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Top 5 Tips for Employers to manage risk in 2022

Shawn Skyring ||

Depending on your industry, you may be operating your business from home, or you may be exercising a hybrid working model (balancing work from home with work from the office). Whatever your current method of managing your working arrangements with your employees, our experience of COVID-19 over the last two years, and of the ebbs and flows of professional legal services within the employment scape, has equipped us with a knowledge of the risks, experiences, and concerns of employers within these unprecedented times

We have prepared a short list of our top five tips for employers, to help you:

  • manage the effects of the COVID-19 pandemic on your business and working practices;
  • reduce and manage the ongoing pandemic-related risks, such as the upkeep of workplace health and safety obligations; and
  • run your business more smoothly as we continue to move through 2022 with the continued presence of the pandemic having an impact on our way of life.

Our Top 5 Tips

Tip #1 – Review and update your contracts of employment
Tip #2 – Review and update your employment policies/employee handbook
Tip #3 – Assess employee leave accruals (annual and long service)
Tip #4 – Be consistent in your management approach
Tip #5 – Review and update your workplace health and safety protocols

Tip #1 – Review and update your contracts of employment

Best practice suggests that you should review and update your contracts of employment from time to time, regardless of whether there’s a global pandemic. Given the continued presence of COVID-19 in the community, as well as significant changes in workplace laws over the last 2-3 years (for example, in the Fair Work Act 2009 (Cth) (“the Act”) and modern awards), the need to review and update contracts is now particularly important.

It’s important to make sure your contracts are lawful and enforceable, reflect your current business practices (not those you had when the contract was signed), and appropriately capture any flexibilities practiced in your workplace (for example, employees may no longer be required to work at 123 John Street, Smithville because they work from home, but office use remains occasional).

A proper review and update of employment contracts should be undertaken by a professional to ensure effective drafting and enforceability. Our Team will guide you through the implementation of your updated contracts to ensure compliance and assist you with communicating any changes to your employees..

Tip #2 – Review and update your employment policies/employee handbook

It is equally important that your workplace policies are reviewed and updated from time to time as these documents act as a supplement to the employment contract and provide structure to the different functions of the workplace.

Policies should be consistent with applicable laws, such as the Long Service Leave Act 1955 No 38 (NSW) (“the LSL Act”), accurately reflect current practices (such as working from home) and be consistent with what is written in your standard employment contract. At the same time, policies should not repeat verbatim the letter of the law. Your contracts of employment should never import any policies and procedures into them. This is because your business will require the flexibility to amend policies and procedures without being contractually bound to them.

Having an employment law professional undertake your policy review and amendment to ensure that your policies are up to date and appropriately tailored to your business and personnel.

Tip #3 – Assess employee leave accruals (annual and long service)

It has been widely published that employees are taking less leave than before the pandemic due to factors such as the inability to travel. Excess accruals can result in very costly final pay for long-serving employees. They also pose a potential health and safety risk to the business, as the failure to take time off can be a sign that your employees are at risk of burn out, a workers compensation claim, or that their workload is so great that they don’t feel they can have any time off. These are all red flags for an employer, that suggest a need to assess and possibly manage leave accruals.

In terms of annual leave, employees can be broadly separated according to whether they are award-covered (or covered by another industrial instrument, such as an enterprise agreement) or award-free. For modern award-covered employees, the relevant (and quite prescriptive) terms of the award will need to be complied with to avoid repercussion for breaching the award. For employees who are award-free, and to whom no other industrial instrument applies, a consultative approach should be utilised, taking into account any relevant contractual or policy terms. Particularly where no award applies, it is important to manage this process correctly, as award-free employees who exceed the award coverage income threshold ($158,500 as at 1 July 2021) can be a significant financial risk to an employer.

Long service leave (“LSL”) is governed by state and territory legislation. In New South Wales, the LSL Act prescribes that long service leave shall be taken “as soon as is practicable having regard to the needs of the employer’s establishment” (section 4(3)(a)), and according to a period of one month’s notice (or less where agreed with the employee) to be provided by the employer (sections 4(10) and 15A(3)). Excess accrued long service leave, at the rate of 2 months for 10 years, can result in a very costly pay out to a departing employee. For this reason, it is advisable to stay on top of LSL accruals and seek legal advice in the event that any conflict should arise.

Tip #4 – Be consistent in your management approach

This pandemic has demonstrated to us the importance of consistency now more than ever. Particularly, when people are being told to do something they don’t really want to do, whether it be wearing a mask in the workplace or getting vaccinated. It is common, in our experience, that some employees can look for holes in the process, or in the way they are managed, as a way to avoid compliance.

Whether you are undertaking a formal consultation process or undertaking ordinary day-to-day people management, consistency in your approach can reduce conflict in the workplace, employee dissatisfaction and the risk of complaint, either internally or externally. An employee who feels they have been treated unfairly because of a protected ground, such as their sex, age or family responsibilities, for example, may lodge a complaint to Anti-Discrimination NSW. If this happens, or if you suspect there is a risk of this happening, expert legal advice should be sought.

Tip #5 – Review and update your work health and safety protocols

All employers or businesses have an obligation under work health and safety laws to assess and manage the risk of COVID-19 to workers and customers. In the last two years, the risk profile of COVID-19 has fluctuated dramatically, and so too have the NSW public health orders. Employers have had to be incredibly versatile to ensure compliance with these orders and their WHS obligations.

Throughout the pandemic, our Employment Law Team has assisted its clients to comply with their legal obligations and to manage the risks of COVID-19 to their workplace, such as through the implementation of a COVID-19 policy. We appreciate that many new and uncharted challenges have arisen, such as where a worker refuses to attend the office while unvaccinated workers continue to attend. We advocate for the regular review of your WHS protocols to ensure that such concerns are dealt with in an efficient, consistent and lawful way and are tailored to the needs of your business.

At Coleman Greig Lawyers, we understand the immense pressure that has been felt, and continues to be felt, by employers as they continue to try to effectively manage workers during this pandemic. There has been no clear “blanket fix” for the challenges of running a business during a global pandemic, and we know how fatiguing this has been for everyone.

Our Employment Team has worked closely with its clients throughout the pandemic to provide tailored legal advice and support with the aim of managing and minimising the very real risk  created by COVID-19.

If you require assistance with undertaking a review and/or amendment of your employment contracts, workplace policies, or workplace health and safety protocols, or would like advice in relation to a particular COVID-19-related workplace issue, please don’t hesitate to contact a member of Coleman Greig’s Employment Law team, who would be more than happy to assist you today.

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