In this unprecedented era of coronavirus, it’s fair to say Fair Work Australia’s pandemic considerations have shifted. The Fair Work Ombudsman has announced key strategic priorities which will be the Commission’s focus across Australia for the next 12 months. The major concerns will look to support organisations and workplaces throughout the COVID pandemic, while refocusing elements of the law to ensure workplace compliance is in place.
If there’s one thing this pandemic has highlighted, it’s the clear lack of preparedness on the part of many organisations: easy to say this now of course. But the need for organisations to be better prepared, and more adaptable and flexible in the event of a global crisis, is clear.
The economic impact of this pandemic is undeniable.
In Melbourne, the numbers are continuing to escalate, against modelling, and the economy is being ground to a halt. ‘Second wave’ scenarios are also feared imminent in Sydney and Brisbane, causing borders to shut. All of these circumstances are forcing a different approach to the Commission’s work, highlighting their need to assist and support employers throughout this period.
Has the Fair Work Act Been Amended?
Fair Work Australia’s pandemic considerations for change under The Fair Work Act will include temporary amendments in light of these new world conditions. These amendments currently include the following:
- varying some awards to increase flexibility during the coronavirus
- variations on award provisions to give employers and employees the flexibility to negotiate and agree on alternative working arrangements
- changes to support the JobKeeper wage subsidy scheme
- variations to enterprise agreements
- the varying of a total of 99 awards, adding unpaid pandemic leave and annual leave flexibility
Underlying the changes to the Fair Work Act and Fair Work Australia’s pandemic considerations, is an increased flexibility for organisations trying to cope – often to survive – during the pandemic.
What Assistance is Available for Organisations at This Time?
Those workplaces that have been significantly impacted by COVID-19 have now been granted some reprieve by the Fair Work Ombudsman as the regulator looks to adopt a degree of flexibility in its enforcement approach in this new financial year. This is a key hallmark of Fair Work Australia’s pandemic considerations.
The Fair Work Ombudsman, Sandra Parker, highlighted the importance of not placing further strain or hindrance on employers already struggling.
“Some of our priority sectors have been seriously impacted by the pandemic and are under considerable financial strain…”.
“We are mindful that our regulatory efforts do not negatively affect already struggling industries, while also being sensitive to the nuances of each sector and the challenges each will face when recovering from disruption.”
Sandra Parker, Fair Work Ombudsman
A Continued Focus: Wage Theft…
Fair Work Australia’s pandemic considerations will continue to focus on the underpayment of wages by large corporations. In addition, the FWO will continue to focus on industries deemed to be high-risk, when it comes to underpayment of workers or non-compliance with Fair Work Australia’s workplace enforcement. These industries include horticulture, hospitality and franchises, amongst others.
Ensuring all employers are meeting their obligations under the Fair Work Act, remains a key focus. Now though, this focus is required to ensure employers are not only paying the correct and entitlements to workers but also, that employers have an understanding of the flexibility available during these times. Of particular note, the Fair Work Ombudsman stated…
“Large organisations need to place a much higher priority on rigorously reviewing workplace relations systems to ensure that paying workers what they are entitled to becomes the norm.”
Sandra Parker, Fair Work Ombudsman
From the Fair Work press release, Sandra Parker noted that the agency will provide education, advice, tools and resources to small business, and those hardest hit by the pandemic.
The regulator will also uphold the integrity of the JobKeeper scheme through appropriate compliance activities that resolve matters quickly and efficiently.
What are the Major Considerations Organisations Can Make Right Now?
There are provisions in the Fair Work Act 2009 (Cth) for organisations to be aware of during this pandemic. The opportunity for organisations to shift how their workforce is engaged are clear. These provisions in the act, include:
Redeployment
Employment contracts can provide employers with rights to redeploy employees into more productive positions in circumstances where they cannot be employed usefully in their regular position.
Given the escalating circumstances crippling businesses due to the pandemic, employers are encouraged to consider including clauses in employment contracts that allow an employee’s position or duties to be changed, provided the change is safe, and within the employee’s capabilities and experience.
Requirement to Take Leave
Throughout COVID-19, a number of measures have been introduced to increase leave flexibility for workers. These include amendments to long service leave legislation and modern awards, and the inclusion of leave-related provisions as part of the JobKeeper scheme.
It’s incumbent on the employer to ensure the flexibility offered in the Act is available to the relevant workers in their midst. A pertinent example in the time of COVID includes where the employer indicates that the requirement to take annual leave may be reasonable, if the employee has excessive annual leave accrued.
Work Health & Safety
Employers’ obligations to cover the work health & safety of their employees, remains when workers are required to work from home (WFH). In this scenario, employers are required to devise and execute strategies to enable them to meet these obligations, in the absence of actual physical oversight of the worker’s workspace.
These strategies include:
- a detailed WFH policy, factoring in all categories of worker categories
- checklists workers can use to self-assess the safety of their at-home workspaces. Safety factors include the ergonomics of their workspace; noise levels; trip hazards
In situations that transpire to be unsafe or unsatisfactory for the worker in the WFH situation, the employer needs to take steps to reasonably and practicably reduce the risk for the worker. For example, purchasing of ergonomic equipment (like chairs, monitors).
Importantly, employees must be mindful that there is a level of responsibility on their part, to establish a safe working environment at home. Where the employment contracts may include provisions whereby employees are to cover the cost of these items, it doesn’t remove the employer’s responsibility in this regard.
Emergency Plans
If your organisation didn’t have an emergency plan before the onset of coronavirus, it’s evident that it needs one now, and in preparation for any future events. Your emergency plan should deal with aspects including:
- managing the transition of workers from working in the office to WFH
- managing the needs of the contingent workforce in times of change
- communications plans, including the responsibilities of key leaders and managers
- robust BCP planning
And finally…
Fair Work Australia’s pandemic considerations are clear; this is not a time for organisations to shirk responsibility when it comes to their statutory obligations under the Act. Rather, their willingness to support organisations and industries is clear, and the emphasis on accessing the flexibility in the act, a priority. And in taking on the advice under the act will allow employers to ease the financial burden of these unprecedented times.
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If you would like to find out more about how we can help please contact us here.
