COVID-19 restrictions have impacted our way of life enormously, with immense strain on many aspects of local council operations, including human resources teams and industrial relations management.
Closely following debilitating drought and a season of horrific bushfires, the challenges presented by the current pandemic has councils being called upon to support their communities and staff in many unforeseen ways.
Legislative assistance to councils has patched gaps as they emerged ad hoc, providing some financial and operational reassurance in the short term. But councils have many more industrial, human resources and work safety challenges ahead on the road to recovery.
Physical and mental health resilience will continue to be tested as life and work starts to resume – but not as we knew it.
Council work recovery plans will need to consider new ways of ensuring staff health, welfare and safety against the invisible threat of a second, or subsequent, wave of infection risk. Employees and their union representatives will be seeking more certain assurances that all reasonably practicable steps have been taken to prevent risk of infection in the course of performing work, whether that be at an employer's place or employee's place of work.
In time of pandemic risk management though it is important to remember that duties of care are reciprocal. Staff will need to be reminded that they have personal obligations and duties of care. This includes looking after not only their own health and safety, but also the health and safety of others whilst at work, or travelling to and from work.
There are many questions about what a return to work will look like and much will be dependent on government guidelines on return to work arrangements. Is it reasonably practicable to expect employees to wear face masks and eye protection, including in transit to and from work? Is more specialised personal protective equipment necessary for certain council roles? How should personal hygiene, including sufficient hand washing, and social distancing be reasonably enforced, especially for outdoor staff?
Risk management measures will likely need to extend beyond infection control.
Extended periods of pandemic resilience foreseeably contribute to mental health risks. Those with pre-existing mental health conditions may be at heightened risk.
Simple examples include self-isolation regimes, reinforced beliefs of those who have agoraphobic tendencies as well as public and employer reinforced messages about frequent hand-washing, all serve to justify and amplify obsessive compulsive disorders.
We are seeing clients asking questions relating to what extent an employer might be liable for mental health conditions resulting from extended periods of self- isolation, imposed on the workforce not by employer direction but government order. How can employers have control, or even know, if the risk of infection is from the workplace or from private social interaction outside work?
These are all issues that will be addressed and no doubt resolved in the coming months. As your advisers we will be keeping you up to date with best practice advice and legislation updates as they are put in place. In the meantime, communicating regularly with your staff and ensuring they feel valued and safe is where we all need to start.
Recovery and reassessment in the 'new normal'
When life is said to return to a new normal, employees who have been infected, or just affected by pandemic- imposed change, may also be questioning their legal position. They will likely ask themselves, or their advisers:
- Did my employer do enough during the public health crisis?
- Could more have been done?
- How did my council's crisis management rate compare to other employers?
This may prompt questioning of the perceived fairness of arrangements to use up accrued leave entitlements, to work less hours and to have had reductions in pay.
There will likely be new union expectations on consultation and COVID-19 risk managed change. Local Government (State) Award obligations on consultation are framed around councils making a definite decision before implementing major change. These consultation obligations are not well suited to changes imposed on council employers that may only be applicable whilst dealing with COVID-19, or which may change at short notice according to ever shifting government restrictions.
In our experience representing councils facing union consultation claims already, the NSW Industrial Relations Commission (IRC) appears to be expecting parties to engage in genuine consultations before making any COVID-19 related changes. This is despite the sudden need for local councils to anticipate or respond to COVID-19 close downs and public isolation orders.
As much as we hope it is not the case, if the road to recovery is hampered by a sudden recurrence of infection, and options to assist workers to access accumulated or special leave arrangements have dried up, what then? As a last resort, councils may need to consider applying to the IRC stand-down orders under s126 of the Industrial Relations Act 1996. It is not certain how the IRC will treat such stand-down applications. The provisions are framed on industrial relations concepts and 'break-down of machinery' conditions. councils will need to try and fit pandemic restrictions into the category of "any other act or omission, for which the employer or employers concerned are not responsible" and will likely need to have demonstrated that all other available workplace change options have been exhausted before seeking stand-down orders.
New opportunities and the importance of HR and IR led change
Given the inevitable challenges, the recovery stage will also be an opportunity to correct or reassess pandemic risk management plans.
No doubt there will be a lot of reflecting taking place over how this period unfolded and lessons should be documented and viewed as an opportunity for improvement. Considerations will include how key staff performed under pressure and whether staff properly adhered to the plan. How well did senior staff exercise all due diligence to ensure council WHS compliance? What could be done differently next time to improve work productivity and work health safety outcomes?
Successful pandemic management processes should also identify productivity and work efficiencies. Working differently in the interests of public health has driven rapid acceptance of flexible work practices and better use of technology to communicate, meet and collaborate.
One unexpected consequence has been a recalibration of the perceived seriousness of some workplace disputes. With the new perspective of passing on a potentially deadly virus to a work mate, disagreements over industrial grievance processes or failure to strictly adhere to policy, seem to now be less important.
In resolving disputes for councils during the COVID-19 crisis, we have already noticed a new willingness to reframe workplace issues and concerns for constructive solution, rather than to be immediately packaged up as a dispute for conflict resolution.
We have also noticed that COVID-19 delays in the courts and tribunals have encouraged industrial parties to look to alternate dispute resolution avenues for agreement. Such ADR options don't rely on adversarial concepts of 'winner takes all' for now, and 'loser comes back later to fight again another day'. Without the limitations of legislative remedies, a new wave of technology enhanced mediation encourages parties to think more creatively about less costly and more mutually satisfying solutions to past industrial relations problems.
Hopefully a new-found resilience during the COVID-19 pandemic crisis, and opportunities to reassess planning outcomes in recovery will foster a more collaborative, caring and innovative approach to solving workplace problems and disputes. If so, we will reluctantly be thanking a ferocious enemy virus for restoring the significance "human" and "relations" in HR and IR management.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.