As COVID-19 continues to significantly change workplaces and their conditions and practices, more and more employers are asking what they need to do regarding vaccinations and preparing to come out of lockdown.   Some employers have asked if individual flexibility arrangements, commonly referred to as IFA’s, would work with their employees. As IFA’s are growing more prevalent, and many businesses misuse them, it is essential for employers and employees to understand their rights.

What is an IFA?

An IFA is an agreement between an employee and employer that may change the terms of an employee’s award or enterprise agreement. An IFA may be used to change working hours, overtime and loading rates, and allowances, among other things. IFA’s can be implemented any time after employment has begun and can be terminated upon agreement by both parties.

How Are IFA’s Made?

The creation of IFA’s is regulated under Division 5 of the Fair Work Act 2009. IFA’s.  They can be requested by either the employer and employee and must be in writing and signed by both parties. They must be genuine agreements, meaning that both parties must voluntarily agree to the IFA’s terms. Hence, an employer cannot force signing of an IFA through threats to job security or inducements. 

It is the Fair Work Ombudsman’s position that employers must ensure that an IFA leaves an employee in a better overall position than they were in before the IFA. IFA’s are to be made on a case-by-case basis: one agreement cannot cover a group of employees.

Can IFA’s be misused?

Many employers have used IFA’s to benefit themselves and not the employee. Recently, a hospitality venue in Brisbane was fined $170,000 after it was found that IFA’s were used to supplement overtime pay and penalty rates with meals supplied by the venue. This is a perfect example of how an employee might be manipulated into thinking an IFA benefits them when it does not.

IFA’s and COVID

Whilst IFA’s are a valid tool you need to understand the shifting sands of the public orders relative to COVID to ensure they are the right tool for you.  There has been a lot of media coverage of whether an employer can mandate vaccination in the workplace.  

Currently, the NSW Government has mandated a minimum of one vaccination to be able to work, under the Public Health Orders guidelines, for Construction, Authorised, Care, Quarantine, Airport and Transport Workers.  Some other conditions, such as medical exemptions, also apply to these workers and further information is available at: https://www.nsw.gov.au/covid-19/health-and-wellbeing/covid-19-vaccination-nsw/covid-19-vaccination-for-workers

In other circumstances your vaccine status is protected to some degree under the Privacy Act 1988.  In short, an employer, with a duty of care to all employees, may wish to collect vaccine status.  The data collection must abide by all relevant privacy principles, most importantly, how the data will be used.  Further information can be found at: https://www.oaic.gov.au/privacy/covid-19/covid-19-vaccinations-and-my-privacy-rights-as-an-employee/

There has also been a bill introduced into NSW Parliament, which would mandate that employers who require their staff to be vaccinated, outside of those covered under the public health order, will become liable at law should the employee suffer any adverse effects.  This liability would be until the employee’s death.  While the Bill is making it’s way through Parliament, business owner’s should make contact with their local State MP to outline there views on this Bill.  

What Are an Employer’s Rights?

It is unlikely that an employer would use an IFA to require an employee to vaccinate as it is unrelated to an award or enterprise agreement. However, IFA’s are currently being used to introduce mandatory isolation periods and pay, COVID-19 impact allowances, COVID-19 safety measures such as mask wearing/sanitising/remote working/rostered in office time, and working from home rates/benefits. 

Employees need to understand the terms outlined in COVID related IFA’s and make sure they provide a sufficient benefit before contracting through them.

Examples of the types of COVID-19 related IFA’s currently being implemented into many businesses can be found at: https://csialtd.com.au/2020/08/25/covid19ifaguidelines/ 

Where an employer requires an employee’s vaccination data to implement workplace health and safety measures, for example to:

• Protect colleagues by outlining who is rostered to share, how many days an employee can be in the workplace, personal protection measures in the workplace
• Outline a testing regime e.g., every 72 hours.

These types of measures need to be communicated to all employees as the workplace policy position under Work Health and Safety guidelines.

While you can implement an IFA, any IFA must be made under genuine agreement to benefit the employee.   If an IFA is proposed and negatively impacts the staff member’s position or is not understood, the employee does not have to sign it.   An employee can contact the Fair Work Ombudsman to discuss your position and get further information and assistance.

Furthermore, if you believe that an IFA might be beneficial to you and your employer, do not be afraid to bring it up. IFA’s can be an invaluable tool that might improve job satisfaction and productivity. 

NB: Nicholas Fisher is an intern at law under the supervision of Katherine Hawes, the Principal Solicitor of Digital Age Lawyers.