Transitioning back to work – what are some issues and how do you manage the process?
Moving back to “normal”
How has your start to the year been? Whilst we are off to a flying start, there remains much uncertainty to navigate. How do we transition back to a hybrid workplace and support our team against a very different COVID landscape? How do we foster a positive workplace culture in light of the toll of the last two years? We are all trying to return to “normal” whilst recognising that the impact of the pandemic on our people, our workplaces and our cities is still keenly felt.
In Melbourne for example, there are still many people working from home, and when they do gradually return to work, there will be all sorts of re-acclimatising and organisational accommodations required.
Some staff are assessing whether they want to return to an office culture that may have not met their needs pre-pandemic. Some people are seeking out greener pastures, and others are simply burnt out and looking for a new start somewhere else.
Getting staff motivated – hybrid models and sharing our experiences
This state of flux is of course unavoidable, and yet will require a lot from managers and organisations. How to keep people motivated? How to manage staff who are not motivated or who are burnt out, when organisations are ready to ramp up? How to do this successfully when you can’t sit in the same room with someone. Or even how to do it well when you are in the same room! These are some of the challenges we are observing and helping our clients navigate.
At Justitia we are looking forward to re-establishing ourselves in our CBD office and bringing our team together in a hybrid model, working some days in the office and others from home. This allows staff to manage their time and commitments effectively.
We intend to share some of our insights as we undertake this transition. We plan to share in more detail some of our advisory work in the areas we are known for. You will see more communications from us about how we help our clients achieve efficient outcomes aligned with their organisation’s values. We will also be sharing some of the good work undertaken by members of our Justitia community who are working in the not for profit or professional services areas.
There have already been some significant legal developments this year.
Court decisions on vaccination – managing the unvaccinated and those without booster shots
There continue to be decisions handed down through our courts that provide further guidance about what employers can require of staff when Public Health Orders or Directions require all to be vaccinated. It will be interesting to see when the Government in Victoria expands the meaning of “fully vaccinated” to encompass a third dose, whether it also mandates this for additional industries. We expect to be continuing to advise about what employers are to do to create a safe workplace when staff are not vaccinated or have not received the recommended booster. These situations will require ongoing close attention by employers to avoid them turning into litigious claims or attracting a template letter from the Red Union.
The Religious Discrimination Bill
There has been a lot of discussion about the Religious Discrimination Bill. Protecting one part of the community from discrimination, whilst creating circumstances for discrimination against another group, was always going to be a fraught legislative exercise. You may have noticed that a lot of employment law practices did not spend a lot of time discussing this Bill, possibly because we had an inkling that it was unlikely to succeed. We do not anticipate that we will hear about this Bill for some time, however this will be dependent on the outcome of the Federal election, likely to take place in May.
The High Court has handed down two important decisions that create clarity for organisations, and their lawyers, when drafting contracts that govern employment and contractor arrangements. Whilst Courts have always looked to the terms of a contract, they have also in some cases looked at the ‘totality of the relationship’ and the circumstances after the contract has been signed, to determine how to interpret the contract. Some judges have considered the inequality of bargaining power between the parties in assessing the actual legal relationship between the parties. What these two cases now confirm is the importance of a clear, well-drafted and comprehensive contract which will be the starting point for any determination. Although the cases emphasise the importance of the contract, merely labelling a person a contractor is insufficient if the rights and obligations under the contract more appropriately match that of an employee and a Court will still need to examine the ‘totality of the relationship’ in the absence of a contract.
In light of this further clarity, we remind you to review your contracts to make sure they achieve their purpose. Get in touch if you would like help reviewing existing contracts or we can draft new employment and independent contractor agreements.
Brittany Higgins and Grace Tame
We watched with interest the powerful addresses given by Brittany Higgins and Grace Tame to the National Press Club. Of most relevance to workplaces was Ms Higgins focus on the fact that many of the recommendations set out in the Respect@Work report by Sex Discrimination Commissioner Kate Jenkins are yet to implemented or responded to by the Federal Government. She and Ms Tame were clear that broad policy statements would not be sufficient, and that meaningful and immediate action was required to create safety for women at work, and also for children more generally.
At least one important legislative change did follow from the Jenkins report which gives employees who are employed in constitutionally-covered businesses (so not some government agencies, nor some Councils), the right to seek orders in the Fair Work Commission to stop sexual harassment. Justitia has not yet seen any of these types of claims in its practice.
Training for inhouse investigators
And lastly, we hope you saw our message last week about our training programme for inhouse investigators and others looking to refresh their skills on how to carry out a best practice investigation. You will find more information about this programme here.
Please get in touch if you would like to discuss any of these issues or require assistance at firstname.lastname@example.org.