Workplace bullying is a dynamic and complex phenomenon, its causes are often multifaceted and its impact individual and varied. It can have a profound effect on all aspects of a person’s health as well as their work and family life, undermining self-esteem, productivity and morale. For some it can result in a permanent departure from the labour market and in extreme cases, suicide.

The impact on the employer and work colleagues can be just as damaging, as bullying affects morale and generally negatively impacts all the employees who are exposed to the conduct. In turn it affects productivity retention rates and causes a serious financial cost to the business.

Bullying in the Workplace

Prior to 2013, Workplace bullying has previously been addressed through work health and safety laws. Since 2011, the Commonwealth and most states have adopted the national model for work health

In 2013, amendments to the Fair Work Act 2009 (Cth) (“FW Act”) conferred power upon the Fair Work Commission (“FWC”) to make (retrospective) orders to stop bullying from 1 January 2014. Where an individual or group of individuals repeatedly behaves unreasonably towards a worker or a group of workers at work and the behaviour creates a risk to health and safety, application can be made to the FWC to make a ‘Stop Bullying Order’.

The House Standing Committee on Education and Employment (“Standing Committee”), in its 2012 report, noted that repeated unreasonable behaviour is behaviour that a reasonable person, having regard to the circumstances, may see as unreasonable (in other words it is an objective test). This includes behaviour that is victimising, humiliating, intimidating, or threatening.

The Standing Committee further noted that a risk to health and safety means the possibility of danger to health and safety and is not confined to actual danger to health and safety. The bullying behaviour must create the risk to health and safety; therefore, there must be a causal link between the behaviour and the risk.

Common examples of behaviour that could be considered as bullying are:

· Abusive, insulting or offensive language or comments;

· Victimisation;

· Spreading misinformation or malicious rumours;

· Undue criticism;

· Excluding, isolating or marginalising a person from normal work activities;

· Unreasonable work expectations;

· Withholding information that is vital for effective work performance, or denying access to resources such that it has a detriment to the worker; and

· Practical jokes or rites of ‘initiation’.

Reasonable management action conducted in a reasonable manner does not constitute workplace bullying.

Despite the existence of the federal jurisdiction to deal with claims of bullying whilst the employee remains employed, the primary obligation for an employer to ensure a safe place of work still applies. The work health and safety obligations of all employers is paramount, and an employer’s failure to

ensure a safe place of work may result in significant liability for that employer. Despite the real legal risk and resulting costs, the hidden costs of bullying behaviour to both the employee and the employer can be extreme.

Bullying when Working from Home

Along with these traditional examples that often occur within the workplaces, the COVID-19 pandemic has taken many of us out of the traditional workplace environment to instead work remotely from home. Yet, this environmental shift has, in many cases, led to an increase in instances of workplace bullying.

When working from home, workers can experience an increase in anxiety, emails can be misinterpreted, and increased self-isolation may create a climate where effective communication is undermined as teams that once worked together in close proximity of each other, now suffer the tyranny of distance.

The main bullying problems when working from home include:

· Misinterpreted emails;

· Isolation and loneliness causing workers to act and react irrationally;

· Miscommunication;

· Lack of human connection;

· Emotion and anxiety being deflected onto others;

· No firm boundaries when it comes to calls and/or other communications outside of business hours.

Furthermore, where instances of bullying are directed at a worker who is working from home, a place that they would normally associate with safety and ‘quiet enjoyment’, the effect can be heightened as the bullied worker has no ‘safe haven’ to retreat to at the end of the day.

It is likely that employers will be met with an increased number of bullying complaints surrounding email communication where workers are working from home. Emails do not always express the full intention or sentiment of the sender and can be easily misinterpreted – particularly where the recipient is already feeling vulnerable due to anxiety, isolation and a paucity of peer support.

The sudden increase in people working from home is new to many businesses and workers may not have adapted to the new communication norms. It is also much easier for a bully to ignore or isolate a worker if the employee is not in the same physical location. The failure to properly communicate and include team members in relevant discussions is facilitated by the physical separation occasioned by remote work.

Workplace bullies, like all bullies, tend to be opportunistic and may refrain from attacking their target in front of a group of workers where they themselves might feel peer pressure for their bullying behaviour. Workers who may have previously enjoyed the peer support of their colleagues in the workplace environment are now more at risk of being targeted when working remotely.

Effects of Workplace Bullying

Workplace bullying often results in significant negative consequences for an individual’s health and wellbeing, for example, depression, anxiety, sleep disturbances, nausea and musculoskeletal complaints and muscle tension. In turn, these negative consequences to individuals inevitably lead to negative consequences to business. Loss of productivity through poor morale, increased absenteeism, workers compensation claims, the need to alter reporting lines and/or separating workers from particular groups and time spent documenting and pursing claims combine to place a considerable financial burden on business.

Furthermore, in Victoria, an amendment to the Victorian Crimes Act makes serious bullying on offence punishable by a maximum penalty of 10 years’ imprisonment. These amendments were introduced following the suicide of a young woman, Brodie Panlock, who was subjected to relentless bullying in her workplace. ‘Brodie’s Law’ as it is known has not been enacted in other jurisdictions but has been examined by the various attorneys general.

What can Management Do to Prevent Bullying in the Workplace and when Working from Home?

Professionalism, respect and civility should be enshrined in workers’ contracts and part of their job description. Furthermore, businesses need to have up-to-date and robust codes of conduct policies in place that deal with specific examples of workplace bullying. Training and professional development are key tools in reminding workers of their individual and group obligations to their colleagues, managers and reports.

Whether in the office or working from home, training modules completed through face-to-face workshops can now just as easily be accomplished online, either as a group (through video conferencing) or one-on-one.

Morning and afternoon catch-up meetings (particularly by way of video conference) when working from home, is a good face-to-face way for managers and their reports to get an understanding of where each other are up to with respect to their work. However, in addition to these more formal interactions, virtual breaks are also a good way for employees to touch base with their colleagues, in an informal social setting for 10-15 minutes of ‘water cooler’ talk, and for managers to ensure that their reports are coping and not suffering from bullying or other inappropriate conduct.

Other ways to keep the work climate fun and positive through the use of appropriate digital technology might include daily or weekly activities. Trivia quizzes and other games are a good way of breaking up the day and preventing workers from feelings of isolation when working from home.

Bullying however is conduct not confined to online behaviour and an employer needs to ensure it is vigilant in stamping out any behaviours whether in the office or not that amount to bullying of co-workers. Unfortunately, bullying is one of the most prevalent work health and safety issues in Australia today and affects almost all workplaces. The cost of dealing with this type of conduct may be far outweighed by the cost of ignoring it.

We are Here to Help

We regularly advice clients regarding the implementation of robust workplace policies and training including in the areas of appropriate workplace conduct. If you require further information in relation to any aspect of this client alert or assistance in dealing with an employment law related issue, please feel free to contact us.

This alert is not intended to constitute, and should not be treated as, legal advice.

Whilst we are by no means in the clear with respect to COVID-19, Federal and State Governments have confirmed that the raft of expedient measures taken by the majority of Australians, such as social distancing, border closures, home isolation and so forth, has seen an ever decreasing reduction in infection rates to the point that on Monday 11 May, NSW recorded its first day of no new infections since lockdown commenced.

To that end, Government is eager for the economy to “reanimate” and many employers are desperate for their employees to return to work as soon as possible. So, what does the workplace look like after COVID-19 has so drastically changed the industrial landscape? In this client alert, we will be examining the challenges employers face in recalling their employees back to work and the necessary steps they should take to ensure employee and customer safety.

National COVID-19 Safe Workplace Principles and Creating a Safe Workplace

The National Cabinet have agreed upon a set of safe work principles to ensure that all workers, regardless of their occupation or how they are engaged, can enjoy returning to a healthy and safe workplace. These principles are generally concerned with employers, in consultation with employees, conducting an assessment of their unique workplace to identify, understand and quantify risks and to implement and review control measures to address those risks. Depending on the industry, that might include:

• staggering the employees’ return to work;
• staggering employees’ schedules and start/finish times;
• workspace arrangements; and
• health monitoring, cleaning, and hygiene measures.

For example, in many modern office workplaces, including call centres, through the use of more flexible technology, employers have moved to more communal work practices such as open plan workspaces, ‘hot desking’, ‘brainstorming’ rooms and shared recreation facilities. In those communal work environments, an employer might consider creating static workspaces (rather than hot desking) and stagger work schedules so that half the employees work, for example, a fortnight of Mondays, Wednesdays and Fridays while the other half work a fortnight of Tuesdays and Thursdays before swapping (to alleviate congestion in the office and allow for spaces between desks). Note that to keep the groups of employees isolated from each other to reduce the risk of infection, it is important that employers try to ensure that the different rostered employees remain on the sperate rosters so there is little risk of cross-contamination should an employee fall ill.

Employers might also consider temporarily denying access to shared recreation spaces to ensure that employees can abide by the ‘4 square metre rule’ and staggering employee lunch breaks (if taken in a communal break room) to maintain social distancing. With respect to travelling to and from the workplace, employers might encourage employees to commence and/or leave work earlier or later than normal so as to avoid congestion on public transport.

Of course, not all workplaces look the same and specific measures may need to be taken for different jobs. For example, employees who work in a confined workplace and who have more proximate dealings with customers in particular, ought to wear personal protective equipment and operate a regime whereby all employees attend to washing their hands with soap and water for 25 seconds every hour, on the hour.

Nonetheless, whatever the workplace or industry looks like, some constants will apply. For example, implementing and maintaining hygiene standards, attending to proper cleaning protocols and the monitoring of employee health is vital to maintain a safe workplace. If an employee presents for work and appears unwell, has a cough or sore throat or is displaying flu-like symptoms, they should be sent home immediately and directed not to return to work until they have availed themselves of a COVID-19 test or has been cleared by a medical professional. Preferably, that employee should know not to attend the workplace in the first place and in order to achieve this level of individual responsibility taking among staff, employers ought to consider amending their policies to stipulate clear expectations where an employee is unwell.

For further information, the Safework Australia website https://www.safeworkaustralia.gov.au/ has industry specific resources to assist employers in creating a COVID-19 safe workplace.

What if Employees Don’t Want to Return to Work?

For those employees who have been able to work from home these last couple of months, without the hassle of a commute or adherence to a dress code, and have developed a routine to perform their work whilst simultaneously doing a load of washing, the desire to continue to work from home may be quite strong. In addition to positive feedback from employees, employers have realised that reducing the number of employees at their premises may result in bottom line savings on the costs of commercial rent, cleaning, heating/cooling and other incidental office costs, as well as alleviating congestion in the workplace. These advantages must also be offset against the costs of a more sophisticated IT system to allow employees to work remotely and, as we discussed in our last client alert, the potential for employees to work less efficiently when not directly supervised.

However, what if an employee does not wish to return to the workplace? Employers will need to carefully consider the circumstances for any such resistance on a case by case basis, although need not agree to staff working remotely on a permanent basis so long as the reasons for this are predicated on reasonable business grounds. Obviously, for some employees (such as those that work in hospitality, retail, or logistics) they will have to return to the work premises to perform their work as it cannot be performed remotely but what of the employees who are still be able to perform the inherent duties of their role from a remote location?

In any case, the employer must have established their COVID-19 Safe Plan (as detailed above) before directing employees to return to work as it is obligatory for employers to provide and maintain a safe working environment in order to comply with work health and safety laws. Systems will need to be in place for maintaining effective hygiene, health monitoring and cleaning and employers will need to plan for the possibility of COVID-19 cases in the workplace and the procedures to follow in such an event.

Some employees may also have unique circumstances whereby a return to the workplace puts them at specific risk. For employees who suffer health complications that cause them to have weakened immunity, or those who live with and/or care for elderly relatives that are vulnerable, to require them to return to the workplace – particularly in circumstances that require them to commute via public transport – might create an unacceptable risk for their return at this stage of the pandemic. In these cases, employers will need to carefully consider directing those employees back to the workplace as to do so might be a breach of work, health and safety.

Nonetheless, if employers have taken the appropriate steps to ensure, as best as possible, a COVID-19 Safe workplace, where an employee fails to heed a reasonable direction to return to the workplace, the employer can take disciplinary action against the employee including up to termination of employment.

What are Employers not able to do?

For those of us who have cast a wistful eye towards the return of professional sport in Australia, a small selection of Rugby League players who have put their immediate employment in jeopardy by refusing to accept a flu vaccination, has created an interesting conundrum. At this stage, the Queensland State Government have required that any players entering the State to play Rugby League cannot do so unless they have received up-to-date influenza and pneumococcal vaccinations. So can an employer insist that its employees accept a flu vaccination, despite objections on moral or religious grounds, as a precursor to return to work?

An employer may well strongly encourage its employees to get the flu shot by providing free vaccinations to its employees. After all, whilst the seasonal flu vaccination will not protect against COVID-19, the threat of contracting both simultaneously has been described by health authorities as an extremely negative situation; however, unless the employer is a residential aged care facility, an employee cannot be forced to get a flu vaccination. As for employers who run residential aged care facilities, there are no exemptions for getting vaccinated on personal, cultural or religious grounds; the only valid exemption is for medical reasons.

In addition, most members of our community will be familiar with the push from the Federal Government urging Australians to download the COVIDSafe application on their mobile phones. Essentially, this app allows users to upload medical data if they have, at any point, tested positive for COVID-19 and, when their phones (which are presumably on their person) come into range of another person with the COVIDSafe app, a contact tracing record is created to allow health authorities to ‘follow the path’ of the virus in the event of another spike in infections. Despite it being voluntary to download and use the application, many employers will want their employees to download COVIDSafe to help protect the health and safety of their workforce, customers/clients and the wider community. Whilst an employer might actively encourage its employees to download and use the new app, it cannot force them to do so.

This means that while an employer may encourage their employees to download or use COVIDSafe, they cannot direct employees (or any other person) to download or use COVIDSafe, either on a personal mobile device or on a mobile device provided by the employer for business use and any pressure to do so, whether by positive obligation, or by adverse consequences, is unlawful.

We are Here to Help

Our team is currently engaged in a staggered return to the office and is otherwise working remotely but still servicing clients as usual including, with the aid of technology, via virtual meetings and conference calls. If you require further information in relation to any aspect of this client alert or assistance in dealing with an employment law related issue arising from the COVID-19 crisis, please feel free to contact us.

This alert is not intended to constitute, and should not be treated as, legal advice.

Unless you are an essential worker, just about all businesses have employees working from home. For many employers all their employees are now working remotely. In this client alert, we will discuss firstly the challenges posed by remote work and in addition, the very real opportunities it creates.

As we will be focussed on the challenges imposed by remote work and in particular when working from home, we will also look at some of the mechanism employers can adopt to address these challenges. If an employer has policies regarding working from home, it is important those policies are reviewed to ensure they are still practical and achievable in the current climate. It would be best to be able to ensure that all employees are working in a safe, secure and optimal location, however this is just not practical when so many employees have no choice but to work from home. It would also be ideal to ensure that employees are actually working when they are supposed to be working, but again parents with young or school aged children may now find this challenging. These are some of the issues we will examine.

Work Location and Home Set-up

It is trite to say that despite the fact that employees are not working in the employer’s premises, whilst working, the employer still has work health and safety obligations to its employees. To the extent reasonable, employers should make proper enquiries of their employees as to where they are working within their homes, whether that is safe and whether they have the necessary equipment to safeguard their health and wellbeing. If employees are expected to sit in front of computers or on the phone for long periods, the employer should be ensuring to the extent possible that the employee has a suitable chair and desk for this purpose.

If an employer has the requisite resources available, it may wish to assist employees by purchasing the necessary equipment for setting up an office at home. In usual circumstances, an employer that asks an employee to work from home, will normally bear the additional cost to the employee of doing so. In the current climate, it is possible to agree with your employee that they will bear this additional cost in return for the ability to continue working. The alternative being that other cost saving measures are put in place such as reduced hours, redundancies, stand down and the like.

When working from the employer’s premises, employees typically take an unpaid break for lunch and, depending on the industry, one or two paid or unpaid rest breaks during the course of the day. Where employees are working from home, they may not consider it as necessary to step away from the ‘virtual office’ and take a break. Where practical, employers should encourage employees, where they would ordinarily step out of the employer’s premises for a break, to still take that break to get some food and exercise, maybe take a walk around the block, and return to the ‘virtual office’ refreshed and reenergised.

Lack of Supervision and Oversight

A common issue with remote work is the inability for managers to have a clear understanding of exactly what employees are doing whilst working. This raises a challenge but also a fantastic opportunity. It will become quickly evident what type of employees are currently employed and how the culture of the business has either facilitated the practice of only working when watched or whether the employees are self motivated. It stands to reason that in circumstances where employees are working remotely, it is really important that they be very self motivated. This is an opportunity to foster such a culture. In order to do so, managers need to set clear and structured objectives and deadlines, and then inform employees of their expectations. It is important to have regular check in meetings in a structured manner. In this regard, we suggest that a team meeting be scheduled for the same time every day or twice a day (once in the morning and once at the end of the day). This is the forum where the team gets together virtually to discuss the days work, priorities and whether anyone needs help. It is also an opportunity for team members to share ideas and consult on issues. We suggest that individual virtual meetings then also occur once a day at a set time between the manager and their direct report. This will allow managers to ensure they know what the team members are doing and be able to properly offer assistance and support. It will also allow team members to get on with the work during the day with some confidence they are doing the work appropriately.

Access to Information and Collaboration

One of the biggest challenges of remote work is the relative difficulty in sharing information with colleagues as compared to talking with them when they sit next to you in an office. We suggest that if possible, employers try to recreate this by using technology which allows for instantaneous messaging. This means employees can quickly and easily send out a message to the team or individual team member when they want to ask something or can respond to another team member request or inquiry. For employers who have invested in electronically storing information, which is easily accessible, now is the time when that will pay off. For employers who have not been able to do so, and still rely on hardcopy information, this will be a useful time to assess whether that aspect of the business can be better managed. There are a number of technological solutions (including many solutions which form part of Microsoft Office) to sharing information and store information that can be made available to all team members.

Keeping Track of Workflow

I never thought I would be an advocate of team task lists. However, remote working makes this ability an essential. It is important for managers to be able to track what work is being performed and whether employees are on task. It is also useful for team members to have some visibility on what others are doing, when they are not as easily able to just ask the employees themselves. Again, the use of team applications which allow team members to upload task for all to see can be a very useful tool.

An article in the Harvard Business Review states that research has shown that the lack of “mutual knowledge” among remote workers can often lead to co-workers not being willing to give their colleagues the benefit of the doubt in difficult situations, and make interpersonal communications more fraught.

Social Isolation and Mental Wellbeing

There is ample research which shows that importance of social interaction to our mental health and general wellbeing. For most of us this interaction is gained in large part by our involvement in work and our relationships with work colleagues. One of the most direct consequences of working from home for many people is the increased social isolation coupled with loneliness this engenders. This is exacerbated now by the forced social isolation imposed by the government, which has restricted our ability to interact outside of work. This sense of social isolation can also directly impact on employees’ commitment to work and how committed they feel to the organisation and their role. It will be interesting to see the number of employees who resign from their current employment at the conclusion of the current pandemic. I am of the view that this number will be greater than what would be average for the organisation because of this very factor. It is therefore even more important now to ensure employees remain connected and embrace the organisation and its goals. This can only be done if the organisation and the individual employees’ managers stay connected and put in place real and ongoing initiatives to foster strong working relationships. This does not have to be solely work related. Some innovated organisations are organising social events via virtual mechanisms, such as a daily game or quiz, hosted by a different team member each day, as part of the morning meeting and end of week social drinks via videoconferencing platforms.

Avoiding Distractions at Home

It goes without say that most employers who are paying their employees to work from home, expect the employees to actually be working. How does this work in circumstances where, given the current crisis, it is likely the rest of the family (including young or school aged kids) are also at home? If the employee is also required to care for children or home school, how are they also going to be able to work? These are matters that must be dealt with on a case by case basis. Ideally, employees should have dedicated childcare and a dedicated workspace without distraction in order to properly focus on work. We consider that it is reasonable in the current climate that employers modify their work expectations to accommodate these realities.

However, if it is clear that the employee is actually unable to effectively work from home, then this is something that should be addressed head on. It is preferable to allow the employee to take leave whether with or without pay, or if you are able to stand them down under the JobKeeper regime, then to continue to have a significantly underperforming employee. This can only lead to resentment by colleagues and stress for the employee themselves.

Even though working from home is challenging and can make managing poor performance more difficult, it should not be an excuse to allow a poorly performing employee to continue to perform badly. If proper support structures have been established, and there is appropriate management oversight (even if it is remote), then poor performance should be addressed when it occurs. This will be made far easier, and less likely if managers are checking in daily with their team, and there are regular team meetings as discussed above.

We are Here to Help

We are currently working remotely but still servicing clients as usual including, with the aid of technology, via virtual meetings and conference calls. If you require further information in relation to any aspect of this client alert or assistance in dealing with an employment law related issue during the COVID-19 crisis, please feel free to contact us.

This alert is not intended to constitute, and should not be treated as, legal advice.

The global outbreak of COVID-19 has and will continue to have a material impact on businesses worldwide and in Australia.

The COVID-19 landscape and both the national and state government updates are regularly evolving and changing. As a result, many employers are now faced with the challenge of understanding their rights and obligations in managing employees during this health pandemic and in circumstances where their business has significantly reduced and/or the business has shutdown.

In this regard, we have had a number of clients contact us over this period seeking advice to understand their rights and obligations during the COVID-19 pandemic. There have also been a number of Fair Work updates released in order to deal with COVID-19 and changing employment circumstances.

It is crucial businesses are complying with national and state government directions in relation to COVID-19 and employers are reminded to keep in mind employee safety, employee rights and leave entitlements to ensure the best outcome for everyone involved.

Accordingly, in this client alert we cover an employer’s rights and obligations regarding shutdown, some of the changes being implemented by the Fair Work Commission and the government’s newly introduced stimulus package.

How does an employer lawfully reduce an employee’s hours of work and/or remuneration?

Outside of the specific changes to the modern award regime (mentioned below), in all other circumstances, an employer cannot unilaterally reduce an employee’s hours of work or remuneration. Any reduction of an employee’s hours or remuneration should be done by agreement and the agreement should be reflected in writing and signed by the parties.

Can an employer stand down its work force and what does this mean for your employees?

Section 524 of the Fair Work Act 2009 (Cth) (“FWA”) provides that an employer may stand down an employee during a period in which the employee cannot usefully be employed because of, among other things, a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

In these circumstances, the question then becomes whether COVID-19 is a lawful cause beyond an employer’s control. In this regard, section 524 of the FWA cannot usually be relied on in circumstances where there is merely a downturn of business or if a building is inaccessible. As such, the COIVD-19 impact on businesses and the question as to whether businesses can lawfully stand down their employees during the pandemic crisis remains untested by law.

However, it is important to understand there is a differentiation between businesses who have been affected by COVID-19, and as a result has seen a significant reduction in business (such as the retail industry) compared to where the government has sanctioned a lockdown or closure of certain business (such as hospitality, beauty premises, fitness centres and other sectors of the economy now restricted from trading). The latter would be considered a very clear example of circumstances beyond an employer’s control under section 524 of the FWA. However, the former may not qualify for such treatment. We note that the unions are challenging the shutdown by Qantas for this reason. In essence, where a business has decided to close stores and cease trading because of a significant downturn in business, this may not be sufficient to warrant a shut down sanctioned by section 524 of the FWA. Employers should tread carefully in this regard, and to the extent possible, provide as much notice of a shut down as possible and obtain employee consent.

Does an employer need to pay an employee during a stand down period?

In usual circumstances when an employer does not require work to be performed by a permanent employee, subject to an employee’s agreement, an employer will be required to pay the employee for the period.

However, in circumstances where an employer has a stoppage of work and stands down employees in accordance with Section 524 of the FWA, an employer is not required to make payment of ordinary remuneration to those employees for the period of the stand down. Notwithstanding this, employers must accrue for leave entitlements as per usual.

In addition, employees that are stood down by their employer under the FWA are still entitled to be paid for public holidays that fall during the stand down period. This is only if the public holiday falls on a day that the employee would have usually worked. It is important to keep this in mind with the upcoming Easter public holidays.

Can an employee ask to use annual leave during a stand down period?

A stand down is a drastic step for any workforce, and it deprives employees of an income for an unspecified period. Accordingly, inviting employees to access their accrued leave or long service leave entitlements as an alternative is a great benefit to both the employee and employer. For the employee, it allows them to continue to receive an income, and for the employer, it reduces the employer’s leave liability.

If an employee requests to use their leave entitlements, employers must not unreasonably refuse an employee’s request to take paid annual leave. What is considered ‘reasonable’ will depend on the personal circumstances of each employee and the employer’s business needs. In these circumstances, it is best if the employer and employee come to a mutual agreement in this regard.

Notably, an employer may refuse paid annual leave to an employee on reasonable business grounds. In this regard, if a business is financially unable to pay annual leave due to the downturn in business and financial impact COVID-19 has had on the business, this may be considered a reasonable business ground.

Changes to Modern Awards relating to COVID-19

The Fair Work Commission has announced proposed changes in relation to modern awards in response to the current and unique COVID-19 pandemic crisis.

Notably, on 1 April 2020, the Fair Work Commission (“FWC”) announced an intention to vary 103 modern awards across various industries and occupations. These variations will be in place until 30 June 2020 (unless extended). Accordingly, businesses should check if they are affected by the changes proposed.

The proposed changes include the following:

· Provide all employees who are required to self- isolate the ability to access two weeks of unpaid leave. This was a response to a concerns that if an employee was required to self-isolate because they have been exposed to someone infected with COVID-19, they did not have protection in relation to unfair dismissal and were not able to use their personal leave as they themselves were not unwell. It will not be necessary for employees in these circumstances to exhaust their paid leave entitlements before accessing the unpaid pandemic leave.

· Provide additional flexibility in respect of annual leave by allowing an employer and employee to agree for the employee to take up to twice as much annual leave at half the rate of pay. Notably, this provision has already been introduced in the Hospitality Award 2010, the Restaurant Award 2010 and Clerks – Private Sector Award 2010 (discussed further below).

In addition to the above, the FWC have made additional changes specific to the Hospitality Award 2010, Restaurant Award 2010 and Clerks – Private Sector Award 2010 as a result of the major impact COVID-19 has had on these industries.

In order to assist our clients, we have outlined the changes below:

Hospitality Award 2010

On 24 March 2020, the FWC made a determination to provide additional flexibility for employers under the Hospitality Award 2010 during the COVID-19 pandemic. These include:

Changes in duties:

Employers can tell their employees to do any tasks that they have the competency and skill to perform, even if those tasks are not in their usual classification or normal work. However, the task must be safe, and the employee must have at least the appropriate licence and/or qualifications to perform the task.

Hours of work for full-time and part-time employees:

Employers can now direct the reduction of permanent employees’ hours of work to an average of:

· Between 22.8 and 38 ordinary hours each week for full-time employees; and

· Between 60% and 100% of the guaranteed hours per week or over the roster cycle for part-time employees.

If employers want to reduce an employee’s hours, they need to discuss the changes with the employee, ensuring they follow the Award prescribed consultation rules about changes to rosters or hours of work and provide as much notice as practicable. It should be noted that employees will continue to accrue leave entitlements based on their ordinary hours before the employer reduced the hours.

Annual leave:

An employer can direct an employee to take annual leave in accordance with the updated award. Employers now need only to provide the employee at least 24 hours’ notice (rather than 4 weeks) and consider the employee’s personal situation. In addition, employees can take twice as much annual leave at half pay by agreement.

Restaurant Award 2010

On 31 March 2020, the FWC introduced the same changes as the Hospitality Award 2010 above to the Restaurant Award.

In addition to these changes, the FWC also provided that if a business is closing down for a period, an employer can direct their employees to take annual leave in accordance with the new changes by giving the employee at least 1 weeks’ notice (or any shorter period of notice which is agreed). If an employee does not have enough paid leave to cover the whole period of shut down, the employer can direct the employee to take unpaid leave for the remainder of the close down. The period of unpaid leave would continue to count as service for entitlements.

Clerks- Private Sector Award 2010

On 28 March 2020, the FWC introduced temporary flexibility provisions during the coronavirus outbreak for the Clerks – Private Sector Award 2010. These changes include:

Changes in duties:

Employers can tell their employees to do any tasks that they have the competency and skill to perform, even if those tasks are not in their usual classification or normal work. However, the task must be safe, and the employee must have at least the appropriate licence and/or qualifications to perform the task.

Minimum Engagement:

Part-time employees who have agreed with their employer to work from home can have their minimum engagement reduced from 3 hours per shift to 2 hours per shift. Casual employees who have agreed with their employer to work from home must be paid for a minimum of 2 hours’ work per shift (rather than 3 hours per shift).

Span of hours:

Employees who have agreed with their employer to work from home can make an agreement with their employer to change their span of hours to allow them to work between 6 am and 11 pm Monday to Friday, and 7 am and 12:30 pm Saturday. Employers do not need to agree with a majority of their employees to make these changes.

Hours of work for full-time and part-time employees:

Employers can temporarily reduce permanent employees’ hours of work to not less than 75% of their full-time hours or agree part-time hours immediately prior to the reduction. This may be applicable to the whole business or a section of the business. If an employer wants to reduce their employees’ hours, the employees will need to vote in favour of the reduction of hours. At least 75% of the full-time and part-time employees in the business or section of the business must approve the temporary reduction. There is a specific provision contained in the award which outlines the steps an employer must take to ensure the vote is considered ‘valid’.

Notwithstanding the above, an employer and employee can also individually agree in writing to reduce an employee’s hours.

In addition, an employee who has had their hours reduced can ask their employer for permission to find more work with another employer and/or access training, professional development and study leave through their employer. In this regard, an employer cannot unreasonably refuse an employee’s request to find alternative work and must consider all reasonable requests regarding training, professional development or study leave.

Employees on reduced hours under the changes will continue to accrue leave entitlements based on their ordinary hours of work prior to the reduced hours.

Annual leave and close down of business:

Employers can direct an employee to take annual leave by giving their employees 1 weeks’ notice (or any shorter period of notice that is agreed).

If the business is closing down for a period because of COVID-19 and an employee does not have enough paid annual leave to cover the whole period, the employer can direct the employee to take unpaid leave. The period of unpaid leave counts as service for entitlement purposes.

However, if the business is not closing, the employer can only direct an employee to take annual leave if the employee still has at least 2 weeks of annual leave left after the direction and the employer consider the employee’s personal situation. Employees can take up to twice as much annual leave at a proportionally reduced rate if their employer agrees.

Government stimulus package

On 30 March 2020, the Federal government announced the intention to pass legislation to introduce wage subsidies for businesses significantly affected by COVID-10, known as the ‘JobKeeper stimulus package’. The stimulus package is designed to preserve jobs and alleviate financial pressure on businesses in Australia.

In this regard, the JobKeeper payment is paid to employers by the Australian Taxation Office (ATO) who then provide the payment to eligible employees. The payment will be in the sum of $1,500 per fortnight (before tax).

In this regard, if the employee is employed, their prevailing wage or salary continues to apply and the JobKeeper subsidy serves as a supplement.

However, if the eligible employee has been stood down or re-engaged post 1 March 2020, the employer must pay, at a minimum $1,500 per fortnight, before tax. Superannuation contribution in these circumstances is discretionary.

The eligibility criteria for a business to apply to the stimulus package includes:

• turnover of less than $1 billion, which must have fallen by more than 30 per cent (of at least a month); or

• business has a turnover of $1 billion or more and turnover has fallen by more than 50 per cent (of at least a month); and

• the business is not subject to the Major Bank Levy.

The eligibility criteria for employees to benefit from the stimulus package includes:

• currently employed by the eligible employer (including those stood down or re-hired);

• employed by the employer at 1 March 2020 (or rehired);

• Available for full-time, part-time, or long-term casuals (a casual employed on a regular basis for longer than 12 months as at 1 March 2020);

• are at least 16 years of age; and

• Australian citizen, the holder of a permanent visa, a Protected Special Category Visa Holder, a non-protected Special Category Visa Holder who has been residing continually in Australia for 10 years or more, or a Special Category (Subclass 444) Visa Holder.

The JobKeeper subsidy will be available for 6 months unless extended by the federal government. If your business is interested in the JobKeeper stimulus package, you can register your interest on the ATO website.

We are currently working remotely but still servicing clients as per usual including, with the aid of technology, via virtual meetings and conference calls. If you require further information in relation to any aspect of this alert or assistance in dealing with an employment law related issue during the COVID-19 crisis, please feel free to contact us.

This alert is not intended to constitute, and should not be treated as, legal advice.

Earlier this year we published a client alert to provide some general advice to employers in dealing with employees’ leave entitlements in light of COVID-19. That was on 21 February and since then, the COVID-19 landscape seems to be changing on an almost hourly basis.

On 12 March the World Health Organisation declared COVID-19 to be a global pandemic and on 15 March, the Federal Government issued the direction that all persons arriving into Australia must self-isolate for 14 days otherwise they will be committing an offence under the various pieces of State Public Health legislation and will be subject to significant fines. Furthermore, the Federal Government has mandated that everyone practice ‘social distancing’ and has banned gatherings of over 100 persons indoors and over 500 persons outdoors. As of yesterday, the Federal Government has also shut the borders to anyone who is not a citizen or permanent resident.

Our clients are rightfully concerned about the impact these measures will have on their businesses and, moreover, how to deal with their workforce following the inevitable downturn of business. In this article we expand on that initial advice to address some of those key current concerns.

Overseas Travel / Recreational Cruising

Employers have a duty under work, health and safety laws to use their best endeavours to maintain a safe work environment for workers and customers alike. Travel or overseas travel, whether by air or sea, now presents an unacceptable risk to health and safety until further notice. Whilst employers should not be approving annual leave requests for employees at this time, if employees take pre-approved annual leave and travel overseas, employers will have no choice but to issue a direction to those employees that they will not be permitted to return to the workplace until undergoing a period of mandatory self-isolation for 14 days, before being cleared to return to work by a qualified medical professional per the Federal Government’s “Direction”.

Employees subject to the Direction will only be entitled, if applicable, to take annual leave or long service leave where such leave is available. Personal leave will not be payable to employees in mandatory quarantine as a result of recreational travel overseas except if the employee provides a medical certificate during this period.

Forced Self-Isolation of Employees

In the event that an employee suspects a possible COVID-19 infection (e.g. attends a GP for testing), the employer will have no choice in such circumstances other than to require the employee to self-isolate. Where the employer requires an employee to self-isolate on the basis that to continue allowing them to attend the workplace presents an unacceptable risk to others, the employer will not be obliged to pay the employee their usual remuneration benefits. Self-isolation must continue until cleared by a medical professional.

In such circumstances, however, employers should consult with employees, on an individual and needs basis, to reduce the financial impacts of any forced self-isolation period. This will include consultation with employees as to the use of their paid personal leave, paid annual or long service leave entitlements (if available) or taking unpaid leave.

Modifications to Work Arrangements

If employers are experiencing significant financial hardship as a result of a downturn in business, in order to safeguard the business and the ongoing employment of its employees, employers may

choose to consult with employees about temporary alterations to working conditions, which may include:

· the short-term elimination of casual roles;

· a reduction in working hours to manage economic imperatives and overcome quiet trading periods; or

· temporary closure or stand down of employees.

It should be noted that, in the event an employer opts to make employees’ roles redundant as a result of a downturn in business, redundancies should be made in accordance with requirements under the National Employment Standards and any relevant modern award or enterprise agreement provisions.

With respect to stand down or work stoppages, the Fair Work Act 2009 (Cth) prescribes that an employer may stand down employees where they cannot be usefully employed/engaged for a stoppage of work for any cause which the employer cannot reasonably be held responsible. It should be noted that it is untested at law as to whether unsustainable downturn of business and productivity due to the COVID-19 pandemic qualifies as a ‘stoppage of work’ for the purposes of the Act, exempting an employer from its obligation to pay its employees – however, it is at least arguable. We note, however, the stand down provisions in the Act are not intended for indefinite periods of business closure, or a circumstance where the business cannot generally meet its financial obligations as and when they fall due.

In all circumstances where a stand down is being implemented, employers should discuss with affected employees, among other things, the nature of any workplace changes, the likely effect on employees and possible measures to avoid or reduce the adverse effects of the changes. In addition, employers should invite employees to give their views on the proposed workplace changes so that appropriate outcomes can be reached.

Working from Home Arrangements

Where possible, employers should actively encourage their employees to work from home given the work health and safety laws that apply. In such circumstances, however, some guiding principles ought to be followed, such as:

· ensuring a safe work environment (e.g. use of a supportive chair, free of trip and spill hazards etc);

· ensuring a quiet work environment (e.g. insulating against noise from pets or other residents);

· ensuring a reliable internet connection;

· instituting a regular contact plan with colleagues and management;

· adherence to normal hours of work;

· separation from distractions as best as possible (e.g. putting in place other measures to care and cater for children whilst working from home); and

· remaining collegiate (e.g. reaching out to colleagues on a regular basis to maintain a degree of workplace normalcy.

School Closures

In the event of school closures, whereby employees are unable to attend for work due to the care of a child, such absence will be treated as unpaid leave except where the child is unwell (e.g. evidenced with a medical certificate). Employers may permit the use of accrued annual leave and long service leave entitlements during any period of school closures. Again, this should be decided after

consultation with the affected employee(s). If the employee is able to work from home, the employee should be allowed to do so.

Way Forward for Employers

No doubt, the fear and alarm from the COVID-19 pandemic is causing a significant deleterious impact on employers which, in turn, is creating further fear and alarm for employees with respect to their immediate job security. Our experience is that employers are genuinely trying to take care of their employees whilst remaining sustainable and operational over the forecast next 6 months.

Ultimately, during this COVID-19 pandemic, an employer’s policy should be of collaboration and consultation with affected employees. Where such a policy fails to bear fruit, we recommend legal advice be sought as to the alternative options available.

This alert is not intended to constitute, and should not be treated as, legal advice.

In the last week alone, the world has seen more than 30 people brutally murdered in mass shooting in the USA. In that regard, the American National Institute of Justice has conducted a recent study in which it has examined every shooting incident at schools, workplaces and places of worship since 1999. As a result of the study, it found that in the majority of mass shooting cases, early childhood trauma including exposure to domestic abuse and violence at a young age was a prevalent issue. The nature of such exposure included parental suicide, physical or sexual abuse, neglect, domestic violence, and/or severe bullying. The trauma was often a precursor to the development of mental health conditions, including depression, anxiety, thought disorders or suicidality. To that end, as a society, we need to be more proactive. In our view, proactive prevention starts in schools, the home and especially at the workplace, whereby employers ought to be thinking about ways to have conversations about mental health and domestic violence and at the very least establishing systems for identifying individuals in crisis, reporting concerns and reaching out — not with punitive measures but by making meaningful support available.

The incidence of domestic violence and mental health issues appears to be increasing and is now a much discussed social issue both domestically and internationally. The statistics regarding domestic violence in Australia are horrifying – one in six women, and one in 20 men, have report having experienced violence from a current or former partner since the age of 15. In March 2018, the Full Bench of the Fair Work Commission (“Full Bench”) observed that family and domestic violence is ubiquitous and that such violence not only affects those who suffer it, but the children who are exposed to it, extended families, friends and work colleagues. To that it, it is trite to say that this issue impacts on workplaces and requires specific action.

Within our legal system, employees are now entitled to take 5 days of unpaid domestic violence leave in a 12 month period. This entitlement, unlike other leave benefits which accrue, does not accumulate and resets at the start of each 12 month period of employment. However, on 25 July 2019, the Full Bench handed down a new decision which proposed to revisit the existing domestic violence leave provisions in June 2021, after they have been in operation for three years to consider the following issues:

1. whether employees should be able to access paid personal/carer’s leave for the purpose of taking family and domestic violence leave;
2. whether any changes are needed to the unpaid domestic leave entitlement; and
3. whether provisions should be made for paid family and domestic violence leave.

Given the insidious and prevalent nature of this issue and the significant impact it can have on the working lives of victims, and as a result of the increasing trend of clients seeking advice on how to manage these issue from a practical perceptive, this article sheds light on why supporting domestic violence sufferers and those with mental health issues, is, in our view, an essential requirement for responsible employers.

However, having the best intentions can sometimes land employers in hot water. In that regard, business’ ought to be cognisant that any request for additional medical information needs to be for a legitimate purpose otherwise the employer runs a substantial risk that the request, and any subsequent detrimental treatment of the employee, may constitute adverse action in breach of the Fair Work Act 2009 (Cth). Similarly, discriminating against an employee experiencing domestic or family violence or mental health issues by either, for example, denying them flexible working arrangements, demoting or transferring them to another area of the business, or terminating their employment, is prohibited under the Fair Work Act 2009 (Cth) and may sound in significant damages award against a contravening employer.

It is equally important for employers to be aware of the legal obligations arising under the Disability Discrimination Act 1992 (Cth) (“Disability Act”) which prohibits discrimination of an employee on the grounds of a disability – including a mental health condition. Accordingly, an employer must offer equal employment opportunities irrespective of an employee’s mental health condition provided they are able to fulfil the inherent requirements of the role for which they were employed or would be able to do so through the implementation of reasonable adjustments. In this regard, for employees suffering from mental health issues, including as a consequence of domestic abuse, often small changes to the working environment will be sufficient to ensure they have access to equal employment opportunities and are not subjected to undue emotional hardship or unreasonable stress at work. Under the Disability Act, an employer is required to make reasonable adjustments with a view to ensuring that an employee with a disability can productively perform the functions of the job.  Such adjustments may include, but are not limited to:

• reducing the employee’s hours of work;
• allowing the employee to work flexibly, including remotely or from home; or
• modifying the employee’s duties or system of work, including providing additional resources to assist the employee manage their workload.

Importantly, these laws apply to independent contractors and partners in a partnership.

In addition to the legal requirements arising under human rights legislation, all employers are subject to work health and safety laws, both at State and Federal level, to ensure, in so far as is reasonably practicable, that the health and safety of an employee is not put at risk from work carried out for the employer. In this way, employers ought to keep abreast of mental health issues, and ensure that any employee suffering from mental health issues or domestic violence, has access to appropriate support services, such as an Employee Assistance Program. It is also key for employers to ensure that employees suffering from mental health issues, or domestic abuse at home, are not exposed to bullying, unreasonable job stress or harassment. So far as is reasonably practicable, employers must ensure that such behaviours are eliminated from the workplace.  In New South Wales, employers must also consider whether knowledge of a serious domestic violence incident against an employee in their employ triggers an obligation under the Crimes Act 1900 (NSW) to report serious indictable offences to Police authorities.

Apart from legislatively entrenched safeguards, responsible employers will be aware that mental illness and promoting domestic violence prevention is more prevalent than most people realise, and it should not be presumed that it only affects people outside of the workplace. In this regard, ignoring the problem can have a far greater consequence for employers and society at large than the cost of developing and implement appropriate strategies and mechanisms at work.  Such strategies should include having policies and support systems in place to create a safe and unthreatening environment where employees feel comfortable communicating openly about mental health or domestic issues.

Some practical steps employers can take to raise awareness of mental health and domestic violence issues include:

• providing appropriate management training to staff and senior business leaders including in how to have conversations that may be difficult or confronting with employees;
• ensure organisational structures are clear, and roles and responsibilities are clearly defined;
• ensure safe working conditions and conduct independent audits to assess compliance;
• communicate regularly and on an informal basis with employees about issues affecting them;
• encourage a workplace culture where employees support each other and are positive;
• respond appropriately to requests for flexible working arrangements;
• monitoring employee absenteeism and workloads to ensure job-stress is minimised;
• recommend medical care to an employee who has disclosed a mental health or domestic abuse issue;
• consult with employees about the creation of a mental health plan (such as a workplace policy);
• review the workplace culture generally to ensure it is collegiate, supportive and responsive; and
• provide access to employees for counselling services or specialist support groups.

After many years in legal practice, what we have come to realise as legal practitioners advising on matters which affect people and human relationships, is that recognising and promoting mental health is an essential part of creating a safe, healthy and positive workplace. Employers, managers and workers each have roles to play in building a safe work environment, one that will not create or exacerbate mental health or domestic problems, but which promotes speaking up and asking for help.

In concluding this article, we ask our clients to consider what their organisation can do to assist employees affected by domestic violence or mental health issues, beyond what the law currently provides?

This may include the introduction of paid miscellaneous or discretionary leave; initiatives designed to reduce the stigma associated with domestic violence; access to employer-funded employee assistance counselling programs; accessibility to flexible working arrangements; and the creation of a supportive and positive culture within the business.

Ultimately, as a global community, it is evident that proactive intervention of domestic violence and mental health issues is a responsibility which falls to humanity in its entirety to manage, and this includes how these issues are managed at a workplace level.

If you wish to discuss any aspect of this article or require specialist advice or assistance in relation to your employment relations framework, please do not hesitate to contact us.

This alert is not intended to constitute, and should not be treated as, legal advice.