2020 was one of the most turbulent years for employers and employees in recent memory.
We saw worldwide recessions, state directed lockdowns, and pressure for employers to rapidly pivot to remote and virtual working environments.
From a workplace relations perspective, the pandemic prompted much more than a temporary homeworking experiment and a short term logistical challenge. It tested the foundation upon which our working lives operate, and required organisations, leaders and employees to embrace significant changes to the status quo.
In the midst of these challenges, the federal government moved swiftly to establish IR Working Groups tasked with finding ways to urgently rebuild jobs lost as a result of COVID-19, while our federal courts interpreted historical workplace legislation through the lens of a global pandemic.
For good or for bad, the challenges of 2020 present a learning tool for your workplace relations strategy moving forward. In this article we explore the key learnings from 2020, and what to expect for the year ahead.
1. Working From Home is Here to Stay… at least in some form
One positive outcome of the pandemic is that many industries have embraced remote working.
Working from home arguably offers opportunities to improve our working lives – be it through reduced commuting, greater efficiency and productivity, or flexibility to integrate our professional and personal responsibilities.
For industries that continue to embrace remote working or move towards hybrid models, employers need to balance the improvements with the emerging risks:
- Data loss prevention – is your confidential information being printed, copied to a USB or otherwise misappropriated by your remote staff? Can confidential discussions be overheard in the home?
- Occupational health & safety – organisations were initially forced to transition to a virtual environment with little to no notice. Beyond the obvious step of assessing the ergonomic set up for employees at home, what steps has your organisation taken to ensure that your staff are physically and mentally safe in a remote environment? Will it direct staff to obtain a COVID-19 vaccination, and on what basis?
- Workers’ compensation liability – the rise of remote working will inevitably lead to disputes about the boundaries of the remote workplace, where it starts and where it finishes.
- Tracking hours of work and preventing underpayments – record keeping is not only a legislative requirement for some employees, but a failure to implement accurate tracking measures can lead to costly underpayment disputes. Does your organisation properly record and monitor the working arrangements and hours of your staff?
2. Equal Employment Opportunity Compliance
One of the additional challenges with continued remote or hybrid working models is a perceived lack of employer visibility regarding EEO compliance.
The rise of remote working has seen bullying, discrimination and harassment materialise in different ways:
- Inappropriate workplace behaviour is less likely to be witnessed.
- The anonymity of virtual communications (such as email or instant messaging software) can lead to disputes regarding misconceptions and misunderstandings.
- The increased use of videoconferencing software can lead to changes in employee behaviour, particularly where traditional office or other professional atmospheres have been traded for a more relaxed home-based environment.
- For many, the stress of 2020 through lock downs and home schooling has prompted the need for additional support and accommodation on the basis of disabilities and family responsibilities.
We’re also likely to see debate about the extent to which employers can direct employees to obtain a COVID-19 vaccination, with some objecting to the direction on the basis of their disability, religion or political belief.
These challenges present an opportunity for employers to revisit their EEO compliance training and ensure it is contemporary and fit for purpose.
3. Rise of the Side Hustle
Did you hear about the two teenage entrepreneurs that made $70,000 over the course of a few months operating an E-Commerce store and selling brainteaser puzzles to bored Australians during lockdown?
2020 has seen the rise of the side hustle, enabling people to pursue creative interests or source alternative income.
It is generally settled that an employee’s private life is ‘out of bounds’ and beyond an employer’s jurisdiction. In very limited situations, an employer may have some rights to regulate an employee’s external activities, which may include circumstances where the:
- external activity is conducted during work hours
- external activity operates in competition to the employer’s business
- employee diverts business opportunities away from the employer
- external activity utilises the employer’s confidential or proprietary information, or
- external activity causes the employee to be fatigued at work.
The circumstances of each case will impact an employer’s options to respond to the issue.
Importantly, employers should ensure that any disciplinary action is proportionate to the relevant conduct. In Jackman v Lek Supply Pty Ltd  FWC 6154, Commissioner McKinnon ordered reinstatement of a worker dismissed for conducting personal business affairs during work hours (specifically, the employee had responded to a customer complaint relevant to her hobby business making and selling candles and other related goods).
In this case, the Commissioner acknowledged that, during working hours, the employee should have devoted her full attention to her employer’s interests. However, the conduct could have been rectified by a written warning, and there was no evidence to suggest that her employment duties and personal interests could not co-exist. This can be contrasted to other situations where external activities encroach on an employee’s ability to perform two jobs (e.g. see Bertos v Northern NSW Football Limited  FWC 2819), or where an employee uses an employer’s email and customer lists to set up a related business (e.g. see Post v NTI Limited  FWC 1059).
4. Casual Employment
Long term casual employment remained an unresolved issue for employers throughout 2020, particularly following the judgement in WorkPac Pty Ltd v Rossato  FCAFC 84 whereby the full federal court:
- awarded Mr Rossato, an employee engaged on an ostensible casual basis, the paid leave entitlements of a permanent employee; and
- rejected the employer’s proposition that a casual loading should be set off against the outstanding leave entitlements.
At the time of writing, the High Court has granted special leave for the Full Federal Court’s decision to be appealed, although in the absence of a national and legislated definition, casual employment remains a void of ongoing uncertainty for employers.
The federal government’s IR Omnibus Bill, which passed through both houses of parliament in December 2020, proposes to curb this uncertainty by offering the following definition of casual employment:
“A person is a casual employee of an employer if:
- an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and
- the person accepts the offer of that basis; and
- the person is an employee as a result of that acceptance”.
However, we can expect the Omnibus Bill to face continued opposition and criticism in the coming months, including from the Australian Labour Party whom have described the proposed legislation as ‘the worst attack on workers since WorkChoices’.
5. Wage theft and criminalising underpayments
For the most egregious underpayments, the federal government’s IR Omnibus Bill proposes to introduce criminal prosecution for employers that dishonestly engage in a systematic pattern of underpaying employees.
Maximum penalties are set to involve four years imprisonment, $1.11 million fines for individuals and/or $5.55 million fines for corporations.
It is not entirely clear how, if at all, the federal reforms will interact with the existing Victorian Wage Theft Act 2020 which is due to commence on 1 July 2021. It is possible that, should the federal government’s IR Omnibus Bill be enacted into law, the validity of the Victorian legislation could be challenged on constitutional grounds, rendering it obsolete.
However, irrespective of which regime will apply in 2021, employers can expect regulator powers (such as the Fair Work Ombudsman) to expand with a view to facilitating coercive measures, enforcement and deterrence.
Now more than ever, employers are urged to audit or health check their compliance systems to ensure they are providing minimum employment entitlements under the National Employment Standards and their applicable industrial instruments.
How we can help
If you would like support on workplace relations and future proofing your organisation, please contact do not hesitate to contact us.
Click here to register for a link to our recent webinar recording which takes a fresh look at workplace relations in 2020, and how you can best prepare your organisation for what lies ahead,