Navigating the changing employment legislation in these troublesome times.

For most of us, 2020 will be the most challenging year in our business lives on a whole range of fronts.

There are the commercial challenges with disrupted operations and cashflow and trying to keep people in jobs and supported while ensuring that we support ourselves as well through the pandemic.

Some businesses have been able to maintain at least some operational capacity as suppliers to permitted industries like construction or by pivoting their offerings like the distilleries that started making hand sanitiser instead, or all those restaurants and pubs that jumped into takeaway meals.

The government has invested a lot in JobKeeper and other supports for business that help, but there are still lots of challenges, not the least of which come with managing people. Let’s take a look at some traps for the unwary.

The basics still apply

The fundamental rules on employing and dismissing people are still there and you need to comply with them to minimise the risks of successful claims being made against your business and/or yourself.

You still have to give full-time and part-time employees notice as per National Employment Standards if you are terminating their services.

If you are terminating them due to redundancy, you still need to satisfy all three tests that make a redundancy genuine:

  • You don’t require anyone to do their job;
  • You have genuinely explored redeployment options in this or any related business (but don’t have any suitable redeployment options);
  • You have consulted with the employee about the decision to make their job redundant and what that means for them including any redeployment options

If the employee qualifies for a redundancy severance payment because you have 15 or more employees and the employee has been with you for at least 12 months, that must be paid except where,  in the case of genuine inability to pay, the Fair Work Commission (FWC, provides relief in full or in part from that obligation.

You also need to ensure that all of the normal compliance requirements like pay records and payslips are maintained even if people are not working because they are stood down. That is because they are still employees even if they are only receiving JobKeeper payments.

People can still make unfair dismissal or adverse action claims or bullying complaints to the FWC and they can still make underpayment and discrimination and non-compliance complaints to the Fair Work Ombudsman.

In fact, the FWC has reported a dramatic increase in the number of claims they are receiving since the pandemic started. So you need to be able to show that you have complied with your obligations and followed due process in your decisions and actions.

Jobkeeper and the Fair Work Commission

The temporary amendments to the Fair Work Act that enabled JobKeeper also conferred some powers on the FWC to deal with disputes in relation to a range of matters including:

  • Directions to reduce hours or not work at all
  • Directions to perform certain duties or do different duties or work at a different location including working from home
  • Requests to make an agreement to change an employee’s days and/or times of work
  • Requests that an employee take annual leave
  • Requests to engage in secondary employment, a request for training or a request for professional development

The FWC has produced a benchbook on JobKeeper disputes that can be downloaded from their website. In that, it specifically notes the FWC does not have the jurisdiction to make decisions in relation to whether an employer is eligible for JobKeeper or chooses not to apply for JobKeeper.

The employer and the employee must be eligible and enrolled for JobKeeper to access this special dispute settlement facility.

So you need to ensure that any direction that you give as an eligible JobKeeper employer is made in accordance with the rules and is substantively valid, ie there is a valid reason for the decision that was made.

Covid-19 amendments to Modern Awards

Many modern awards (including the Timber Industry Award 2010) now have a new Schedule X – Additional Measures During the COVID-19 Pandemic.

This has a limited operating period currently until 30 September 2020 but more than likely that will be extended especially given the continuing business restrictions operating in Victoria for some time to come.

This allows for:

  • employees to be provided with up to two weeks’ unpaid leave if the employee is required by government or medical authorities or on the advice of a medical practitioner to self-isolate and is consequently prevented from working, or is otherwise prevented from working by measures taken by government or medical authorities in response to the Covid-19 pandemic and
  • Instead of an employee taking paid annual leave on full pay, the employee and their employer may agree to the employee taking twice as much leave on half pay.

There are a number of conditions that are attached to each of these options and there is a footnote specifically warning against taking adverse action against an employee because of them exercising any of these workplace rights.

Also, because this is a provision of the modern award, it provides the ability for a dispute to be dealt with in line with the award Dispute resolution clause.

So what should you do?

As with any workplace relations matter, the keys to assuring compliance and minimising risk are:

  1. Understanding the rules and ensuring that you comply with them;
  2. Making sure that you have the evidence to underpin any decision that you make which might negatively impact on an employee;
  3. Communicating and consulting with employees as openly and transparently and in as timely a fashion as possible;
  4. Documenting/keeping records of your decisions and reasons and related communications with people;
  5. Having access to competent professional advice because workplace relations is really complex and has become even more so under the pandemic.

Peter Maguire is the owner and practice leader of Ridgeline HR, an award winning HRM consulting practice which he founded in 2000. Peter is an acknowledged expert in workplace relations compliance and also a high-performance leadership coach with over 40 years experience in HRM. Ridgeline HR’s byline is Helping PEOPLE in BUSINESS and that is essentially what Peter does – help business people with their people business.