Employee Relations Hot Spots For 2021.

Tim sat down with Aaron Goonrey, Workplace Relations Partner at Lander & Rogers, to get his insights on the areas he anticipates being important for HR and IR Leaders in 2021, as we emerge from the COVID pandemic.

1) How would you sum up 2020 from a Workplace Relations perspective?
I would sum up 2020 as “adaptability in challenging times”. The impact of COVID-19 meant that employers and HR practitioners were faced with new challenges and compelled to adapt. Many businesses were forced to work from home and rapidly facilitate a remote working environment. While those who could not work from home had to adapt to government restrictions, lockdowns and implement ‘COVID safe’ practices. It was a year that transformed workplaces and business practices and has changed the future of work for many people permanently.

A significant focus throughout 2020 was the importance of upholding employee minimum entitlements in the face of business challenges. These included navigating work health and safety requirements during a global pandemic, both in the workplace and at home, and balancing employee hours of work, pay and leave entitlements while dealing with business uncertainty.

The Australian Government’s JobKeeper scheme was crucial in this regard, by allowing employers to alter their employees’ duties and hours of work while also providing wage subsidies, in order to mitigate the overall economic impact of the pandemic on workforces across Australia.

We also saw significant case law developments in Australian workplace relations, such as the Mondelez case confirming the value of a “day” in the calculation of leave entitlements, and the Workpac v Rossato case reminding us how to properly characterise casual employees and their entitlements. These developments and the IR omnibus reform bill will be at the forefront of employers’ minds when developing business plans for 2021.

2) What ER/IR trends are you seeing at the start of 2021 that are different to other years?
This year businesses are trying to take a proactive rather than a reactive approach as a result of the lessons learnt in 2020. With restrictions slowly easing, businesses are preparing for a return to the traditional workplace and also trying to balance the adapted changes introduced last year. There is a greater emphasis on the importance of business continuity plans going forward, as last year some businesses were caught out with inadequate procedures in place when they were forced to quickly implement alternative arrangements to allow their workplace to continue functioning.

Employers are preparing for the introduction of changes under the IR omnibus reform bill, which proposes reforms that will affect casual employees, approval of enterprise agreements, flexible working provisions, and criminal penalties for wage theft. In addition to these changes, employers should be reviewing their workplace practices in line with case law developments mentioned, as well as and their decision making processes involving employees following the Technology One case.

3) Are there any specific Covid issues that Employers should be considering right now to be proactive?
Firstly, employers should be considering their business’ approach to the rollout of a COVID-19 vaccine once it becomes widely available in Australia. There are many factors to consider when deciding whether to implement a policy of mandatory vaccination in the workplace, but in summary the three main considerations for employers are:
1. whether it is lawful and reasonable to direct employees to be vaccinated;
2. their duties under work health and safety legislation; and
3. whether mandatory vaccination may result in breaches under discrimination legislation.

It is important to remember that employers have a duty under the work health and safety legislation to provide a safe workplace for employees and, as far as reasonably practical, protect the health and safety of their employees and other people who may be put at risk from their business.

However, an employer decision to make vaccination mandatory for employees should not be made without ensuring that such a direction to employees is lawful and reasonable. Employers will need to consider the applicable circumstances of their workplace and their employees’ risk of exposure to determine whether compulsory vaccination is reasonable, noting that some employees may object to vaccination.

For example, if a workplace involves minimal interaction with clients or the public and other measures may adequately protect employees without vaccination, it may not be considered reasonable to require that all employees must be vaccinated. Otherwise, if an employer requires mandatory vaccination in circumstances that may not be reasonable, employers may be at risk of discriminating against employees who object to vaccination. It is likely that most employers will need to allow an exemption from mandatory vaccination on medical or religious grounds, or request that employees be vaccinated without enforcing it as a mandatory requirement.

Employers should consider the safety and wellbeing of employees beyond the issue of vaccination, as the importance of mental health has also been emphasised during the pandemic. It is widely accepted that the events of 2020 lead to an increase in the incidence of mental health issues such as anxiety and depression, due to a combination of factors including social isolation, threats to job security and economic strain. Employers’ duties to protect the health and safety of employees extend to their employees’ mental wellbeing, so an important topical consideration for employers may be improvements to workplace culture.

There has been recent media attention surrounding the unionisation of workers in Australian tech companies who are calling for changes to widespread negative company culture in that sector. Issues such as unpaid overtime, fatigue, harassment, discrimination and bullying, have caused Google workers to organise a global walk out and seek support of activists and unions to push for better conditions.

As businesses prepare for a return to traditional workplace, employers may also be considering changes that may be required to the physical environment of their workplace in the context of COVID safe practices. For example, in open plan workplaces this may involve distancing between workstations, separating workstations with Perspex screens, or limiting capacity numbers. Alternatively, some businesses may seek to return to traditional offices as opposed to open plan set ups to allow for social distancing.

4) What are your top predictions for 2021?
Now that we have seen remote working implemented as a viable business option, I anticipate that flexible working arrangements will continue in many workplaces as the new norm. As more people now have the facilities to work remotely and are spending more time at home, we may also see an increase in freelancing and entrepreneurship – employees doing other things with their ‘extra’ time.

Some businesses may begin to focus on other ways and methods of tracking outcomes and outputs for roles – as a way of measuring employee performance in the absence of physical presence at work.

I expect that the increase in flexible working may lead to more employees selling-up in metropolitan areas and moving to greener pastures in regional areas (Byron Bay seems to be quite on trend at the moment!). There may be a move from CBD hubs to regional areas, as the culture of operating out of a CBD may not be considered essential for some businesses. Similarly, the physical workplace itself may change as new designs and innovations are implemented to achieve COVID safe practices and pandemic-proof workplaces in the future.

The culture of remote working may cause an escalation of claims involving alleged lack of civility online, as workers develop a better understanding of office etiquette in the new norm of a ‘virtual’ workplace. Employers may need to consider whether additional training is necessary for employees continuing in virtual working arrangements for the foreseeable future.

Finally, and this isn’t a prediction rather a reality – there will be changes to the workplace relations landscape such as the Industrial Relations omnibus reform bill. There are also quite a few current cases at the moment involving excessive hours of work and wage theft, unlawful discrimination, and significant damages being claimed as a result of adverse action. Needless to say that 2021 is shaping up to be just as interesting as 2020 was!