Business

JobKeeper and Workplace Risk

Worker along in office at night

Back to normal?

The JobKeeper initiative has provided business owners and managers with some additional and very positive options when it comes to retaining their workforce and re-engaging those employees who were stood down as a result of the present COVID-related business stoppages.

That said, it’s not all “business as usual” – when an employee walks through the doors, either physically or virtually, the business they remember (and the work that they did) may of necessity look quite different to when they walked out those same doors. And it’s likely to be different into the foreseeable future.

The JobKeeper program and the related changes to the Fair Work Act, whilst positive, may have some unintended consequences. Many businesses will see JobKeeper as a way to return their business to near-normal operation, but the conditions around the special directions that we give to staff regarding their work, and how we commit to maintaining and monitoring the holistic health and safety of our teams, will mean that some careful thought should be applied to how our people are engaged, deployed, and managed. This may present a rather wicked problem.

Can we choose who to re-engage?

The underlying premise of JobKeeper is that it provides an opportunity for all eligible workers to return to work – and indeed an employer must make that offer to all eligible employees. The point here is that an employer cannot pick and choose which employees to include in the program – all eligible employees must be notified and offers made. So why is this “bring everyone back” issue significant?

Depending on the workplace, we are generally dealing with a very diverse group of individuals, all with particular skills, personal circumstances, and characteristics. Whilst the Fair Work Act and associated JobKeeper legislation provide an employer with the ability to give a JobKeeper enabling stand down direction (discussed below), the health and safety of an already brittle and “at-risk” workforce is absolutely a live issue. The obligations to ensure the safety and well-being of employees, where work practices have changed and an “adaptable mindset” is crucial, become all the more compelling and complex in this “New Normal” environment – and it’s more than just dealing with the more obvious COVID exposure issues.

JobKeeper enabling stand down directions

The new provisions in the Fair Work Act introduced the concept of the “JobKeeper enabling stand down direction”. An employer must ensure that the direction is not unreasonable, and the directions proposed and implemented through a consultative (even case-by-case) process requiring consideration of the personal circumstances and responsibilities of employees.

These directions may include changes in the days and hours of work for employees, and we can expect that these directions will be very necessary in the current work environment. Perhaps most significant are directions around work duties and work locations – particularly from a workplace risk perspective. This issue of assigned duties and work location is potentially one of the more contentious issues when the business is weighing up how best to re-engage and re-deploy teams in a JobKeeper world.

An employer is able to direct an employee to perform any duties within their skill and competency (presuming that the duties are safe and the employee is licenced and qualified to perform the duties), and the duties are reasonably within the scope of the employer’s business operations. As we mentioned earlier, the business may have changed dramatically in the past several weeks, and this may require employees to be more agile and flexible when it comes to the duties assigned to them, so consultation is critical.

Employees may also be directed in terms of where they work, and that may be different from the normal workplace and include a “work from home” direction. The requirements here are that the place is suitable for the employee’s duties, does not require the employee to travel an unreasonable distance, and the work environment is safe.

Whilst organisations will have a formal work health and safety policy, the existing processes and policies are unlikely to have anticipated the current crisis. Under normal circumstances, we may not need to make any unorthodox changes to assist employees who would now be considered “vulnerable.” The most obvious of this group are those people who are, or are likely to be, at higher risk of serious illness if infected with COVID-19, but the health and safety risks extend beyond this – the proposed changes in work hours, work locations, and work allocation may have a significant effect on employees that would otherwise be considered “resilient” and present a not inconsequential business risk and potential legal exposure.

For instance, a team member may traditionally be employed to fulfill a particular position in a particular place – they have now been told that they are to be re-deployed to a completely different job (which is still within their capability). There may be exceptionally good business reasons for this redeployment, particularly where the business has “morphed” its service delivery and customer engagement models, but the employee may see this re-deployment as a threat. Change carries with it uncertainty – and in a workplace, this is highly destabilising.

Assessing the risk

Regardless of whether or not we are bringing back workers that might be considered vulnerable, undertaking both initial and ongoing risk assessments of the modified work arrangements is critical.

The issues around social distancing, cleaning regimes, and potential COVID exposure are reasonably well understood and most organisations have effective practices in place. The work health and safety obligations though run much deeper than this, and one size does not fit all, particularly when we are making JobKeeper enabling directions that materially change how we re-engage our teams.

The legislation in each State and Territory varies in some respects but is quite similar when it comes to assessing risks. In short, the various laws prescribe that where risks cannot be appropriately mitigated, employers and workers should consider alternate arrangements, and workers should not work in high-risk settings. Given the effects of social isolation, general anxiety about the pandemic, and the uncertainty of ongoing employment (and what that employment might entail) our deployment and management strategies cannot adopt a broad-brush approach.

People, even those who are most resilient and that have that “adaptive mindset”, are like expensive Swiss watches – a lot of complicated and delicate moving parts. Whilst an enabling direction may appear reasonable, and indeed may be necessary, unless we adopt a policy of careful consideration regarding the personal circumstances and predispositions of our teams in general and each employee individually, we may find ourselves in “unreasonable” territory.

In conclusion

The capacity to re-engage and re-deploy as necessary provides options when reinvigorating the business using the JobKeeper program – but our teams often will not see the bigger picture with which managers and business owners are dealing. Some tough decisions are being made about how, where, and when to utilise staff, and that can create tensions within staff. Right now, it’s important to be highly transparent and predictable in the way that we are managing and consulting our workforce to ensure that where these tensions arise they can be addressed quickly and effectively.

Disclaimer

This article is provided for information purposes only. The contents of this article do not constitute legal advice and should not be used as such. Formal legal advice should be sought in particular matters.

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Craig has taught on both the Legal Practice Course and Bar Practice Course for the past three years, and has been instrumental in the development of interactive and multimedia content, particularly for online course delivery. Prior to joining the legal profession, Craig worked internationally for many years as a managing consultant in the areas of corporate governance, risk management and organisational change. He has significant experience as a project director in technical and organisational projects for government and international corporates. Craig is a member of the Bar Practice Course Committee, and is currently undertaking a Masters of Law through QUT. Craig has a Graduate Diploma in Law, and is a member of the private bar. He completed the Bar Practice Course at QUT in 2003, was awarded the James Archibald Douglas prize and has practiced in a wide range of areas.

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