by Julian Arndt, Associate Director at Australia Business Lawyers & Advisors
Now is the perfect time to stop and think deeply about where the year is headed, what might have been missed last year and see what opportunities may lay ahead. Our workplace relations partners at Australia Business Lawyers and advisors, answer 12 key questions you need to have a good answer for to make this a successful year.
1. Have you considered where your business is placed in relation to requiring employees to be vaccinated against COVID-19?
There is much more discussion to come about this issue both in terms of what the vaccine will actually mean for Australia but also how it will be integrated into the industrial landscape. Will you be able to issue a lawful and reasonable direction to your employees to take it? While the science should be left up to scientists, if this isn’t on your radar as a business yet – it should be.
2. Where are you placed and what is your plan concerning the expiry of the pandemic-era employment conditions?
Has your business adopted any of the temporary industrial standards that have been introduced during the pandemic? Have you issued JobKeeper directions which are ongoing? Have your employees accessed ‘Schedule X’ entitlements under various modern awards? What about ’Schedule I’ conditions under the Clerks Award? Now is a great time to consider how to manage these arrangements in the future, particularly as they have current expiry dates. If you are unaware of what these arrangements are – perhaps its time to ask an expert as to whether you should be using these arrangements while they last?
3. What happens with working from home?
Several libraries have been written about what 2020 will mean for remote work. For you, right now, questions could be: will your new normal persist? Is it time to bring people back in? Are they ready and if they are not, how do you get them ready? Long term what is the optimum working arrangement for your business.
4. What is your business currently doing with its casual employees?
The Courts in recent years have shown a willingness to disregard the ‘casual label’ on an employee and instead look to the true character of an employee’s engagement. If an employee has relatively consistent hours and a reasonable expectation of ongoing work, regardless of the casual name (and a 25% loading) the employee may, at law, be a permanent employee entitled to paid leave.
Moves in parliament and the High Court this year may clarify this issue, or they may not, we will see. What can be done now is for HR practitioners to look at how their casual workforce is engaged (their contracts and their work patterns) and take necessary steps to ensure their casuals stay casual.
5. How much personal leave are your part-time employees accruing each year?
While other things were happening last year, the High Court of Australia reversed the Full Federal Court’s decision in Mondelez Australia Pty Ltd v AMWU  FCAFC 138. This means that, after some years of uncertainty, the current state of the law is that:
“a ‘day’ for the purposes of the Fair Work Act refers to a ‘notional day’, consisting of one-tenth of the equivalent of an employee’s ordinary hours of work in a two-week (fortnightly) period”.
More simply – this means that Part-time employees are entitled to a pro rata amount of 10 working days of paid personal/carer’s leave for each year of employment.
While the High Court’s decision in Mondelez confirmed the understanding applied by almost all employers for almost all of the Fair Work era (that personal leave was a ‘pro rata’ entitlement), it did overrule a Full Federal Court Decision which had been the law for some months. If your business had changed its practices following the Full Federal Court’s Mondelez decision – it is now time to take the High Court’s lead and change back.
6. Does your business have an up-to-date employment contract?
If not, it is time to review and update your employment contracts before your next employee arrives. Does your template have the five contractual essentials?
- general obligations clause
- set-off clause
- notice of termination clause
- policies and procedures clause
- surveillance clause
Does your contract incorporate what has changed over the past 18-24 months, including protections against accrual of leave by casual employees? Do your contracts contemplate ‘stand downs’ on the basis that the employee cannot be usefully engaged (a COVID-era hot point)? If you are unsure, seek expert guidance to ensure your obligations are met and your business is protected.
7. Do you intend to conduct pay reviews shortly? It could be time for a new contract.
Performance reviews and pay reviews are often scheduled between January to June. If so, it is useful to think about whether you need to update an employee’s contract of employment alongside this. Consent is required for any contract variation so if you are in a position to offer a salary or wage increase in exchange for agreeing to sign a new contract, the employee is much more likely to consent.
8. Do you have compliant and effective workplace policies and are your employees aware of them?
At an absolute minimum, in addition to a current Code of Conduct, all workplaces should have the following policies in place:
- Discrimination, Harassment and Bullying
- Social Media
- Information Technology (including specific and legislatively valid workplace surveillance clauses)
- Drugs and Alcohol (for safety-critical industries)
- Complaints and Grievances
Workplace policies should be clear as to what your expectations are as an employer, while providing enough flexibility for you to run your business. As a general rule, these workplace policies should not form part of an employment contract.
9. Is your enterprise agreement (EA) expired, or due to expire in 2021 or 2022?
If it is, the time to start planning for the EA bargaining process is now. Chances are, for better or worse, bargaining for your next agreement will be very different to previous years and the economy reacts to the ongoing turmoil of the pandemic. This will of course occur against the backdrop of the Fair Work Commission’s continuously evolving approval processes including the forensic examination of loaded rates, a much stricter Better Off Overall Test (BOOT), thorough analysis of information given to employees during the access period and an assessment of the moral authority of certain votes.
10. Are you aware of the changes to Modern Awards and the Four-yearly Review and their implications?
All businesses should be aware of what Modern Awards apply to them (including those awards which underpin their EAs). Modern Awards will continue to change as the Four-yearly Review continues into its seventh (and final?) year. Are you up-to-date on award entitlements in relation to flexibility requests? What has happened to overtime conditions for your casual employees? Are you aware that Family and Domestic Violence leave is no longer an Award entitlement (but instead is now in the National Employment Standards)? Have you been providing casual employees with conversion notices? It’s time to review your award to ensure your compliance.
11. Do you have injured employees undertaking long-term absences?
Managing your ill and injured employees is a legal obligation. It is very likely that in the fog of 2020 many of these issues would have been put in the ‘tomorrow’ basket. Now is the time to make sure that you are up-to-date with the status and progress of these employees in order to develop a plan and timeline going forward.
This is hugely beneficial for all parties in managing what are always extremely difficult situations.
12. Did 2020 raise any employee disputes, contractual or award interpretation queries, or entitlement calculation questions, which remain unresolved?
Now is a good time to call the experts to discuss outstanding issues that might be tempting to throw back into the too-hard basket. Take the time to review what employee disputes arose last year, how they were handled and what could be improved to reduce dealing with unfair dismissals, harassment claims or adverse actions filed against the business.
Training your HR team is also critical. You can have the correct policies and documentation but if the managers don’t behave appropriately or they are unsure how to have a difficult conversation or address poor behaviour in the workplace, the paperwork means nothing. The two need to work in tandem for a fully functional workplace that presents minimal risk for claims.
Where to from here?
A comprehensive list of workplace policies and procedures is available on our members portal and members can access our workplace relations team on 1300 391 426 for advice.