By Bethany Silverman
Six months into the COVID-19 pandemic, keeping businesses and livelihoods afloat is proving to be harder than ever. With Stage 3 restrictions re-implemented in Victoria, and the Federal Government announcing an extension of the JobKeeper scheme, (albeit with some significant changes) Australian employers face continued uncertainty and financial difficulty in the coming months.
But the pandemic has also changed our understanding of employment in more positive ways; from increased flexibility in working hours and locations to increasing the consultation and communication between employer and employee. I’m hopeful that despite all the bad, some good will be produced as a result of our experiences in 2020, that will shape and improve employment relations across Australia.
The end of JobKeeper
The JobKeeper scheme has thrown a financial lifeline to many businesses in Australia. However, on its introduction in March, the Federal Government announced that the scheme would end on 27 September 2020. It has now been announced that the scheme will continue into 2021, but with reduced payment amounts. You can read about the amendments to the scheme here.
Even with the extension of the JobKeeper scheme, businesses should still undertake an assessment of their operational requirements to determine what their operations and workforce will look like as the pandemic subsides.
For some employers, it may be necessary to engage in a restructure and/or redundancy process to protect the business in the long-term. In order to compliantly undertake a redundancy process, it is important that you understand the steps you need to take. We have outlined these steps in a five-part redundancy series (start by reading part one here).
Where businesses are undergoing an insolvency process, it is important to note that employees have the right, if there are funds left over after payment of the fees and expenses of the liquidator, to be paid their outstanding entitlements in priority to other unsecured creditors.
Workpac v Rossato
In the midst of the pandemic, a new case shook the entire employment relations system to its core. In the Workpac v Rossato matter, the Full Court of the Federal Court found that, due to a number of factors, including a roster set in advance, pre-filled timesheets and an ambiguous set of contracts, a casual employee was actually deemed to be a permanent employee and therefore eligible for permanent entitlements such as leave and paid public holidays.
Perhaps most concerningly, the Court found that the entitlement of employers to offset the casual loading paid to an employee against such entitlements, which was inserted into the Fair Work Regulations 2009 (Cth) shortly after the previous similar case of WorkPac v Skene, had no effect, resulting in the employer having to make additional payment. You can read more about this case here.
While the decision does not automatically entitle casual employees to claim paid leave, it is a warning for employers to engage casual employees as ‘genuine’ casuals, including on an ad hoc basis and/or with no expectation of continuing or guaranteed employment. Class actions have already been commenced against dozens of employers because of the Rossato (and earlier Skene) matter, and it remains an ever-present threat to Australian businesses on top of the concerns related to the pandemic.
Flexible working arrangements
With thousands of Australian employees set to return to work in the coming months, employers will be faced with questions about continuing the arrangements for flexible hours and/or locations that may have been in place for the last few months.
It’s important to understand that not everyone has the same needs and wants; while some employees may prefer to work from home, others can’t wait to return to the workplace. Employers should have open communication with each employee and team to determine and discuss the needs of the employees and the business, to make arrangements which best meet both sets of needs.
We expect to see an increase in request for flexible working arrangements under the Fair Work Act 2009 (Cth) and/or applicable Modern Awards as employees gradually transition back to work. It’s important to be aware of your obligations when responding to, consulting on, and making decisions on such requests.
And for those employees who are returning to work, be conscious of your Work Health and Safety obligations in this uncertain environment. See our article on returning to the workplace amidst a crisis here.
Businesses should be proactive in assessing their business’s needs in the coming months, including assessing whether any restructures and redundancies are required to ensure the viability of the business moving forward, evaluating how you engage casual employees, and preparing for changes to workplace flexibility.
For more information, or to discuss any of the issues raised in this article, please contact the team at HR Assured.
Bethany Silverman is a qualified Workplace Relations Consultant at HR Assured. She regularly engages businesses in matters of compliance and best practice. She has a particular interest in the performance management process.