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Fwd Thinking Whats there to look forward to in 2022

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    Well, 2021 didn't exactly go as we expected it to.

    This time last year we thought the worst of the pandemic was behind us, with vaccines on the horizon to put Covid-19 at bay. Clearly, Covid-19 related issues will continue to be with us well into 2022, as we head towards a Federal election by May 2022 and calls for a review of our workplace relations system in light of the vast changes to working practices over the last two years.

    We hope you enjoy this edition of Fwd: Thinking where we consider our top 4 workplace issues for 2022:

    • The War for Talent: Recruitment and Retention in Australia 2022;

    • Respect@Work, psychosocial risks in the workplace and workplace investigations;

    • The ongoing impacts of Covid-19 to expect in 2022; and

    • Workplace related inquiries by the Senate of the Australian Parliament.

    We welcome your feedback about this edition.

    1. The War for Talent: Recruitment and Retention in Australia 2022

    Since April this year, more than 15 million people in the US have quit their jobs, in a phenomenon which has been dubbed the "great resignation". The UK and parts of Europe have seen a similar trend. A survey by Microsoft in March 2021 found that 41% per cent of the global workforce are considering resignation within the year.

    Australian employers are bracing themselves for the resignation wave to hit our shores. Australian data shows that 38% of workers want to leave their current employers in the next 12 months, and 73% of employers are already concerned about staff shortages. The trend is in contrast to just 7.5% of workers having changed their jobs in the 12 months prior to February 2021, being the lowest job mobility rate on record by the ABS, as workers bunkered down during economic uncertainty and lockdowns.

    As we embrace new ways of working and living, many Australian workers are reflecting on what is draining us - and what is sustaining us.

    What is driving this trend?

    The global pandemic has caused many working Australians to reassess where, when and how they work. As double vaccination rates surpass 90% and the 'unprecedented' gives way to the 'new normal', the focus of employees is shifting from practical to more philosophical career questions: What do we do for work? Why do we work? Who do we work for?

    More time with loved ones (or time separated from loved ones) prompted many to reassess what they value most. The absence of a commute and more flexible work hours meant that workers could dedicate more time to family and self-care – pursuits which now occupy a more prominent place in their lives, along with a greater focus on mental health.

    Greater autonomy over work schedules, as well as the ability to move to regional locations or overseas while retaining jobs has disrupted Australia's labour landscape. If a post-pandemic reality means people need to return to the city and office locations, workers might choose to give up their current job, rather than their new lifestyle.

    For many who were stood down for some time, especially in the hospitality and retail sectors, lost work opportunities led to disillusionment and a loss of passion. For others, the time gained created opportunities to upskill or retrain.

    After 20 months of upheaval and uncertainty, others may be suffering post-pandemic burnout. US surveys show that 85% of workers reported a decline in wellbeing through the various lockdowns. Essential frontline workers were exposed to health risks and demanding conditions, while those working remotely experienced an erosion of their personal boundaries.

    Without the stimulation and distractions associated with a varied schedule or a buzzing workplace – a sense of monotony bred boredom and resentment. This has caused workers to notice focus on job satisfacation. After travel plans were on hold and our environments grew stale, the opening of borders sees an outflow of talent as adventure-starved workers seek excitement and change – and for knowledge industries a likely "brain drain".

    History shows us that during turbulent times people cling to the status quo. Job shifts during Covid-19 were at an all-time low. As the forecast starts to clear, Australia might simply be playing catch up.

    Due to a confluence of factors, experts predict quit rates will peak around March 2022. In a post-pandemic world, employers can't just throw money and Friday night drinks at the problem in the hope that it will go away. Organisations must be open minded about how to engage and retain talent.

    So, what can be done?



    Prioritise listening

    recent study revealed that senior leaders were generally off the mark when asked what employees valued most in a career. In the midst of a war for talent, dissonance between leaders' perceptions and workers' preferences will be costly for businesses. Targeted personal conversations (rather than a reliance on pulse surveys alone) are more likely to achieve alignment. Organisations that upskill managers to have these conversations will reap the rewards. Rather than a "one and done" approach, the aim is to create an ongoing, open dialogue where workers feel comfortable to communicate what they want from their job (before they go looking for it elsewhere).

    Money talks – but you can't buy satisfaction

    While a potential employee may only consider a job if the pay is 'right' or 'fair', research shows that money won't keep unsatisfied employees in their jobs. Market-competitive remuneration and reward is essential to attracting talent, but when thinking about a sustainable value proposition, leaders need to dig a little deeper.

    The employee experience

    Employees increasingly expect to be treated as a human being rather than as a human doing. HR leaders are looking beyond employee satisfaction at work, and asking how they can improve employees' lives as a whole. It is incumbent on employers to devote adequate resources to health and wellbeing initiatives, and to foster a culture of inclusivity and support. Managers should set the tone from the top by promoting a balanced life and bringing their full selves to work.


    Even as stay-at-home orders eased in early 2021, the number of people working from home across Australia remained around 40%. Studies show that the majority of workers want to continue to work from home at least some of the time. Flexibility is now a hygiene factor rather than a drawcard, on par with workplace health and safety and fair remuneration in the hierarchy of employee needs. (We address remote work and the changing expectations arising from the pandemic in more detail in the 'Ongoing Impacts of Covid-19' section below).

    Deals and dollars

    Employers should ensure that employment contracts include sophisticated non-competition and non-solicitation restraints to secure top talent. Referral and sign on bonuses will continue to be a feature of recruitment strategies in white collar industries as candidate scarcity remains an issue.

    Wrap your arms around your people

    For many organisations, the commercial demands of the pandemic meant investing in people and culture took a back seat. Savvy employers will use the coming months to "re-recruit" their current teams. Instead of focusing solely on filling vacancies, employers must prove to remaining employees that they are highly valued. Sign-on incentives traditionally offered to new employees could be redirected to those who choose to stay with the company. Rewarding individuals for their contribution and providing opportunities for growth and career progression will make a difference. To improve retention prospects, leaders should implement changes that will make employees proud to work for the organisation. This could look like more corporate social responsibility initiatives or a more expansive and inclusive parental leave policy.


    2. Respect@Work, psychosocial risks in the workplace and workplace investigations

    The Federal Government's response to the Australian Human Rights Commission's March 2020 Respect@Work: National Inquiry into Sexual Harassment in the Workplace Report took the form of the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021. This Act commenced on 11 September 2021. The Act came into force without the changes proposed by the Opposition in Parliament that would have required employers to proactively eliminate sex discrimination, sexual harassment and victimisation.

    This proposed "positive duty" on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation as far as possible was one of the most prominent recommendations of the Respect@Work Report. This recommendation has been the subject of public debate about whether the Act went far enough to prevent sexual harassment in the workplace, and how employers could approach this issue in different ways to effect real changes within their organisations.

    Although the positive duty was not enacted, the expectations and requirements placed on employers by the community, employees, safety regulators and legislators are continuing to evolve in this space. Heading into 2022 we expect to see a shift towards a prevention and intervention approach and an increased focus on regulation of employers in line with the recommendations of the Respect@Work Report. Given the serious impacts that sexual harassment can and does have on psychological health, employers should take a more holistic approach and consider sexual harassment in the workplace as both an employment/discrimination issue, and as a work health and safety issue. These measures need to go beyond updating policies and procedures and online compliance training to drive meaningful change.

    A number of jurisdictions have also introduced, or are considering, codes about psychosocial risks in the workplace, breaking down the traditional safety/HR demarcation, and recognising "HR" issues as safety issues. We expect to see more interventions by safety regulators in this space in 2022.

    We are also seeing changes in the focus and approach of grievance handling policies and procedures, and investigation processes. Employers are focussing more closely on how they manage both parties to an investigation, recognising the importance of trauma awareness, and taking different approaches to achieve cultural (and societal) change in the recognition and treatment of women in workplaces. We expect to see this trend increase in 2022 following the release of the Australian Human Rights Commission's report into the Australian Parliament in December 2021, Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces.

    Our Employment and Safety Matters Alert provides further information on what steps employers should be taking to ensure that their processes and systems are directed at preventing and responding to sexual harassment, and psychosocial risks in the workplace more broadly, from both a preventative and responsive perspective.

    3. The ongoing impacts of Covid-19 to expect in 2022

    Australian workplaces have grappled with a range of challenges in 2021, particularly in managing a cohesive response to the Covid-19 pandemic. As we enter 2022, we expect Covid-19 to continue to impact Australian workplaces.

    Vaccination and mask mandates at work

    Mandatory vaccination requirements remain at the forefront of most employers' minds, evident as we saw record attendances at our webinars on mandatory vaccinations.

    As governments across Australia continue to revise public health orders, employers should keep up to date about the vaccination and mask mandates applicable to their industry. 2021 saw many employers requiring their employees to be vaccinated in accordance with public health orders, employer policies and other "lawful and reasonable directions". We reviewed the case law considering the reasonableness of these directions (all of which were upheld), in our Employment Alert here. One subsequent decision  by the Fair Work Commission has found that a failure to comply with consultation obligations under the relevant WHS Act meant that that vaccination mandate was not a "reasonable" direction at the time (albeit that it was lawful and reasonable in all other respects) requiring the employer to then engage in further consultation.

    Public health orders

    As State and Territory governments revise their Covid-19 responses, employers should stay abreast of changes, especially as public health orders begin to lapse.

    Working from home and return to work

    Under work health and safety laws, employers have a duty of care to ensure the health and safety of workers so far as is reasonably practicable while they are at work. This duty extends to employees working from home.

    As we head into 2022, we expect to see industries re-adjust their workplace policies and procedures to best manage working from home arrangements that continue from 2021, and an increase of claims for working from home equipment, expenses (such as power) and possibly injuries arising from poor home office set up. Employers should review their working from home risk assessment processes to ensure they can adequately respond to these expected claims.

    Recent studies show that working from home arrangements could also put employees at greater risk of experiencing family and domestic violence. Employers may need to place a renewed focus in 2022 on when, where and how their employees might be exposed to violence, and manage those risks by implementing control measures.

    Covid-19 disputes

    With the introduction of workplace policies and procedures to manage the risk of Covid-19, some employers may experience a rise in disputes in the new year. Claims could arise in relation to issues such as "lawful and reasonable" directions, discrimination and general protections, workers' compensation, consultation about workplace policies, as well as privacy considerations in managing employees' vaccination status. Claims that are currently before the Fair Work Commission demonstrate the importance of implementing well thought out and risk assessed policies and procedures.

    For more information about these possible claims, see our Employment Alert here.

    4. Workplace related inquiries by the Senate of the Australian Parliament

    In 2021 we have seen a host of Senate inquiries into a variety of industries and employment-related issues. Of particular interest have been:

    Unlawful underpayment of employees' remuneration

    Over the last 2 years, underpayment claims have been a core focus of the Fair Work Ombudsman and many high profile claims arisen from employer self-assessments and disclosures and FWO investigations. So, it is no surprise that an inquiry was established by the Senate into the causes, extent of, and effects of unlawful underpayment and non-payment of employee remuneration.

    In their submissions, unions have argued that underpayments are a deliberate effort by employers to save money and are reflective of a wilful blindness to employee rights. Unions have recommended several changes including:

    • Increased penalties for breaches;

    • Granting unions investigative powers under the Fair Work Act 2009 (Cth); and

    • Providing the FWO with greater resourcing to investigate these matters.

    The extent of the Inquiry's appetite for taking on any of these recommendations remains unclear, with the deadline for the delivery of the final report extended to 10 February 2022. However, the report is expected to focus on practical solutions to deter and prevent wage theft. Given the likely timing of the Federal election, any recommendations will be an area to watch for upcoming election campaigns and potential reforms of any Government post-election.

    Select Committee on Job Security

    The Select Committee on Job Security has been looking into the impact of insecure employment on the economy, wages and workplace rights, with a specific focus on the "gig" and "on-demand" economy.

    Unsurprisingly, over 20 unions' have made submissions to the Inquiry. Their submissions have focussed on the construction, manufacturing, mining and associated sectors, with widespread claims that the issues in these sectors, and more broadly, are driven by the shift towards a greater reliance on labour hire arrangements and the increasing casualisation of the workforce.

    Other sectors, including the gig transport sector and food delivery, have been subject to unions' submissions claiming that these sectors are seeing an erosion of working standards and the payment of below minimum wages.

    The Committee has so far released three interim reports, concerning on-demand platform workinsecurity in publicly-funded jobs, and labour hire and contracting. Some of the most notable recommendations from the majority Labor and Greens' reports include:

    • Expanding the definition of 'employment' and 'employee' in the Fair Work Act 2009 (Cth) to capture new and evolving forms of work;

    • Expanding the powers of the Fair Work Commission to order pay increases to rectify gender-based pay undervaluation; and

    • Ensuring that the wages and conditions of labour hire workers are equivalent to those that would apply under the Fair Work Act 2009 (Cth) had the workers been directly employed by their host entities, and the implementation of a comprehensive national labour hire licensing scheme.

    With Liberal and National Senators delivering dissenting reports on each occasion and supporting view few of the recommendations (and none of those listed above), this will be one to keep a keen eye on in the lead up to the election and the platform of any Government post-election.

    The final report will be released in February 2022.

    Inquiry into Road Safety

    The Inquiry into Road Safety is conducting an inquiry into measures to support the Australian Parliament's goal of zero deaths and serious injuries on Australian roads by 2050 (called 'Vision Zero'). The Inquiry is looking into a variety of practical steps in the short to medium term that may be taken to improve road safety with a focus on heavy vehicles and the gig economy.

    The Inquiry is set to release its final report in July 2022. We expect the final report will contain a range of recommendations, targeted towards both government and employers.

    Authors: Charlotte Ball, Lawyer; Lauren Satill, Lawyer; Ruby Wade, Lawyer; Jasmin Collins, Graduate; Isabella Wilson, Graduate; Katherine Swann, Graduate; and Chaya Herszbery, Seasonal Clerk.

    Editors: Trent Sebbens, Partner and Julie Mills, Global Practice Management Counsel - Employment.

    The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
    Readers should take legal advice before applying it to specific issues or transactions.


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