Work Health and Safety

COVID-19, Working from Home, Mental Health Challenges and the Office Christmas Party!

As we have covered in previous client alerts, the COVID-19 pandemic has created a raft of unique challenges for employers striving to maintain safety, efficiency and productivity, and employees who, perhaps for the first time in their working lives, are now consistently working from home. For many of these employees, feelings of social isolation have led to reports of anxiety and depression, and with the Silly Season just around the corner, this means some serious red flags for employers. In this client alert we examine some of the current difficulties, and projected difficulties that COVID-19, will have on employees, and how best employers might deal with them.

Social Isolation

According to a recent survey conducted by the Royal Melbourne Hospital, half the healthcare workers surveyed are feeling “burnt out” and wanting to leave their profession due to the overwhelming volume of issues they are being called on to deal with due to community mental health complaints caused by COVID-19 and from workers working from home. Remote working, whilst it might at first have sounded convenient insofar as employees could ‘pop a load of washing in the machine’ or ‘run the kids up and back from school with minimal disruption to their work day’, are now experiencing a raft of new and unique difficulties.

For example, employees are reporting:

· feeling isolated, lonely, or disconnected from their colleagues;

· being unable to ‘switch off from work’;

· reduced boundaries between work and personal life;

· having difficulty staying motivated;

· having difficulty prioritising workload;

· feeling uncertain about personal productivity and whether they are performing according to expectations;

· feeling guilty about not performing work or family duties as effectively; and

· insomnia and sleeping problems.

These issues can manifest for simple reasons such as a misunderstood email communications or exclusion from a particular virtual meeting. These difficulties are exacerbated by the inability for employees to readily discuss their grievances with their colleagues, so they end up ‘stewing in their own juices’. In turn, this can lead to claims of workplace bullying, taking time off on account of feeling stress and anxiety and general performance issues, all of which combine to reduce an employer’s overall productivity. More concerning however is the very real effect this may be having on the mental health of employees.

Employers have a duty to ensure that they provide a safe system of work and that employees are not subjected to the risk of mental health concerns because of the way they work. On top of this obligation, employers need to be cognisant that most people are struggling in some way with the consequences of the pandemic. As such, it is reasonable to expect that the level of underlying mental health issues is far greater now and can easily be exacerbated by a poor work environment or other work stressors. Employers really need to be taking careful consideration of these unseen matters and at least making reasonable efforts to ensure they have considered the matters that may increase the risk of mental health concerns for their employees and put in place mechanisms to address this if possible.

It is fairly assured that we will see a dramatic increase in litigation by employees against their employers both in the workers compensation arena and for breach of employers’ work health and safety obligations as a result of mental health claims. Responsible employers who wish to ensure they do not have to deal

with such litigation and want to ensure increased sustained productivity are well advised to pay special attention to their employees emotional and mental wellbeing.

Given the current time of year, most organisations would historically have been planning Christmas functions. These functions were an important part of the employer’s ability to say thank you to its employees and give employees a social environment to enjoy themselves and interact with colleagues in a far more relaxed context. It was an opportunity to increase company moral and reinforce the organisations culture. However, for the most part, this year these types of gatherings will not be possible. So how can businesses address this gap, given the ever-increasing need for this type of social interaction?

Virtual Christmas Parties

In years gone by, the office Christmas party was a welcome opportunity for employees to let off steam and celebrate the end of the year in the company of their colleagues. Of course, that set the scene for overindulgence and inappropriate workplace behaviour which, for some employers and employees, made for some very difficult conversations upon returning to work.

This year, due to restrictions on numbers at various venues and some offices still not catering for a full return of their employees, virtual Christmas parties will become a new norm whereby work colleagues will get together through the use of technology such as Zoom. Rather than supplying a controlled amount of alcohol at a planned and regulated office function, employers may send a small selection of alcoholic beverages to their employees by mail/courier.

Whilst it is highly impractical to send an excessive amount of alcohol by courier to be enjoyed by employees at the virtual office party, employers have no means of controlling the quantity of alcohol consumed by individuals, as they may well ‘stock up’ in their homes. This may result in some employees, within an employer sponsored virtual party environment, becoming heavily intoxicated. Not only does this create an unsafe situation, but, when coupled with some employees’ enduring feelings of anxiety, social isolation, disconnection and, in some cases, feeling as though they have been the subject of bullying, intoxication could result in serious inappropriate workplace behaviour. Where an employee has felt disenfranchised for an extended period, is in the comfort of their own home and whose normal inhibitions are depressed by alcohol, the potential for outbursts of offensive and unacceptable behaviour is omnipresent.

To mitigate this risk, it behoves employers to educate staff as to what constitutes acceptable behaviour, and what kinds of conduct may give rise to disciplinary action. To this end, it is important that employers implement control measures, so their staff understand what behaviours are acceptable in the context of an event organised by the company, even if it is being conducted virtually and not during ordinary business hours.

Examples of recommended control measures include:

1. developing and implementing policies around appropriate workplace behaviours, and refreshing these expectations with your employees regularly and in particular before virtual Christmas parties;

2. consulting with staff in relation to your expectations of their behaviour at virtual Christmas parties;

3. providing training to employees on their obligations under various legislation, including in respect of work, health and safety; and

4. providing access to counselling and an EAP services provider.

Furthermore, it should be agreed prior to the commencement of the virtual event that an ‘event moderator’ will be in place and, at the first sign of inappropriate comments or behaviour, employees will be dismissed from the virtual event (by being disconnected from the Zoom meeting).

Finally, as is the case at in-person functions, employers should be cognisant of employees looking to ‘kick-on’ at the conclusion of the virtual event. Whilst this is less likely where employees commenced the function from the comfort and safety of their own homes, the potential exists that some employees, who may have overindulged, see fit to want to meet with some of their colleagues at a venue and continue the festivities.

It is almost impossible for an employer to prevent this if an employee, or group of employees, are so inclined; however, to mitigate the risk, an employer should seek to have pre-emptive conversations with their employees prior to the virtual function, including the risks to their employment should they engage in drink driving, let alone theirs and others’ safety, and that any unsavoury incidents that might occur between work colleagues, even after the conclusion of the virtual event, may have ramifications when they return to work.

Whilst work functions are a great opportunity to have fun with colleagues, our recommendation to surviving the silly season is to be honest with yourself as to whether everything reasonably practicable has been done to ensure all employees are safe and without risk of being subjected to offensive behaviour. This is particularly poignant this year for employees who might be suffering from mental health issues caused by prolonged COVID-19 isolation. A ‘steady hand’ is required.

If any further information in relation to any aspect of this alert is required, please do not hesitate to contact us. Otherwise, we are available and ready to assist should you require any advice or legal support this silly season.

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

Bullying in the Workplace – No matter where you work

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.

Sexual Harassment in the Workplace: A Timely Reminder for Business

Under the backdrop of the #MeToo movement surrounding actors and celebrities, along with recent allegations against former High Court Judge Dyson Heydon, now presents a timely reminder that sexual harassment, particularly in the course of one’s employment, is entirely unacceptable.

The Sex Discrimination Commissioner, Kate Jenkins has recently handed down the Sexual Harassment National Inquiry Report into Sexual Harassment in Australian Workplaces (“the Report”) and it serves as an excellent resource for employers to ensure that their workplaces are free of sexual harassment. It provides a framework for maintaining a safe workplace, key indicators with respect to which employers must remain vigilant, and methods to deal with potential sexual harassment before it becomes costly to both personnel and business.

What is Sexual Harassment in the Workplace?

As well as having a devastating impact on affected individuals’ health, wellbeing, career and finances, sexual harassment represents a cost to Australian employers through:

  • lost productivity;
  • staff turnover;
  • negative impact on workplace culture;
  • responding to complaints, litigation and workers’ compensation; and
  • reputational damage.

Under the Sex Discrimination Act 1984 (Cth) (“SDA”), sexual harassment is defined as:

  • any unwelcome sexual advance;
  • unwelcome request for sexual favours; or
  • other unwelcome conduct of a sexual nature in relation to the person harassed

in circumstances where a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

However, these definitions take a broad view of what constitutes sexual harassment and fail to address the most typical examples of sexual harassment in the workplace which cause the most problems for employers and employees alike. The 2018 National Survey conducted by the Australian Human Rights Commission (“AHRC”) identified a number of different types of sexually harassing behaviours including:

  • verbal forms of sexual harassment, such as sexually suggestive comments or jokes and intrusive questions about private life or physical appearance;
  • sexually explicit pictures, posters or gifts;
  • intimidating or threatening behaviours such as inappropriate staring or leering, sexual gestures, indecent exposure, or being followed, watched or someone loitering nearby;
  • inappropriate physical contact, such as unwelcome touching, hugging, cornering or kissing; and
  • sexual harassment involving the use of technology, including sexually explicit emails, SMS or social media, indecent phone calls, repeated or inappropriate advances online, or sharing or threatening to share intimate images or film without consent.

The two most common types of behaviour reported to the AHRC are sexually suggestive comments or jokes and intrusive questions about private life or physical appearance. In many cases brought before the AHRC and the Fair Work Commission (“FWC”) complaints by employees, the subject of sexually harassing ‘jokes’, were originally met with surprise by the harasser when their attempts at humour were met with offence or insult.

Quite often, incidences of the ‘sharing of jokes’ or unnecessary familiarity evolve into incidences of sexual harassment. In the recent case of Emmanuel Montes v The Star Casino [2020] FWC 874, an employee was dismissed by The Star Casino for serious misconduct where what began as a joke between a male server and his female colleague culminated in him smacking her on the backside with a serving tray and sending her “creepy, unwanted, disgusting and inappropriate” text messages.

Increasingly, the misuse of social media has given rise to claims of sexual harassment of colleagues, albeit outside the confines of the workplace. Employees have often been under the mistaken impression that ‘friending’ a work colleague on platforms such as Facebook or Instagram and then either sending inappropriate material or making inappropriate comments cannot be adjudicated as harassment by their employer. In the matter of Little v Credit Corp Group Limited t/as Credit Corp Group [2013] FWC 9642, an employee used his Facebook account to make sexually suggestive comments to a new employee that he ‘friended’ and was terminated as a result. However, sexual harassment over social media need not be as overt as in the matter of Little. By ‘friending’ a colleague on Instagram and routinely commenting on their personal photos can be interpreted as stalking behaviour that ultimately gives rise to claims of harassment.

The Report highlights the pervasive nature of the conduct described above and its damaging effects on workplace participants, especially young women. It is no surprise therefore that many capable intelligent employees leave their employer without ever raising the reasons for departure. This only exacerbates the issue and the undercurrent of harassment that may exist in the workplace. It is our view that failure by organisations to take matters of sexual harassment seriously in all its forms, leads to the belief by men in positions of power that they are immune and can do as they wish. This is clearly evident from the recent exposure of Justice Heydon’s conduct.

Mechanisms to Remedy Incidents of Sexual Harassment.

Federal and State anti-discrimination legislation make sexual harassment in the workplace unlawful. The SDA confers additional powers to the AHRC to conciliate sexual harassment complaints and refer matters to the Federal Circuit Court or Federal Court; however, pursuing a claim in the Federal Courts is a complicated and invariably expensive means of seeking remedy. There have been calls to increase the scope for victims of sexual harassment to seek appropriate redress. The Fair Work Act 2009 (Cth) (“FW Act”) does not expressly prohibit sexual harassment however, it can be raised indirectly in matters brought to the FWC through:

  • the general protections against ‘adverse action’ on the basis of a workplace right;
  • the general protections against ‘adverse action’ on the basis of sex;
  • the anti-bullying jurisdiction;
  • unfair dismissal proceedings; and
  • unlawful termination on the ground of sex.

The Report recommends that the FW Act be amended to:

  • establish a sexual harassment jurisdiction in the FWC similar to the anti-bullying jurisdiction (whereby the FWC can conciliate between the victim and perpetrator of sexual harassment and issue a ‘stop sexual harassment order’);
  • clarify that sexual harassment can be conduct amounting to a valid reason for dismissal; and
  • updating the definition of “serious misconduct” to include sexual harassment.

Widening the scope of the Fair Work system to better, or more directly, deal with claims of sexual harassment does provide a relatively low cost means for victims to seek remedy and/or allow employers to deal with perpetrators more efficiently.

Where incidents of sexual harassment are so egregious, claimants may rely on work, health and safety laws and the criminal law for remedy. These include:

  • the imposition of a positive duty on employers to prevent sexual harassment by eliminating or managing hazards and risks to an employee’s health and wellbeing;
  • claims for workers’ compensation;
  • the imposition of penalties on employers who fail to abide by their duty of care to provide a safe work environment;
  • the awarding of compensation to victims; and
  • criminal prosecution for rape or physical assault.

Finally, the Report has made recommendations to protect sexual harassment victims from defamation laws and media exposure which has traditionally discouraged victims from making a complaint. These include cases where private complaints have been made public by the media or where there is a lack of protection for alleged victims of sexual harassment where they are witnesses in civil proceedings or where their allegations are raised in circumstances where they have not made a formal complaint or given permission for the complaint to be made public. Protections being considered include a standard direction, or presumption in favour of, suppression of witness details in civil proceedings.

Prevention and Response to Sexual Harassment in the Workplace.

Considering the tremendous personal and financial costs that sexual harassment claims can cause victim employees and their respective employers, employers of all sizes have sought guidance on what ‘best practice’ for addressing, and ultimately preventing, workplace sexual harassment looks like. To better prevent sexual harassment, the Report recommends action in the following areas:

  • Leadership – developing leaders within the business that set standards that make it clear sexual harassment will not be tolerated;
  • Risk Assessment and Transparency – identifying and assessing risk by learning from internal and external past experiences;
  • Culture – creating a culture of trust and respect that minimise the risk of sexual harassment occurring ; and
  • Knowledge – ongoing practical workplace education and training to ensure a collective understanding of expected workplace behaviours.

Where sexual harassment has occurred, the Report recommends that employers take the following action:

  • Support – prioritising employee wellbeing and provision of support, including before they make a report, and during any formal processes;
  • Reporting – availing employees of greater options to make a report and instituting processes that allow employers to address sexual harassment other than launching a formal investigation (as employees can be discouraged from reporting if the matter becomes too regimented); and
  • Measuring – the data at an industry-level, to help improve understanding of the scope and nature of the problem posed by sexual harassment.

In summary, it has become apparent that it is insufficient for employers to simply compile an ‘anti-harassment’ policy, file it along with a suite of other HR related documentation that may or may not be studied by employees and assume that a business is compliant. As sexual harassment can cause tremendous harm to the victim and become a financial disaster for inattentive employers, it is essential that business of all sizes takes a pro-active approach to preventing sexual harassment where it can and respond appropriately in the event that it does.

In addition to the above steps we recommend that responsible employers implement robust workplace training on appropriate workplace behaviours. The training should be designed to educate all workplace participants on what is and is not acceptable workplace behaviour and how failure to comply will not be tolerated.

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.

Returning to Work in a Brave New World

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.

A Practical Guide to Managing Remote Employees During COVID-19

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.

COVID-19: HOW TO DEAL WITH YOUR EMPLOYEES – A PRACTICAL GUIDE TO THE LAW

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.

Coronavirus and the Workplace – A Timely Update

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.

Managing the End of Year Christmas Party – and The Aftermath Pt2

Oh my gosh – that could not have happened! We hope this is not something the business is saying after the end of year celebrations. Unfortunately, all too often a form of this reaction is all too common. In our last article, we looked at various control measures an employer can put in place to minimise the risk of inappropriate behaviour of employees at end of year or Christmas events which, in turn, minimise an employer’s exposure to subsequent legal claims and possible litigation.  In this, our Part 2, we look at management of the aftermath of the event and what practical steps can be taken to minimise an employer’s exposure where an incident has occurred.

Quite often, incidents occur when the employer-controlled event is over.  At the conclusion of the event at the controlled venue, employees will often continue the festivities at other venues where they can become quite intoxicated and unsavoury incidents result.  In our previous article we gave some guidance on the steps that responsible employers should take to minimise their risk for incidents to occur at the company organised event. As it is often tempting for employees who are enjoying themselves to ‘kick on’, employers should also ensure the policy is broad enough to cover conduct that may bring the Company into disrepute even if it occurs outside of work, or work events. In addition, employees should be encouraged to leave the venue for home once the event is over. Or, if a more carrot than stick approach is favoured, providing the employees cab vouchers to ensure they have a safe means of transport home, can be an enticement to depart before an unsavoury incident occurs.

In the event that a complaint or inappropriate workplace matter is raised about alleged misconduct at a work Christmas event, it is of vital importance that responsive action is taken quickly by employers. Leaving it to mid-January to start an investigation or take action is often too late and lacks the procedural fairness required to be given to an employee. Such measure that ought to be considered, depending on the sensitivity of the issue, include:

  1. providing counselling and support services to the complainant;
  2. keeping the complainant informed as to the steps being taken to respond to the matter;
  3. cooperating with Police and notifying the relevant safety regulators (if warranted);
  4. investigating the matter fully either internally or via a third-party investigation service;
  5. notifying the employee against whom an allegation has been made and requesting their response; and
  6. suspending the accused employee until all the facts have been gathered and a course of action has been decided upon.

In approaching these matters, practical strategies employers should otherwise bear in mind when responding to workplace complaints include:

  1. avoid delaying the response time to allegations;
  2. never assume an allegation is frivolous or vexatious without making inquiries;
  3. consider all the evidence and then determine an appropriate disciplinary response;
  4. document clearly and comprehensively your records at each step of the response process;
  5. provide employees with counselling or an EAP services provider; and
  6. communicate effectively and appropriate when dealing with sensitive workplace matters.

It is also appropriate to have a clear social media policy in place as photographs or video taken ‘in the moment’ and posted to online social media platforms can embarrass or damage the reputation of employees and the employer alike.  It is advisable that employers implement a policy that no images or video from the party are to be posted online by anyone other than the employer.

Finally, whilst inappropriate workplace conduct should be dealt with and punished accordingly, employers need to ask themselves whether the punishment fits the crime. It is therefore not only relevant to act in circumstances where a complaint of inappropriate behaviour is received, but to ensure the ensuing response is proportionate, fair and reasonable.

A common occurrence after the workplace Christmas party can be employees calling in sick the next day.

While employees are entitled to take sick leave if they are not fit for work because of a personal illness or injury, over-indulging to the point where they are unable to attend for work the next day may be a valid reason for disciplinary action.

In Avril Chapman v Tassal Group Limited T/A Tassal Operations Pty Ltd [2017] FWC 4630, Ms Chapman was dismissed after leaving a voicemail for her employer admitting she had over-indulged at the Christmas party and was subsequently unfit for work the following day.

The Commission found that there was a valid reason for dismissal and held that Ms Chapman chose to ‘over-indulge’ the day before she was due at work to such an extent as to be unable to fulfil her obligations to attend for work the next day. However, the Commission ultimately held that the dismissal was unfair considering that this was the first time Ms Chapman had conducted herself in this manner during her 5 years of service with the employer.

We recommend any employer wishing to obtain advice in relation to an incident or complaint arising from an end of year event or Christmas party, takes appropriate and prompt steps to seek legal advice and assistance.

As this article will be our last publication for 2019 and we will resume our alerts from February 2020, we wish all of our clients and readers a wonderful Christmas/Holiday period and a happy New Year!

We trust that, within reasonable parameters, this season of Christmas and end of year functions will be well attended and thoroughly enjoyed!

If any further information in relation to any aspect of this alert is required, please do not hesitate to contact us. Otherwise, we are available and ready to assist should you require any advice or legal support this silly season.

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

Managing the End of Year Christmas Party – and the Aftermath

A quick Google search for career ending moves at the work Christmas Party may be an amusing exercise. However, at this time of the year it serves as a timely and educative reminder to both employers and employees that poor management, planning and behaviour can make the annual Christmas festivities, and their aftermath, a very sobering experience indeed.  In our experience these events are notorious for being a potential breeding ground for inappropriate workplace behaviour and may put employers at risk of litigious actions such as sexual harassment, bullying, discrimination and unfair dismissal claims.

An employer owes an overarching duty to take all steps reasonably practicable to prevent the risk of injury in the workplace. Any workplace Christmas or end of year event will be considered the “workplace” and the employer will be liable for any inappropriate or unlawful behaviour that occurs, if they have not taken all reasonable steps to prevent such conduct. In the context of work Christmas parties, subtler risks can often be overlooked by employers such as the service of alcohol, at an employer’s expense, and the possibility of illegal drug taking and, in some circumstances, sexual misconduct amongst staff.

Furthermore, the meaning of a “workplace” in this context has been extended, through judicial reasoning, to include not only a principal place of business, but also social gatherings at bars, restaurant or other public venues at which organised interactions amongst staff occur.

It is therefore imperative for employers to educate staff as to what constitutes acceptable behaviour, and what kinds of conduct may give rise to disciplinary action. To this end, it is important that employers implement control measures, so their staff understand what behaviours are acceptable in the context of an event organised by the company, even if it is not on work premises or during ordinary business hours.

Examples of recommended control measures include:

  1. developing and implementing policies around appropriate workplace behaviours, and refreshing these expectations with your employees regularly and in particular before the work Christmas party;
  2. consulting with staff in relation to your expectations of their behaviour at work Christmas parties;
  3. providing training to employees on their obligations under various legislation, including in respect of work health and safety; and
  4. providing access to counselling and an EAP services provider.

At the event itself, particularly where alcohol is being served, an employer can take steps to support their duty to prevent the risk of injury by:

  1. limiting the amount of alcohol supplied;
  2. preventing employees from ‘self-serving’ by appointing suitably qualified third-party officers to serve alcohol (e.g. bar service attendants with RSA’s);
  3. commencing and concluding the event earlier in the evening; and
  4. ensuring adequate security and safety measures are in place at the venue.

Careful planning, management and control of venue are vital in mitigating an employer against the risks of litigation, for example, for unfair dismissal.  In the recent decision of Drake & Bird v BHP Coal Pty Ltd [2019] FWC 7444, one employee’s termination was upheld while another was reinstated after a physical altercation at a Christmas event. The employees believed they were at a ‘pyjama night’ (an event organised by BHP mineworkers to mark new rosters) and were thus not attending a “workplace” function.  Nonetheless, there were some 60 employees of the company, including family members, attending the function, allowing the Commission to conclude that the event was sufficiently work related as to be covered by BHP’s code of business conduct and charter values.

Uncontrolled and excessive consumption of alcohol was the principal driver in causing the altercation where an uninvited supervisor decided to belatedly attend the event and was attacked by two employees, one of whom punched the supervisor.  The Commission upheld the termination of the employee who punched the supervisor but reinstated the other.  Despite the conduct of both employees running counter to BHP’s conduct policies, the event was poorly managed and controlled by BHP and they were thus exposed to unfair dismissal litigation with mixed results.

To further highlight the different outcomes that can arise based on the planning, management and control exercised by an employer (or lack thereof), it is worthwhile to compare Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156 and Vai v ALDI Stores (A Limited Partnership) [2018] FWC 4118. 

In Keenan a drunken employee was dismissed for verbally abusing his boss and sexually harassing a fellow colleague. Despite the employee being warned that the usual workplace code of conduct would apply at the Christmas party, the Commission still found that the employee’s dismissal was unfair.  In Vai, an employee was dismissed for misbehaviour at a work Christmas party at which the employer also supplied free alcohol. In this matter, the employee threw a full glass of beer towards other employees. 

While the former matter appeared more serious, the Commission found that the termination of Mr Keenan’s employment was unfair because employees were able to serve themselves alcohol and no one was given the task of supervising the function whereas Mr Vai’s termination was upheld because the work function was at a hotel where the serving of alcohol was controlled and where there were senior staff present to supervise.

Whilst work functions are a great opportunity to have fun with colleagues, our recommendation to surviving the silly season is to be honest with yourself as to whether everything reasonably practicable has been done to ensure all employees are safe and without risk of being subjected to offensive behaviour.

If any further information in relation to any aspect of this alert is required, please do not hesitate to contact us. Otherwise, we are available and ready to assist should you require any advice or legal support this silly season.

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

WORK HEALTH AND SAFETY FOR LABOUR HIRE

Labour hire is a valuable and commercially necessary engagement model for workers, particularly for specific industries such as construction, warehousing, retail and mining. These industries usually prefer labour hire as they are subject to fluctuations in workloads due to seasonal demands and additional or delayed projects.

Even though labour hire has many benefits for the host employer and the labour hire worker, it has been the subject of much controversy over the past few years. This has been as a result of the poor treatment and pay of labour hire workers and the undefined responsibilities between the host employer and the labour hire agency (including in relation to wages, entitlements and Work Health and Safety (“WHS”)).

As such, significant attention at both State and Federal government level has recently been focussed on this issue. This has seen the introduction of labour hire licensing rules in some States and a greater emphasis on WHS. In this week’s article, we discuss the recent release of Safe Work Australia’s labour hire guide and provide an update on the labour hire licensing scheme introduced by the relevant States.

WHS and Safe Work Australia Guide

Labour hire arrangements are covered by the model Work Health and Safety Act (“WHS Act”) and as such, both the labour hire agency and the host organisation are persons conducting a business or undertaking (“PCBU”) under the Act. Notably, a primary duty of care under the WHS Act is owed by a PCBU to a ‘worker’ and the term ‘worker’ specifically includes a labour hire worker.

Accordingly, if your business contracts labour hire workers or is a labour hire agency which provides services of labour hire workers, the WHS Act sets out specific health and safety obligations applicable to your business.

Safe Work Australia recently issued a new guide ‘Labour hire: duties of person conducting a business or undertaking’. The guide provides information for PCBUs in labour hire arrangements regarding compliance with their health and safety duties under the model WHS laws.

Host PCBU and Labour Hire PCBU

The guide outlines that both the host PCBU and the labour hire PCBU have a primary duty of care to ensure, so far as reasonably practicable, the health and safety of labour hire workers engaged by, or caused to be engaged by them, or whose activities are influenced or directed by the PCBU.

All duty holders in a labour hire arrangement must consult, cooperate and coordinate with each other so far as is reasonably practicable. For example, host and labour hire PCBUs must discuss consultation arrangements, the hazards and risks associated with the work, what precautions will be taken to ensure the health and safety of the labour hire worker and the respective roles the organisation will have in responding to an incident.

Duties of a host PCBU

A host PCBU under the model WHS Act, have the same health and safety duties to labour hire workers as they do for any other worker within their organisation. The model WHS Act specifically provides that a host PCBU cannot contract out of or transfer WHS obligations to another party including the labour hire agency.

Before engaging labour hire workers, it is ideal to consider the nature of work to be carried out including any hazards or risks, plant or equipment to be used, the skills or qualifications required to safely undertake the work required and health and safety risk associated with the work. It is then vital to consult with the labour hire agency and eliminate or, minimise risks in the workplace as well as confirming there is a review process for ensuring ongoing WHS of workers.

Duties of a labour hire PCBU

A labour hire PCBU has a duty under the WHS laws to ensure, so far as is reasonably practicable, the health and safety of workers during their placement with the host PCBU. This also means, in some circumstances, not placing in, or removing workers from, a workplace where the labour hire agency believes there is a risk to health and safety or where the risks have not been adequately controlled.

Similar to the host PCBU, the labour hire PCBU should gather information about the workplace, health and safety risks, the knowledge and skills required by the worker and provide workers with suitable and adequate WHS induction training. Furthermore, the labour hire PCBU should also establish communication methods for workers to contact the labour hire PCBU. Workers must be able to raise concerns regarding WHS including ensuring the workers are able to raise safety issues with the labour hire PCBU if they are unsatisfied with the host PCBU’s response.

Labour Hire Licensing

Labour hire licensing first arose as a way to reduce the exploitation of workers and regulate the labour hire sector. There was initially pressure to create a national scheme, however, labour hire licensing remained a matter for individual States to determine. As such, there are different levels of progression across the country regarding labour hire licensing regimes. In this regard, business that operate across multiple jurisdictions need to ensure they remain up to date and compliant in each jurisdiction.

In addition, if your business uses labour hire workers in any state that now has a licensing scheme, it is an offence to accept such workers from an unlicensed labour hire agent. If you do engage with such unlicensed agents, your business could be subject fines of up to $400,350, depending on the jurisdiction in which you operate.

To assist our clients, we have provided a summary of each jurisdictions current stance on labour hire licensing:

Queensland

Queensland was the first state to implement labour hire licensing which commenced in April 2018. This was as a result of a number of complaints of worker mistreatment, specifically relating to backpackers and migrant workers working through the seasonal harvest.

Labour hire providers had until 15 June 2018, to apply for a licence in order to continue operating in the State.

Notably, a Queensland Magistrate just recently imposed the first conviction of a company under the labour hire licensing legislation in Australia.

The company, A & J Group Services Pty Ltd had initially applied for a labour hire licence but withdrew the application after failing to provide information regarding its compliance with various workplace laws. The company was warned by Labour Hire Licensing Queensland not to provide labour hire services in Queensland. However, they continued to operate and was caught supplying workers to a strawberry farm in January 2019. The Magistrate noted the deliberate decision of the company to ignore the warning and imposed a fine of $60,000.

South Australia

South Australia first passed their Labour hire licensing legislation in 2017 which was set to commence on 1 March 2018. However, before it came into full effect, a change in government occurred and it was announced the legislation would be repealed before the end of that year. However, there was not enough support to abolish the legislation and the licensing scheme has recently been reinstated. It was announced that the governing body for South Australia, Consumer and Business Services recommenced accepting applications for labour hire licences and all labour hire providers needed to have lodged their application by 31 August 2019.

Importantly, from 1 November 2019, all labour hire services without a licence must not provide labour hire services otherwise penalties may apply.

Victoria

The Victorian labour hire licensing scheme commenced on 29 April 2019. Labour hire providers will have six months, or until 29 October 2019 to register online and apply for a licence.

Labour hire providers who do not apply for a licence within the six-month grace period or who have been refused a labour hire licence will be prohibited from providing labour hire services.

Australian Capital Territory (ACT)

In 2018, the ACT government announced their plans to introduce a labour hire licensing scheme. The ACT government confirmed they would look at the existing systems in Victoria, South Australia and Queensland when developing their scheme. There are currently no other details confirmed.

New South Wales, Tasmania, Western Australia, and Northern Territory

These states are all yet to adopt a labour hire licence scheme and there have been no announcements about plans to introduce a labour hire licensing scheme.

Lessons for Labour Hire PCBU’s

Given the changing environment in relation to labour hire services, it is vital for both labour hire agencies and host employers to remain up to date with proposed changes and their duties and obligations including in relation to labour hire licensing, wages and entitlements to workers and work health and safety.

We recommend host employer and labour hire agencies consider the following:

  • Ensure labour hire agencies and host employers review the new Safe Work Australia guide regarding labour hire and ensure the organisations are undertaking and complying with their health and safety duties under the model WHS legislation;
  • Review workplace policies in relation to work health and safety;
  • Ensure all labour hire workers have the required skills and qualifications to undertake the work required;
  • Provide adequate workplace training regularly;
  • Proactively conduct audits of work health and safety compliance;
  • Arrange for regular discussion with the host company/labour hire organisation to ensure both parties are aligned when it comes to obligations for WHS;
  • Continue to remain up to date with changing laws regarding labour hire licencing; and
  • Ensure if your organisation is operating in more than one jurisdiction, that the organisation is compliant in each jurisdiction.

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.

Domestic Violence and Mental Health – Why They Are Workplace Issues!

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.

EMPLOYERS DUTY OF CARE – HOW FAR DOES IT GO?

We hear the words “duty of care” used commonly but in terms of an employment relationship, what does this really mean for employers and how far does the duty really go?  By way of introduction, there are a number of duties that are owed by an employer to an employee. These include, but are not limited to:

  • The duty to provide competent staff;
  • The duty to provide a safe place to work;
  • The duty to provide proper and adequate materials; and
  • The duty to provide a safe system of work and supervision.

This article, however, will focus on the duty owed by an employer to an employee to take reasonable care to protect the employee against foreseeable injury arising out of their employment. This duty may arise as an implied term in the contract of employment, or as a separate tort duty, or occasionally as an express contractual term. The duty of care owed by an employer to an employee is personal and said to be non-delegable. Effectively, this means that the employer’s duty cannot be avoided by delegating the duty to some other party.

It is also important to understand that the standard of care is a standard of “reasonable care” and does not amount to a guarantee of the safety for the employee. What is reasonable care in the circumstances is influenced by current community standards and will vary from business to business. For example, a safe system of work in a bank will be very different compared to a farm environment. An employer must also take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work. However, it is an employer’s obligation to not merely provide a safe system of work but it is also an employer’s obligation to “establish, maintain and enforce such a system…”[1]

Psychological Injuries

Safe Work Australia reports that 92% of serious work-related mental disorder claims are attributed to work-related mental stress and the typical time off work for such a claim is approximately 15.7 weeks. In this regard, work-related mental disorders can take a significant toll on a worker’s health, but it can also have a negative impact on fellow colleagues as well as the business itself through low productivity and damaging workplace culture.

Managing psychological injury risks and supporting mental wellbeing can be challenging for employers as each employee is different and are affected by their own personal circumstances. However, as a firm, we have personally experienced a significant increase in claims that include work-related psychological injuries and believe employers need to be far more mindful of their obligations and their workplace practices in this regard.

Where an employee pursues legal action against their employer for breach of the duty of care, the Courts will apply the following guiding principles in relation to the question of whether any ensuing psychological injuries occurred as a result of the alleged breach:

  1. As stated above, in the absence of any express contractual term, an employer has an implied contractual duty of care to take reasonable care for the safety of their employees. This duty also extends to taking reasonable steps to prevent employees from suffering psychiatric harm. However, the content of the duty cannot be considered without taking account of the obligations which the parties owe one another under the contract of employment and to that end, the Court has indicated that the substance of the obligations is “fixed” at the time of the formation of the employment contract;
  2. Accordingly, the Courts will consider whether the psychiatric injury suffered by the particular employee was reasonably foreseeable. The High Court decision of Koehler v Cerebos (Australia) Ltd (2005) HCA 15 is a leading authority in relation to claims for psychiatric injury that arises out of stress from an employee’s workload which was the facts in this case. Koehler emphasised there was a requirement to look to the content of the duty and the parties’ obligation under the contract of employment. The decision also accepted that an employer is entitled to assume, in the absence of warning of the possibility of psychiatric injury, that the employee considered themselves able to do the job at the time of executing the contract. As such, in this decision, there was no suggestion the employee was particularly vulnerable and although she had complained, there was no evidence that she was putting her health at risk. The High Court stated that it could not be a breach of the employer’s duty of care to insist upon the employee carrying out the contractual duties to which she had agreed. In Koehler the employee provided evidence which intended to provide a comparison to her workload and the industry standard. However, the Court acknowledged her workload was excessive based on industry standard but nonetheless noted that the parties entered into a contract of employment which departed from the standard and this was accepted willingly by the employee;
  3. Once the Court determined the impact and weight of the employment contract against the alleged breach of the duty of care, the Court in Koehler moved to apply, for the most part, the test for determining tortious liability and whether the risk of a particular employee sustaining recognisable psychiatric illness was reasonably foreseeable. The test for “reasonably foreseeability” is whether the risk was not farfetched or fanciful. In assessing foreseeability, consideration must be given to the nature and extent of the work being done by the particular employee and the signs given by the employee concerned;
  4. If a reasonable employer should, in the circumstances of the case, have foreseen the risk of psychiatric injury to the particular employee, the next question is whether the employer is negligent. This requires the Court to assess what a reasonable employer would do in response to a risk of foreseeable harm. It would also be prudent to consider the probability and gravity of the harm to the employee, the nature and capacity of the employer and the cost and inconvenience of taking precautions by the employer to reduce the risk of harm. These considerations are to be interpreted against the contractual matrix at the time the employment contract was formed; and
  5. If the employer is found to have breached its duty, the Court must consider whether the breach caused the harm and/or loss suffered by the employee concerned. In a practical sense, this requires the employee to establish that it was more probable than not that the risk of injury would have been prevented if the employer had exercised reasonable care and/or put in place measures to prevent the risk of injury from occurring.

The decision of Koehler on its facts involved an employee whose complaint was that she was unable to carry out her stipulated duties in the time provided to her. In light of Koehler it is difficult for a claim to be successful where stress resulted from the amount of work the employee was required to perform as part of their duties articulated in the employment contract. However, Australian courts are developing a larger awareness that not all work stress cases are the same and other categories of cases are emerging where appropriate breaches of duty have been found. For example, in circumstances where bullying, victimisation or harassment are present.

Recent High Court Challenge 

Notably, the High Court of Australia recently considered whether an employer had a duty of care towards its employees during a workplace investigation in the decision of Toni Govier v The Uniting Church in Australia Property Trust (Q) [2018] HCATrans 65.

The facts of the case included Ms Govier and another employee, given the pseudonym “MD” during the proceedings, who were both disability workers and were responsible for the care of the employer’s client named Tara. During a cross over of their shifts, Ms Govier and MD engaged in an altercation with Ms Govier suffering both physical and psychiatric injuries by MD and was hospitalised as result of the injuries.

On the following day, Unitingcare issued Ms Govier a letter instructing her to attend an investigation interview. Ms Govier was also directed not to discuss the incident with any other employee and was stood down on full pay pending the outcome of the investigation.  Ms Govier did not attend the interview and presented a medical certificate to her employer which stated she was unfit for work.

However, a fortnight after the incident, Unitingcare issued a further letter to Ms Govier claiming she had refused to attend an interview and advising of their preliminary view that she had engaged in violent and inappropriate behaviour against MD. Unitingcare had spoken to MD and their client, Tara where they found that the incident involved kicking, hitting and pushing by Ms Govier.  Ms Govier was provided five days to show cause why her employment should not be terminated.

Ms Govier’s employment was ultimately terminated and she was diagnosed with a chronic post traumatic disorder and a major depressive condition. As a result, Ms Govier claimed damages for the aggravation of her psychiatric injury, arguing that the content of the two letters aggravated her chronic, post traumatic and major depressive disorders, and, had she not received the letters, her injuries would not have been so severe.

At first instance in the District Court of Queensland, Ms Govier was unsuccessful. The judge rejected her submission that there was a duty of care to provide a safe system of work which extended beyond the conduct of tasks for which an employee is engaged and that included a duty to provide a safe system of investigation and decision making.

Ms Govier appealed to the Queensland Court of Appeal who ultimately agreed with the District Court. The Queensland Court of Appeal followed the authority of State of NSW v Paige [2002] NSWCA 235 where they found that the employer did not owe a duty of care to conduct its disciplinary procedures so as to avoid psychiatric harm to an employee.

Ms Govier appealed to the High Court of Australia. The special leave question before the High Court was to consider whether the decision of Paige precludes the obligation of an employer from having a duty of care to an employee merely because the acts are done in the course of the workplace investigation. Ms Govier had argued her claim in both tort and contract, relying upon the implied obligations under the contract of employment.

Judge Edelman found that the contractual obligation and the tortious obligation were both entrenched in the same concept of an assumed responsibility but decided that the assumed responsibility was exclusively shaped by the terms of contract. On the other hand, Justice Gordon pointed out the contract of employment was not exhibited at trial and therefore they did not have the terms said to inform the conduct of the employer. Without having the contract of employment before them, they were unable to understand the contractual framework. In particular, the High Court was unable to properly consider the question as to the existence and scope of any duty of care under the contract.

In the end, the High Court found that given the contract of employment’s centrality to the determination of the issues, the proceeding was not a suitable occasion to determine the issues. Accordingly, special leave to appeal the decision to the High Court was not granted.

Consequently, the issue as to whether investigations form an aspect of the tortious duty to provide a safe system of work was left unanswered. As the decision of the High Court was not based on the merit of the argument but dismissed on a technicality as result of not having the terms of the contract before them, the issue has been left unsettled and therefore open to further argument and judicial consideration.

Lessons for Employers

Even though Ms Govier was, in this instance, unsuccessful, the case highlights the importance for employers to be mindful of an employee’s wellbeing during workplace investigations and ensure employers understand the scope of their duty of care and obligations, including having in place the tools and support necessary to meet these obligations.

The consequence of good employee management creates a positive and productive business, less workers’ compensation claims and an engaged workforce. In this regard, we suggest the following:

  • Ensure you have an employment contract for each employee outlining their role and duties;
  • have in place clear policies and procedures to manage risk and complaints including bullying and harassment policies, investigation policy and disciplinary action policies;
  • be mindful of the risks associated with a workplace investigation including employees under investigation and suffering psychological injuries;
  • ensure the business engages investigators who are trained and experienced;
  • provide training to management in order to recognise and address safety risks including mental health;
  • where a breach of policy occurs, take steps to address the complaint or safety risk appropriately;
  • provide support to management in order to recognise and respond appropriately to employee concerns regarding managing workloads, being alert to increase absenteeism or significant changes in the employee’s performance or behaviour; and
  • provide employees training on mental health and how to manage stress – consider incorporating mental health programs or initiatives and providing access to employee assistance services.

If further information in relation to any aspect of this alert is required, or should you wish to further discuss the steps that can be taken to mitigate the risks in this area, please do not hesitate to contact us.

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

[1] McLean v Tedman (1984)155 CLR 306 at 313

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