In the world of HR and business, we’ve had some big changes throughout 2020, not all of which were COVID-related. Leaving aside the Job Keeper and subsidy issues, here are just a few of the big topics impacting HR and business this year.
Workplace sexual harassment
We may not have heard that much specifically about the #MeToo movement, but significant claims of poor workplace cultures and occurrences of bullying and sexual harassment have regularly been in the media. In their report of the National Inquiry into Sexual Harassment in Australian Workplaces 2020, the Sex Discrimination commissioner reported an 8% increase in sexual harassment complaints to the Commission since COVID-19 hit Australia. Furthermore, they found that two in five women and one in four men had experienced workplace sexual harassment in the past five years.
While attention by the media gives a feeling of sexual harassment being more prevalent than it used to be, it actually appears to be giving people more confidence to come forward and speak about their experiences.
The High Court inquiry finding former justice Dyson Heydon sexually harassed associates has focused attention on systemic issues across the legal sector and a number of firms have taken a strict and transparent stance on reporting requirements for sexual harassment incidents. Of course, the problem is sector agnostic. Multiple allegations have been made against senior AMP managers relating to sexual harassment of subordinates, and Adelaide University is still managing the fall out of an ICAC investigation finding that former vice-chancellor Peter Rathjen sexually harassment two women. Airservices Australia has undergone extensive reviews by former Sex Discrimination Commissioner Elizabeth Broderick and former Federal Court judge Anthony North QC, who found the culture to be so toxic as to potentially compromise the safety of aircraft passengers. Also on the list are QBE, JB Hi-Fi, consulting firms EY and KPMG, major political parties, McDonald’s, and Queensland Ballet.
The CFMEU is back in the news for bad behaviour, having been fined more than $100,000 for right of entry breaches, and additional penalties being issued to three high level officials. It’s been another busy year of poor trade union behaviour with fines also being issued for blackmail offences, threats, abuse unlawful industrial activity and picketing.
The Rail, Tram and Bus Union (RTBU) in Victoria are reeling after a mass exodus of members following the RTBU striking an agreement with Metro Trains around rostering rules which drivers say put the community at risk.
The federal government has announced proposed laws that would give amalgamated unions (such as the CFMEU) the ability to vote to demerge. The Fair Work Act currently prevents parts of a registered organisation from demerging for five years. Attorney-General Christian Porter suggested that union members are currently denied the opportunity to exit ‘super-unions’ and move to another representative body if they feel their interests are not being met. The legislation passed federal parliament with bipartisan support last week.
Underpayment issues and ‘wage theft’
The Fair Work Ombudsman’s 2019-20 Annual Report revealed that more than $123 million was recovered for underpaid workers in the previous financial year. The issues continue with Enforceable Undertakings being signed by a variety of big and small businesses for a variety of infringements:
- Sunwater (approx. $2 million in underpayments)
- IBM (more than $12 million in underpayments)
- Western Power (more than $8 million in underpayments)
- Lush Cosmetics (more than $4 million in underpayments)
- Idameneo ($15.3 million in underpayments)
- National Library of Australian (around $250,000 in wage and super underpayments)
- $194,365 recovered wages for 186 fast food, café and restaurant workers in Melbourne’s Degraves Street and Hardware Lane
- $309,073 recovered wages for 369 hospitality workers in Brisbane’s West End
Big and small penalties have been issues to businesses for noncompliance, such as:
- Barry Café, Melbourne ($232,545 in penalties for deliberate underpayment of more than $180,000)
- Austop Natural Therapy and Supplies / Yin’s Chinese Traditional Massage ($19,100 in penalties for underpayment of $13,522 and providing false records to inspectors)
- Tac Pham Pty Ltd / Han’s Café Rockingham (penalties of $230,040 for repeat offenses relating to wage underpayment and record keeping)
- Clothing store, 316 Melbourne ($43,375 in penalties for failing to comply with a Compliance Notice regarding backpay and recording keeping)
In June and September this year, Victoria and Queensland passed legislation establishing criminal penalties for employers who deliberately underpay or don’t pay their workers correctly. I wrote about this a few months ago on LinkedIn and shared some quick tips on safeguarding against underpayments. A national system to address underpayment issues is also being considered in the bill being currently considered in parliament.
Federal government corruption allegations
Walk into many federal government departments, and you may not be able to pick who is a public servant and who works for a private business. Sound ridiculous? They have the same titles, sit in the same office but have different employers and very different pay packets. This is a trend that has been on the rise in Australia for many years. Defence alone employs about 17,400 public servants with about 28,600 civilian contractors.
The cost across whole of government is staggering, with a recent analysis of 120,000 federal government contracts suggesting the “private” labour bill has doubled in the past five years and is now worth more than $5 billion a year. It is a practice that has been labelled as ‘unconstitutional’, and potentially even illegal. Raised even as far back as two years ago, the federal government has made it clear they are in no hurry to establish a national integrity commission, despite receiving draft legislation on a proposed anti-corruption body last December. The draft legislation has only just been released and proposed that full Royal Commission powers would only apply for 20% of the federal public sector. With consultation only just commencing, we still have a way to go before any changes are implemented or have greater transparency into the goings on in public sector consulting and deals.
Industrial Relations Reform
I was delighted to participate in the submission process by the Australian HR Institute for the federal government IR reform agenda. Made public last week, the proposed reform package looks at five main areas of IR legislation.
- Casual employment
The reforms would require employers to offer permanency to casual staff after 12 months employment, working consistent hours for 6 months during that period. Workers can decline, but there is a process in place. The legislation also addresses ‘double dipping’ issues arising out of a Federal Court ruling earlier this year, whereby casual employees were paid annual leave entitlements on top of the casual loading.
- Award simplification
Hurray! A true simplification process is a looong way away, but the changes aim to simplify awards to make it easier for employers to navigate varying rates of pay.
- Greenfield agreements
The legislation would amend greenfield agreements (commonly used for construction projects) to exist for the entire duration of a large project. This would prevent industrial action from occurring mid-way through a project, and to offer cost security through bidding processes.
- Enterprise agreements
The better off overall (BOOT) test is expected to have increased flexibility and a 21 day approval deadline for enterprise agreements is set to be introduced.
- Compliance and enforcement
This is a big area with a number of changes which include:
- New funding for the Fair Work Ombudsman to establish a new advisory service for small businesses
- Improvement of educational activities from Fair Work
- Codifying factors taken into account for enforceable undertakings
- Introducing criminal penalties and new civil for dishonest and systemic wage underpayments
- Increasing penalties for sham contracting and non-compliance activities
- Support for employees in recovering unpaid entitlements
What can we expect in 2021?
Unfortunately, more of the above. The underpayment issues are not going away, and neither are issues relating to sexual harassment and bullying. What I sincerely hope is that Boards, CEOs and Senior HR leaders are reviewing their current systems, practices and cultures to improve their strategies to identify and respond to such problems should they occur. At the very least, having effective communication platforms in place to encourage reporting, and developing robust response plans to manage any issues are just the start.
Naturally, we will be keeping a close eye on the proposed IR reforms and will let you know our thoughts when changes are actually passed.
How do you keep on top of key HR issues impacting your business? Subscribe to our newsletter for straight-talking HR advice and news!