Employment law issues for 2021


2nd March, 2021

Navigating important employment law issues in 2021

With the COVID-19 vaccine on its way in and JobKeeper on the way out, small business owners are dealing with nuanced employment law issues.

Considering the current state of affairs in other countries around the world, Australian SMEs are fortunate enough to be operating in a relatively stable environment.

But, despite the circumstances, our corporate sector is still facing uncertainties and challenges on many fronts, some of which impact the way employers are required to interact with their workers.

To gain insight into how small business owners should be navigating the complexities around employment law issues throughout 2021, we reached out to employment law expert and partner at Hall & Wilcox Alison Baker, asking for her thoughts on some of the unique challenges that small businesses are currently facing.

Bringing people back to the office

The office may still not be exactly what it was pre-pandemic, but now that governments are allowing businesses to reopen their office doors, employers are keen to have the team working together in person again – at least part-time.

But, with employees making the most of the additional flexibilities provided through working from home or being concerned about health issues with respect to being in public spaces and catching public transport, some employees may not want to return to the workplace.

According to Baker, managing the transition back to the workplace is a balancing exercise: weighing up the benefits of collaborative working and productivity gains against individual employee needs and preferences for flexible working arrangements.

“From a legal framework standpoint, employers must ensure they understand and follow the Government’s directions in respect to workplace density quotas, physical distancing and mask wearing requirements, and any other requirements under their COVID-Safe plan before directing employees to return to the workplace,” Baker said.

Baker recommends that employers run a critical analysis of their business culture and identify the benefits of employees returning to the workplace.

“If there are productivity outputs that rely on working onsite and certain collaboration KPIs that can only be met at the workplace, it is important those reasons are communicated to employees to encourage employees to return to the workplace.

“Ultimately, even if employees are not happy to return to the workplace, employers will (subject to limited circumstances) be able to direct employees to do so.”

Requiring employees to vaccinate

For the most part, the boundaries between personal life choices and the expectation of certain behaviours in the work environment are clearly defined.

Generally speaking, what someone does on their own time is their choice, but while at work employees are expected to comply with obligations outlined in their contract of employment and their employer’s policies and procedures.

But, vaccinations are one of the rare scenarios in which this line can become blurred.

In order to create a safe work environment an employer may seek to mandate that all employees receive the COVID-19 vaccine, of course compulsory vaccinations are a contentious issue and employees may object on the grounds of personal views they hold.

If this situation arises, Baker cautioned small business owners to tread carefully and run a risk assessment before raising any expectations.

“The business owner needs to think about the motivation behind mandating their employees to vaccinate,” Baker told The Pulse.

“For teams that work in close quarters and are often client-facing or dealing with vulnerable people, vaccinating may be required to maintain the safety of others, and an employer may therefore be justified in raising this expectation.”

Baker also noted that company-wide vaccination enforcement should be carefully considered, as it would be difficult to raise this expectation for some employees, such as those who work remotely and those whose work sees no substantial interaction with others.

“Whenever unsure about your legal requirements as a business owner, it is important to seek advice that is tailored to your specific circumstances.”

Managing large leave balances

With ongoing uncertainty about border closures and booking cancellations, many people have accumulated larger balances of annual leave than they normally do.

While large leave balances can be a major liability, Baker encouraged business owners to be aware of the legal framework surrounding annual leave accrual before taking any measures to reduce these amounts.

Baker explained that the first step to managing leave balances is understanding the legal framework and any modern awards or enterprise agreements that apply to the employer and its employees. The next step is to communicate effectively with the relevant employees.

“If you’re in the position to do so, make your employees part of the conversation by offering them a chance to negotiate,” said Baker.

“The ability to direct employees to take annual leave is limited is most circumstances, so if you are able to reach an agreement with an employee it will generally result in a better outcome for both parties.”

Preparing for life after JobKeeper

Another important issue that is likely to impact many small businesses and their employees is the imminent winding up of the Government’s stimulus lifeline program, JobKeeper.

According to Baker, small business owners who rely on this stimulus should “get their houses in order” and begin “preparing for life without JobKeeper”.

“Business owners need to critically analyse their organisation and finances and see how their bottom line looks without JobKeeper.

“If the analysis leads to the realisation that the business will not have the cash to pay its employees in the near future, next steps need to be thought out carefully.”

READ: Beyond JobKeeper and a roadmap for 2021

Baker implored small business owners to avoid making snap decisions and encouraged them to consult with their employees to come up with mutually beneficial solutions.

“Arrange discussions with the employees whose jobs are on the line and maintain a level of transparency about the business’s situation and how it impacts them.”

Placing an emphasis on employee wellbeing

The common theme among these strategies is that they all require a fair balance between ensuring you act within the legal framework and that you maintain lines of open communication with employees, which will assist in promoting employee wellbeing in these difficult times.

Working in flux is difficult and can take an emotional toll on employees, which is what led Baker to highlight the importance of running initiatives that focus on mental and emotional health.

“Initiatives focused on mental health and emotional wellbeing can instill resilience among employees and play a central role in an employer’s efforts to maintain a robust workplace culture,” Baker said.

“When the team feels connected and supported this can boost morale and confidence for the entire workplace.”

Keeping an eye out for employment law changes

Small business owners generally have their hands full with putting out the ad-hoc fires that occur. This can make it very difficult for them to be aware of the changes that are made to employment law every now and then.

One way to keeping a finger on the pulse of important changes is making a habit of visiting the FairWork Ombudsman’s website and reviewing the headlines.

While no small business owner can be expected to remain across every detail of each legislative change, it’s still important to know when these changes occur. By being aware of these nuances, employers can proactively reach out to their legal counsel and gather guidance on how their business might be impacted.