Welcome back to all our readers and best wishes for 2022!
Now is a perfect time to reflect on the goals that your business would like to achieve in the coming year and how best to align your staffing needs, employment practices, and HR functions with those goals.
- Employee Engagement Following our article in late 2021 regarding the ‘Great Resignation’, in this alert, we examine ways for employers to continue to engage employees and to provide a work environment that gives purpose to employees; particularly where some employees had been stood down during 2020 and 2021 and have had time to reflect on their career objectives and desired lifestyle.It is an old adage, but remains relevant and for the most part true. A successful business really depends on the commitment and quality of the people it employs. So how can employers ensure they retain good staff, keep them engaged and motivated and navigate the fluid work environment created by the pandemic?We set out some suggestions:
- Focus on what is achievable for the next 12 months and communicate the business goals and strategy to employees;
- Be open with employees regarding some of the challenges that may face the business and invite them to assist the business in meeting those challenges;
- Review the ways the business has incentivised staff in the past and consider whether innovation in this regard may assist in staff retention and motivation;
- Be more rigorous with employee feedback and performance management so employees feel valued and relevant;
- Provide greater flexibility for employees to work from home whilst remaining engaged through group exercises and activities, possibly over Zoom or Teams;
- Embrace empathy – it is undeniable some people have been very negatively affected during the numerous lock downs and the prudent employer should be cognisant of that vulnerability. Less rigidity and greater flexibility are key considerations in supporting such employees and even those employees who are feeling less vulnerable will notice and appreciate the support afforded to their colleagues;
- Respect boundaries – now that more employees are working a hybrid work model which includes remote work, it is important that employers give careful thought to how this will operate long-term and the challenges this model presents. One such challenge is to ensure employees remain engaged with the business, are getting appropriate support and training and their home life is respected; and
- Strategize workflow and ensure employees remain enthusiastic and engaged – given the challenges posed by Covid-19 and its impact on work and how we work, many employees are feeling disengaged and despondent. Prudent employers will prioritise reinvigorating the workforce and reengaging now that the pandemic is moving into a more endemic phase.
- The Use of Stand Down Provisions in the Fair Work ActThe Omicron variant of Covid-19 has caught many people, including the business community, off guard. Many employers are now facing staff shortages because employees are forced to isolate having contracted infection or are close contacts with positive case. Many people are also very wary of now getting sick and have in effect chosen to stay at home rather than venture out.These difficulties have been particularly onerous for a number of industries including hospitality, retail, and service industries. These sectors face the ‘triple threat’ of staff shortages, lower patronage due to community weariness of being in public spaces, and cycles of closure and re-opening, leading to an unsustainable reduction in turnover.Now that schemes like JobKeeper are no longer in operation, some employers are faced with the decision as to whether partial operation is viable or whether temporary shut-down of operations is appropriate. However, many do not want to risk losing their employees or making employees redundant, in the hope that the current circumstances will be temporary. As such, many employers have sought to stand down employees who cannot be gainfully engaged. However, can employers do so in reliance on section 524 of the Fair Work Act 2009 (Cth) (“FW Act”)?
Section 524 of the FW Act allows employees to be stood down in circumstances where employees cannot be usefully deployed as a result of circumstances for which the employer cannot be held responsible. When faced with government mandates that certain businesses cannot open, or trade in any capacity, employer’s reliance on section 524 creates little controversy. However, grey areas exist where an employer chooses not to operate, or operate albeit in a reduced, or limited capacity, and certain employees are stood down whilst others enjoy paid work. This really then begs the question – are the employees not able to work because of a circumstance outside the employer’s control? A decision to close the business because it is not viable is not one that is recognised by section 524, and employers who then rely on this provision to stand down staff without pay may be risking a backpay claim.
In circumstances where only some staff are stood down and others not, unless there is a clear and unequivocal reason to draw a proper distinction between the two groups, the employees stood down may well have claims that the stand down is unlawful. Employees unilaterally stood down may also have valid claims for constructive dismissal or redundancy; and could have the ability to commence unfair dismissal proceedings.
If an employer has no real option other than to reduce staffing levels or close premises and wishes to do so temporarily (and as such does not want to make employees redundant) then it must consult with the affected employees regarding the decision to stand them down. Such stand down must be by consent and should not rely on the provisions of the FW Act. Employers should make clear the reason why this may be the only option to save the employees jobs and also outline avenues that may be available to them, such as their use of any available leave or time in lieu or any government assistance that may be available to them whilst stood down without pay.
Without consultation and consent to stand employees down, or reduce their hours or other terms of employment, the employer may well be creating a significant legal risk to the business. We recommend that any agreement by employees to effect changes to their terms and conditions of employment be recorded in writing.
3. Business as Usual in an Unusual COVID Environment
It is noteworthy that whilst the country re-opens for business and State governments tinker with mask mandates and QR code sign-ins to monitor community infection rates, there is an expectation that customers and patrons will demonstrate to businesses that they have received, at least, two vaccinations against COVID. However, this is no longer a requirement for most businesses. So where does this leave employers who wish to mandate vaccination for their staff?
We have written extensively about this topic last year. The issue remains one to be determined on an employer by employer basis. As long as the direction for staff to be vaccinated is reasonable, then it will be considered lawful. As such, employers should ensure that if they wish to issue such a mandate, they have a documented policy in place setting out the requirements, that they have consulted with staff regarding the vaccination mandate and have considered the reasonableness of any such direction and the impact on individual staff members.
However, given the current omicron environment and general public acceptance of vaccination, it is more common now for employers to require their employees to be vaccinated, and this is becoming the norm.
4. The Modern Slavery Act becomes law as of 1 January 2022
After stalling for three years, the amended Modern Slavery Act 2018 (NSW) will finally become law on 1 January 2022.
The law establishes a new position of an independent Anti-slavery Commissioner, who will have advisory and advocacy functions, and the power to refer information to the police. The amendments repeal mandatory reporting provisions that required commercial organisations with an annual turnover of more than $50 million to report on the risk of slavery in their supply chains. However, it is important to note that businesses in NSW with a consolidated revenue of at least $100 million in the financial year will continue to be subject to the Federal Modern Slavery 2018 (Cth) Act meaning that a modern slavery statement is still required in accordance with that Act. The ability for courts to make “modern slavery risk orders” has also been repealed.
5. Wage Theft
The Fair Work Ombudsman continues to take a strong stance against underpayment of wages to employees. In this regard, many companies continually fail to properly classify workers, pay overtime, penalties and/or meet superannuation contribution obligations. Wage exploitation particularly remains a serious problem for migrant or vulnerable classes of workers, young workers and for those on working visas and in certain industries.
Over the course of 2020 and 2021 the Fair Work Ombudsman showed some leniency toward employers in this area, despite there still being a large number of businesses who were publicly shamed for wage theft; Woolworths being amongst them. However, the Fair Work Ombudsman has made it clear that businesses will no longer enjoy leniency for failing to have their house in order, even where they self-report underpayments. It seems clear that the identification of underpayments and record keeping obligations will continue to be a major focus for the Fair Work Ombudsman throughout 2022.
Businesses, both big and small, need to take note of their obligations under the FW Act, and any applicable modern awards or enterprise agreements. The level of potential liability for repayments and civil penalties and the current prospect of criminal prosecution is very real and can be extremely costly. Accordingly, there is no better time to consider getting your house in order and ensure your business is complying with all minimum wage entitlements and obligations.
In Summary
As we look over the year that was, and forward to 2022, employers should be taking time to consider what the above topics mean for their businesses while ensuring that they have implemented the changes necessary to make certain they are compliant going into a new year.
If you wish to discuss any aspect of this article or require specialist advice or assistance in relation to an employment law issue this year, please do not hesitate to contact us. Otherwise, we wish all our readers all the best for a successful, safe and productive 2022!
This alert is not intended to constitute, and should not be treated as, legal advice.