the employee with multiple opportunities to provide additional information and to respond to their concerns and requests.

Can Other Businesses Introduce a Mandatory Vaccination Policy?

The Commission’s decision confirmed that lawfulness and reasonableness of a direction for an employee to be vaccinated must be determined on the consideration of a number of factors, including:

1. the type of vaccine that is involved;
2. the type of workplace the employee works in;
3. the nature of the industry; and
4. the individual themselves, including whether any medical exemptions may be applicable.

While such a direction was deemed to be reasonable in the context of early childhood education where hands-on care is provided to vulnerable members of the community, it is unlikely that the decision could be applied more broadly to other industries or workplaces.

If you’re wanting to know whether such a policy would be applicable to your business or if you are considering enforcing or implementing a vaccination in your workplace, contact our dedicated Workplace Relations team today:

Amie Mish-Wills
Principal Legal Advisor – Workplace Relations

Anna Fanelli
Legal Advisor – Workplace Relations

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