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  • Writer's pictureStephen Berriman

Opinion: the future of work and workplace regulation in Australia

COVID-19 has been a catalyst for immense creativity and rapid response. There are plenty of examples, including restaurants flipping overnight to takeaway models and numerous businesses pivoting in a flash to widespread working from home arrangements.

I am reminded of my old economics studies at Newcastle University and the words of Milton Friedman in the preface of his 1982 book Capitalism and Freedom: “Only a crisis – actual or perceived – produces real change. When the crisis occurs, the actions that are taken depend on the ideas that are lying around.” I add to this - in a crisis, people tend to change their minds when the old ways are found wanting.

So, what ideas are lying around? I won’t attempt any geopolitical, social, economic or technological ideas. The following thoughts are limited to the microcosm of the Australian workplace.

COVID-19 is with us indefinitely, a widely available vaccine is a long way off and there may be other viruses and disruptive events in the future. In response to the effects we have already experienced, many businesses are creating new products or services, a new marketplace, new ways of working, new relationships with employees, customers and other stakeholders and a new set of success criteria.

It goes without saying that the return to workplaces will be gradual and carefully planned to protect the health of employees, address their concerns and minimise the risk of infection spread.

We have witnessed constructive collaboration between employer associations, unions and the Fair Work Commission to create immediate and short term industry specific solutions to pandemic induced challenges. This needs to be an ongoing process – the re-emergence of the old gatekeepers in the collaborative role of thought leaders, standard bearers, change facilitators and regulators (styled as industry partners, problem solvers and guidance counsellors) – an alliance of sorts, supported by governments.

The challenge for business, union and government leaders is to create a permanent framework to enable people to work in agile, adaptive, collaborative and resilient ways. These are also some of the characteristics that a much needed overhaul of the enterprise bargaining regime, which has lost sight of its productivity roots, should be founded upon.

That permanent framework needs to accommodate the following:

1. Working from home, in various forms, which I predict to stay at high levels. The feedback I have received is that:

  • as autonomous architects of their own work day, employees have crafted their own work routines to best suit their personal circumstances, including working at unusual times;

  • the vast majority of employees have met or exceeded performance expectations from home, aided by time saved in not having to get ready to go to work, commute and attend useless meetings;

  • performance management policies and practices are being tweaked to manage a minority of people who are underperforming at home; and

  • leaders and business owners are questioning the need for big office spaces and big lease costs.

Where possible, people will continue to work from home under new policies and guidelines, punctuated by regular safe visits to the office to maintain motivation, social and professional connections with colleagues and psychological health.

2. New hiring, onboarding, training and performance management policies and practices to suit the vastly increased working from home arrangements, an accelerated shift to much greater online learning and new workplace health, safety and hygiene (whsh) rules.

3. Revaluing numerous front-line service roles like health practitioners (especially nurses), teachers, social workers, cleaners, supermarket workers and bus drivers. I haven’t heard anyone say, thank goodness in these crazy times for our derivative traders - not that they aren’t valuable!

4. Greater award and enterprise agreement flexibility provisions to facilitate prompt responses to:

  • new business and operational models and processes;

  • accelerated technological change, including automation and robotics;

  • skills gaps, including those caused by disruptions to tertiary studies and trade training; and

  • requirements for new roles and competencies and to assign employees to available work.

5. Revisiting flexible part time employment (what the NSW Business Chamber called perma-flexi), to enable greater flexibility in working hour arrangements, but also to allow employees on casual styled employment to accrue annual leave and personal leave according to the ordinary hours they work. While this was recently rejected by the union movement, it has operated successfully under workplace and enterprise agreements in several workplaces in the egg industry, with union support, since the early 2000s. The casual loading doesn’t pay the rent or mortgage when you’re sick and unable to work and we want to avoid, at all cost, people soldiering on whilst sick because they can’t afford not to work.

6. Changes to awards, enterprise agreements, employment contracts and contractor agreements to:

  • broaden the span of ordinary working hours; e.g. to encapsulate working from home arrangements, including employee-initiated routines and hours of choice;

  • stagger starting and finishing times and breaks and enable split shifts, in part to ease congestion at workplaces and on the way to work;

  • compel people to report respiratory illness symptoms;

  • direct people to go home if they present with respiratory illness symptoms;

  • enable workplace virus testing;

  • direct people to attend a medical practitioner; e.g. to be tested and/or cleared to return to work;

  • direct people to work from home or other premises;

  • stand down people, including by reducing their hours or days of work - styled on the current JobKeeper enabling stand down provisions, the need for which may exist after JobKeeper payments cease - if and when there is an outbreak within a workplace or government restrictions are reimposed, whether or not there is a ‘stoppage of work’;

  • enable ongoing flexibility in the taking of annual leave, long service leave and personal/carer’s leave; e.g. what if your absence from work is necessary because a colleague presents to work with COVID-19 symptoms and you have a person at home who is elderly or who has other health issues that cause greater vulnerability to or severity of COVID-19; and

  • continuation of a form of unpaid leave, styled after the recently introduced 2 weeks of unpaid pandemic leave, for employees prevented from attending the workplace as a result of government directives.

Many employers and employees can reach agreement on these things, given their workplace cultures and unfeigned mutuality of interests. Many have already reached agreement at individual and collective levels on a range of flexibilities. Some employers are sponsoring voluntary flu vaccinations and workplace COVID-19 testing. But, many can’t or won’t try in the absence of supportive laws. We need an enabling legal framework, with appropriate protections, which can be built upon the foundation of the temporary JobKeeper enabling directions and the recent temporary award variations.

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