Although 2020 has taught us that we can never know what is in store, there are a number of industrial relations and employment law issues that we consider will be front and centre in 2021. While it is unclear how these issues will unfold over the course of the year, employers are encouraged to keep the following in mind when planning and managing their workforce.
Working from home and return to the workplace
Many employers will already be planning for their workforce returning to the physical workplace. The Victorian Government has announced that from Monday 18 January 2021, up to 50% of workers in the private sector and 25% of public sector workers can return to the workplace. However, just speak to your circle of friends and you will get a mixed response as to whether people want to return to the office. Similarly, there is a varied approach from employers regarding WFH in 2021. Some are eager to get employees back into the office, citing issues with workplace culture, collaboration and roles that, although physically possible to be worked remotely, are nonetheless ideally office based positions.
Some employers, however, are seeing the benefits of employees working from home, such as an increase in productivity or reduced overheads due to less physical office space required. Many employers are adopting a hybrid model, with employees working across both home and the physical office on an ongoing basis. Furthermore, with the majority of employees expressing a desire to continue working from home to some extent, employers are recognising that greater flexibility will be required to attract and retain talent.
As a starting point we consider that an employer can give a lawful and reasonable direction to employees to resume working from the workplace. However, there are a number of factors that will affect an employer’s right to give such a direction. This will include any flexible working arrangements that may be made with employees in certain categories, such as with parents/carers or employees with a disability or heightened risk of serious complications if they were to contract COVID-19. Some employees may also be experiencing anxiety around taking public transport to work and employers will need to contend with whether, in all the circumstances, it is lawful and reasonable to direct the employee to work from the workplace. Whatever the concerns of your employees, employers will need to assess each employee concern on an individual basis.
Employers will also need to ensure that they have a COVID safe plan in place to meet their OH&S obligations before considering making any directions about returning to the physical workplace.
Requiring employees to get a COVID vaccine
As a means to encourage people to return to the office, employers are considering safety issues and whether they can require employees to get a COVID-19 vaccine. Whether you can require your employees to get the vaccine is dependent on the individual circumstances of your business and workforce. Some employers may be able to give their employees a lawful and reasonable direction to get the vaccine to protect high risk individuals, such as the elderly in aged care or patients in hospitals. However, there may also be an argument that employers can give a lawful and reasonable direction more generally to fulfil their OH&S obligations. This is currently untested in the Courts or tribunals and many employer grounds are seeking further guidance from the Government on this point.
However, the lawfulness and reasonableness of any direction to an employee to get the vaccine may also be impacted by the effectiveness of the vaccine and how the vaccine works. For example, experts at John Hopkins Medicine have said that while the Pfizer vaccine may prevent a vaccine recipient from getting sick, it is not yet known if the vaccine prevents the recipient from carrying and transmitting the virus. If a vaccine recipient can ultimately pass on the virus, an employer’s argument that it is a lawful and reasonable direction for an employee to be vaccinated may be diluted. With so much uncertainly in this area, it is definitely a case of “watch this space”.
Casual employment has been an issue for the past few years, especially since Workpac’s appeal case against Rossato. In Rossato the Full Court of the Federal Court confirmed that a firm advanced commitment of work suggested a permanent employment relationship rather than casual employment despite the contract being a ‘casual’ contract. The impact of this decision on employers is that some casual employees may be considered to be permanent employees and benefits such as annual leave will need to be back paid.
While the potential cost to employers of this decision is significant, the Rossato appeal case is expected to be heard by the High Court this year, which may alter the current law in respect of casual employment.
In addition, in December 2020, the Federal Government introduced a new industrial relations Bill which includes proposed new laws about casual employment. We do not expect the Bill in respect of casual employees to pass in full in its current form and will provide you with a summary of the proposed legislation in the coming weeks.
Employee wellbeing and engagement
Few would argue that 2020 was a hard and exhausting year. For many, the new year was a new beginning, when the challenges of 2020 could become a distant memory. With 2021 not bringing the immediate respite we had hoped for, employers will need to ensure that employee wellbeing remains front and centre of the organisation’s strategy in 2021. A failure to do so risks reduced employee engagement, as employees contemplate a year of further uncertainty.
A key factor impacting wellbeing and therefore engagement is fatigue. We have seen that many employees have not wanted to use their paid annual leave because they have not been able to use the time to travel or undertake leisure activities. However, the purpose of annual leave is to provide the employee the chance to rest while being paid. The need to take a break, from a wellbeing perspective, does not change because options for how to spend annual leave during a pandemic are fewer.
The additional issue we have seen is that some employees who have taken leave have still made themselves available to help out at work, because their activities while on leave have been limited to what they can do around the house. Therefore, employees have not been taking meaningful leave or having a proper period of rest; many are exhausted and the threat of burnout remains high. With employers also managing large annual leave balances, many will need to consider their ability to direct an employee to take a period of leave.
In these circumstances, employers should check their enterprise agreements or applicable modern awards, which may allow an employer to direct employees to take leave if certain criteria are fulfilled. Managers and team leaders should be aware of the signs of fatigue and burnout and take steps to manage both from a health and safety perspective. Employers should also look at implementing policies regarding contacting employees on annual leave, ensuring this is avoided wherever possible.
Another factor impacting engagement can be the remote working environment. Although many employees value the ability to work from home, it can result in increased isolation and a lack of connection to their colleagues and the organisation. When determining what the workplace will look like in 2021 and how remote working will feature, employers must ensure they are maintaining a meaningful connection with employees, regardless of whether or not they are physically in the office.
Other IR changes
We also encourage employers to keep a watching brief over other proposed changes to industrial relations and employment laws. As well as proposed changes to casual employment contained in a new Bill, which we have referred to above, there are proposed changes to enterprise agreements and Greenfields agreements (see our blog here) and modern awards (see our blog here). In addition, the new Bill proposes changes to enforcement in employment matters, including making it a criminal offence for employers who dishonestly engage in a systematic pattern of underpaying one or more employees. Justitia will keep our clients updated on these matters as they develop.
Just a small snapshot of things to have on your radar for this year. If you have any questions about anything in this blog, please don’t hesitate to get in touch.