Coronavirus: workplace responses and the future of work

COVID-19 is the single most significant event to impact the modern workforce and the far-reaching effects will likely continue once the current health crisis is over. Lawyers FELICITY EDWARDS and SAM JACKSON explore those impacts, including the legislative changes in response to COVID-19, the difficulties that have been faced by workplaces responding to COVID-19 and what ongoing changes they anticipate in the modern workplace as a result.

The impacts of coronavirus (COVID-19) on Australian workplaces and the broader economy have been extraordinary. The Australian Bureau of Statistics published its first statistics addressing the impacts of COVID-19 on Australian businesses on 26 March 2020. The survey was based on data collected from 1217 businesses and revealed that 49% of Australian businesses had already experienced an adverse impact as a result of COVID-19 and 86% expected to be impacted in the near future — we assume those figures have since risen. Unsurprisingly, the industries most significantly affected include accommodation and food services, arts and recreation services, wholesale and retail trade, information media and telecommunications, and health care and social assistance.

Professor of Economics at the University of Melbourne, Jeff Borland, identified — in his March 2020 report to the Fair Work Commission — that the current issue is labour demand and the future issue is labour supply. Professor Borland commented that businesses are likely to start experiencing the effects on labour supply if schools and childcare centres close and parents need to withdraw from employment, more employees (or the people they need to care for) become ill with COVID-19, and as fears about contracting COVID-19 increase within the community.

The Australian Government’s fiscal response has focused on supporting businesses. It has introduced JobKeeper payments, provided temporary cashflow support to small and medium-sized enterprises and not for profits (from 28 April 2020), provided temporary relief for financially distressed business (eg, increasing the threshold for statutory demands and bankruptcy proceedings, and providing relief from liability for insolvent trading), increased the instant asset-write off, and backed business investment. Time will tell if these measures significantly alleviate COVID-19’s impact on Australian businesses.

Regulatory changes in response to COVID-19

As at 16 April 2020, there are a myriad of regulatory changes affecting employer’s responsibilities, rights and obligations including:

• the commencement of the Treasury Legislation Amendment (COVID-19) Bill 2020 (NSW) on 25 March 2020, which amends the Long Service Leave Act 1955 (NSW) for a limited period of six months;
• temporary changes to the below Awards to provide more flexibility in relation to the range of duties an employee can perform, reduction of employee hours and the taking of annual leave — the changes are in effect until 30 June 2020 (unless extended):
  • Clerks-Private Sector Award 2010, applicable from 26 March 2020 (AM2020/10),
  • Hospitality Industry (General) Award 2010, applicable from 24 March 2020 (AM2020/8), and
  • Restaurant Industry Award 2010, applicable from 30 March 2020 (AM2020/11);
• changes to 99 modern awards at the initiative of the Fair Work Commission on 1 April 2020 to include provision for unpaid pandemic leave and the taking of annual leave at half pay; and
• the implementation of the JobKeeper scheme to subsidise the wages of eligible employees and significant amendments to the Fair Work Act 2009 (Cth) to enable employers eligible to receive JobKeeper payments to issue stand down and other directions and enter into agreements with those employees about certain matters.

Work health and safety during the COVID-19 pandemic

COVID-19’s exceptional circumstances are also having a significant impact on duty holders and their ability to comply with work health and safety (WHS) laws. Government orders for self-isolation and social distancing are creating additional challenges.

The starting point is that COVID-19 does not change existing WHS obligations, particularly the requirement for persons conducting a business or undertaking (including employers) to ensure, so far as is reasonably practicable, the health and safety of workers and other persons (Primary Duty). However, the concept of ‘reasonable practicability’ is critical in understanding how those work health and safety obligations can be met in these challenging times. Reasonable practicability requires an assessment of what a reasonable duty holder placed in the same circumstances or situation would have done.

The Primary Duty does not require all risks to be excluded or to ensure that work is completely safe. The Primary Duty requires duty holders to apply their mind to the question of the safety of the particular work being performed in the particular circumstances at that time. Any Court assessing whether a duty holder has taken all reasonably practicable steps in circumstances where COVID-19 has impacted upon WHS arrangements is likely to take those impacts into account.

Most WHS regulators across Australia have now recognised that the challenges arising from COVID-19 require flexibility, common sense and a practical approach. On 1 April 2020, Safe Work Australia (SWA) released a Statement of Regulatory Intent (Statement) setting out the enforcement approach to be adopted by all Australian WHS regulators (except WorkSafe Victoria) during the pandemic. Although the Statement explains that compliance and enforcement activity will continue, SWA confirms that regulators will focus on matters that pose serious risks to health and safety and will be flexible in their approaches. The Statement confirms that what is reasonably practicable may be different to normal operating circumstances.

At the time of writing, WorkSafe Victoria is the only regulator not to provide updated guidance on its enforcement strategies during the pandemic. But regardless of this, the above comments regarding reasonable practicability still apply in Victoria. Two of the more complex WHS issues facing duty holders during the pandemic are the move to almost entire workforces working from home and risks associated with worker wellbeing and mental health.

Working from home

A significant change faced by workplaces during the pandemic has been the shift to working from home. Many large employers now have thousands of employees working from home every day. The WHS issues associated with working from home are not new. Duty holders must still comply with their WHS duties and must take positive steps to eliminate or minimise, so far as is reasonably practicable, any risks to the health and safety of workers or other persons.

However, the key difference for duty holders is the reduced level of direct supervision and oversight over workers conducting their work from home. This will inevitably lead to a different risk profile, both from a WHS perspective and in relation to many other issues such as confidentiality, privacy and data security. It is vitally important for duty holders to identify, assess and control the changing nature of the hazards and risks in their business or undertaking. Similarly, duty holders may also have additional exposure to workers compensation claims while workers are working from home or remotely.

Some of the key considerations for duty holders include:

• providing guidance to workers on good ergonomic practices and a safe working environment,
• clearly communicating their expectations of workers while working from home,
• maintaining daily communication with workers, and
• considering alternative arrangements for supervision and oversight.

Mental health, social distancing and wellbeing

It is obvious to say that the pandemic is causing widespread stress and anxiety among the community. Workers are no different, and many will be suffering mental health consequences, some of which may be linked to the work being conducted during the pandemic. This could include frontline workers continuing to work in traditional workplaces who may fear being infected with COVID-19. It may also include workers performing their work from home who are subject to social isolation orders and are feeling lonely and isolated.

WHS laws define health to include both physical and psychological health, and WHS regulators have increased their enforcement activity substantially in recent years in the psychosocial risk space. Duty holders must therefore apply the usual risk-based framework to identifying, assessing and controlling risks associated with mental health and wellbeing during the pandemic.

Practical strategies for monitoring and ensuring the psychological health of workers during the pandemic include:

• having a strong approach to risk mitigation regarding COVID-19 spread,
• providing regular, calm, clear and consistent updates from senior levels of the organisation,
• encouraging reliance on trusted sources for information,
• staying in touch with all workers through buddy systems, regular team meetings, one-on-one check-ins and virtual coffees,
• providing support through employee assistance programs and offering education about coping mechanisms, and
• recognising that the reasonably practicable steps to support mental health may be different for employees with underlying health conditions, disabilities or those who are older.

Looking to the future — flexible working

Data reported by the Commonwealth Scientific and Industrial Research Organisation (CSIRO) in 2018 identified telework or “working from home” as an inconsistent but rising “megatrend” in Australian workplaces (the Report).

Under the Fair Work Act 2009 (Cth), an employee does not have a “right” to request a flexible working arrangement unless the employee is a parent, carer, has a disability, is 55 or older, is experiencing domestic violence or provides care or support to a family member. Even then the employee must have been working with the employer for more than 12 months, or in the case of a casual worker be a “long term casual employee”. The employer can refuse a request on “reasonable business grounds”. Therefore, whether an employee can work flexibly by teleworking depends almost entirely on the employer’s approach and attitude toward employees working from home.

Flexibility in the workplace is an ongoing challenge for many employers and while technological, communicative and digital advances allow for effective working from home arrangements, many employers are reluctant to break the traditional “at-work” employment model.

The CSIRO’s Report suggests reasons for this reluctance may include perceptions that:

• employees are unaccountable and unproductive at home,
• employers are not able to manage and fulfil their WHS obligations for employees working at home, or
• employees’ mental health is negatively affected due to things such as the inability to effectively communicate, ambiguity in roles, a decline in work–life balance and a reduction in support and feedback.

However, with the outbreak of COVID-19 and the consequent government directives and social distancing measures in place, many employers that would not usually accommodate working from home have been required to. This gives employers a chance to essentially “test out” the teleworking employment model and consider the effectiveness and workability of such an arrangement. It has also forced employers to set up work from home systems and processes that it may not have otherwise had in place. In the process of doing so, employers have also been prompted to consider how any of the above identified risks may be mitigated or eliminated, for example, with the implementation of policies and procedures, or further utilisation of technology.

It is therefore conceivable that many employers will experience the benefits of teleworking arrangements and find that the risks can be appropriately managed. In this sense, it is expected that many of the negative perceptions surrounding telework may shift, and COVID-19 could in fact break down some of the barriers and misconceptions associated with working from home, paving the way for a more flexible workplace in which an employee does not necessarily need any specific reason or special circumstance to telework. Of course, this will bring a new set of challenges for employers as the workforce continues to transform.

What does this mean for workplaces?

It goes without saying that the COVID-19 pandemic has thrust workplaces into unchartered territory and there have been some challenges for employers and employees as they navigate significant legislative change and new workplace arrangements. Arguably though, these workplace changes would have eventuated at some point and this pandemic has given both employers and employees the opportunity to see the benefits of workplace flexibility and implement changes sooner than otherwise would have occurred. It will certainly be interesting to watch the workplace continue to evolve once the health crisis has passed.

Felicity Edwards and Sam Jackson are Partners at Sparke Helmore Lawyers, an NSCA Foundation partner.

Image credit: ©stock.adobe.com/au/ty