International Employment – Australia – Joydeep Hor

People + Culture Strategies (“PCS”) is a hybrid of a law firm and a management consulting business, established to be unlike any other legal firm given its emphasis on working with its clients to prevent disputation and legal problems arising within their organisations, as opposed to a mere “reactive” provider.

Founded by Joydeep Hor, Managing Principal of the firm, the unique Australian law firm specialises in the provision of legal and strategic advice to organisations on people management issues. In addition to this, the firm also specialises in a vast range of other areas, which include mediations, legal advice and consulting, coaching and investigations to name but a few.

During the first quarter of 2023 we have assisted clients to respond to a range of people issues including conducting an investigation into allegations of sexual harassment, negotiating an enterprise agreement for a healthcare organisation, helping a client protect their confidential information when an employee was setting up a competing business, representing clients before the Fair Work Commission (“FWC”) (Australia’s industrial tribunal) and conducting training sessions for our clients including our briefing on Australia’s new workplace laws, advanced people management intensive and legal fundamentals in HR courses.

The Government has recently introduced the most significant workplace reforms since the introduction of the Fair Work Act 2009 (Cth) (“FW Act”), and we have been advising our clients about what the changes mean for them. A key issue for our clients is the need to ensure they have a sophisticated program in place and processes to address sexual harassment and discrimination in the workplace. Changes to the FW Act and Sex Discrimination Act 1984 (Cth) (the “SD Act”) have increased employers’ obligations and introduced a positive duty on employers to prevent sexual harassment, discrimination and victimisation in the workplace. As part of these changes, we are working with our clients to assess their current program and determine what additional measures they need to put in place in relation to their policies, education and training, and, audit and risk assessments.

Employment in Australia is primarily governed by legislation and the common law, with the National Employment Standards (“NES”) in the FW Act creating minimum entitlements for most Australian employees. The FW Act is supplemented by other federal, state and territory legislative schemes pertaining to areas such as work, health and safety and anti-discrimination. Many employees will also be covered by industrial instruments such as modern awards or enterprise agreements. These industrial instruments stipulate different rates of pay and entitlements, which can create a plethora of different employment conditions that organisations must manage.

In addition to providing legal advice on complying with Australia’s workplace laws, the value proposition of PCS is to work with our clients as a value-creating business partner, providing strategic and commercial advice to prevent disputation, conflict and legal problems from arising. The PCS team works closely with Heads of HR, in-house Counsel and an organisation’s senior leadership team to ensure that these organisations are not just operating in accordance with the law but also acting in a strategic manner which is consistent with their organisational objectives and values.

Even prior to the impact of COVID-19 on workplaces, technological advancements have made it easier for employees to fulfil their job requirements from outside of the office, which has seen a rise in flexible work arrangements. The impact of COVID-19 and government-mandated lockdowns has further accelerated the move away from the traditional workday. An increasing shift in focus towards “work-life balance” has seen employers allow for more accommodating work arrangements that allow employees to balance their responsibilities and obligations outside of the workplace. While most remote working arrangements are discussed and agreed on a case-by-case basis, employees have entitlements under the NES to make requests for flexible working arrangements in certain circumstances.

Notwithstanding these developments, there are several legal complexities which employers have had to grapple with. One of the most important legal issues concerns work health and safety, with the employer’s duty to provide a safe working environment extending to remote working arrangements. As a result, employers must ensure that employees are able to perform their work in a safe manner from home, which has necessitated practices such as ergonomic assessments being conducted on the employee’s workspace. In addition to this, there are also psychological and mental health and safety concerns associated with long-term working from home arrangements, as employees no longer have any physical separation from their working environment. Employers also need to be aware that their employees may be working additional hours outside of their usual working hours, which can trigger issues around the maximum weekly hours stipulated by the NES and whether their remuneration is adequate, particularly if those employees are covered by a modern award or enterprise agreement.

There are no specific regulations or legislation which cover “digital nomads” in Australia. However, there may be taxation implications which affect employees who are working remotely overseas for the benefit of an Australian employer. There may also be long service leave implications if there is no sufficient connection between the employee’s service and their relevant state jurisdiction.

First and foremost, the main consideration around “work anywhere” policies is whether it is appropriate for the employer’s operations. While some roles in fields such as information technology may not require an employee to be physically co-located with their employer or fellow employees, there are many jobs and occupations which either cannot be performed remotely or would be detrimentally impacted by long-term and widespread remote working arrangements. Managing remote-workers or “digital nomads” also brings with it challenges around developing positive working cultures, increasing efficiency and maintaining morale and camaraderie amongst employees. If an organisation has decided to implement a “work anywhere” policy, it needs to ensure that it puts in place measures and mechanisms which help create open communication, regular touchpoints with employees and tools which allow it to monitor employee performance.

ESG issues have taken greater significance amongst many large and medium-cap organisations in Australia, particularly with issues such as climate change and LGBT issues becoming more prominent. As a firm which supports numerous organisations across sports, the arts and education, PCS is uniquely placed to assist clients with ensuring that its internal practices and strategies are aligned with their organisational values and objectives.

Outside of providing legal advice, PCS regularly conducts culture audits which assist organisations in identifying cultural and systemic issues through a process of diagnostic and substantive analysis. Using our signature “V-S-C Framework”, we assist organisations to identify underlying cultural issues and provide clear and practical recommendations to resolve any gaps that have been identified.

Industrial relations make up a significant proportion of our day-to-day work, with many of our clients operating in environments with a sizeable union presence and/or being party to an enterprise agreement. Outside of the legal complications associated with ensuring compliance with industrial instruments such as enterprise agreements, working in unionised industries brings with it the added dimension of managing relationships with the relevant unions.

To ensure that organisations can operate effectively in a unionised environment, it is essential they have a strategic approach to managing employees and unions. This is particularly relevant if an employer is negotiating an enterprise agreement and requires organisations to identify, plan and develop a clear communications strategy around issues that are likely to be contentious, such as pay increases and monetary entitlements.

PCS regularly advises and acts for international employers and organisations in all facets of employment law. PCS is the Australian member firm for Innangard, an international employment law alliance. Each Innangard member firm is individually recognised in its own country and jurisdiction for its expertise in labour and employment law issues, and member firms will often host conferences to provide updates on each jurisdiction as well as refer international clients to each other.

In addition to this, PCS’s Founder and Managing Principal, Mr Joydeep Hor, regularly attends and presents at international conferences, including the prestigious International Forum on Employment Law and International Bar Association conferences. Joydeep Hor is also the only Australian lawyer to be invited to be on the American Employment Law Council.

Over the past 12 months the Government has introduced a number of significant workplace reforms which have focused on preventing sexual harassment in the workplace, increasing the powers of the FWC, amending the enterprise bargaining regime and restricting the use of fixed-term contracts.

Further reforms are on the horizon. In March 2023 the Government introduced the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 to Parliament (“Protecting Worker Entitlements Bill”). The Protecting Worker Entitlements Bill focuses on increasing flexibility around the taking of parental leave, introducing the payment of superannuation as a NES and clarifying the coverage of temporary migrant workers. The Protecting Worker Entitlements Bill has not been passed by Parliament at the time of writing.

An additional tranche of reforms is expected later in 2023 which we anticipate will be focused on the rights of casual and gig-economy workers, introducing “same job, same pay” provisions in the FW Act and introducing terms of imprisonment for the worst cases of wage theft.