Key insights into employment law and the HR landscape of the past year

In April’s HR Breakfast Club Forum, BAL Managing Legal Director, John Wilson of the Employment & Investigation Team, reflected on the notable themes of 2022/23, sharing his insights into recurring legal issues which the BAL Employment Team continuously encounter, and detailing the new legislative reforms which will soon emerge into our existing legislative framework.  

At the Forum, John shared valuable lessons into:

• complaint-handling as an integral feature of the HR landscape;
• the importance of monitoring and engaging HR in legislative changes; and
• two emerging areas of legislative reform to be mindful of.

Complaints Handling

Over the course of 2022/23, the BAL Employment Team have experienced a large influx of matters which concern issues arising from organisations mishandling internal complaints. The Team have also received various requests to draft presentations and policies which inform employers of their obligations and employees of their right complain. From this experience, John noted the importance of ensuring that organisation policies and procedures clearly reflect and holistically cover the processes which will be carried out in the event an employee complaint is received – this is especially the case in circumstances where the complaint may be escalated to the Fair Work Commission and/or Courts.

John also concluded that an appropriate handling of complaints is fundamental to ensuring that employees are adequately heard and that organisations comply with their obligations.

An effective and appropriate complaint-handling procedure would require:

1. Accessible and effective reporting;
2. Considerate, efficient and appropriate responding; and
3. Establishing proactive measures to limit/ prevent incidents which give rise to complaints.
4. Reporting

At the outset, John advised that an employer’s primary aim while conceiving of their organisation’s complaint-handling process should be to support targets of inappropriate behaviour. It can best achieve this by making reporting processes publicly available to all employees. Organisations should expressly advise employees of the most appropriate receiver for complaints (for instance, an immediate supervisor, more senior staff member or member of HR) of inappropriate behaviour at the earliest convenience.

John raised that a suitable location for this would be in an organisation’s harassment and discrimination policy, which should also include details as to how complaints are made – with John’s preference being both verbal and written reporting options to improve access. This policy should also instruct that reporting is strongly encouraged by the organisation, of both the targets of inappropriate behaviour and the bystanders who bear witness to it.[BR1]  Additionally, John noted that effective reporting requires employers to be aware of matters, to provide intervention and support where relevant, and to take steps to ensure that the inappropriate behaviour stops entirely and for all employees affected, not just the employee making the complaint.

1. Responding

Moreover, effective complaints handling requires considerate, efficient and appropriate responding, employers should not adopt a ‘one size fits all’ approach to resolving complaints. John suggested that employers consider alternative options which depend on the relevant circumstances and nature of the complaint, including:

• supporting the complaint-maker to overcome the situation themselves (where safe and reasonable);
• to privately discuss the matter with the respondent to convey concerns and reinforce the organisation’s policy;
• conciliation or mediation avenues; and
• to launch an investigation which is procedurally fair to all parties and apply the appropriate discipline.

Throughout this process, it is crucial for employers to maintain confidentiality as far as possible and to ensure that a worker is not victimised as a result of having made a complaint in good faith. John also raised that complaints should be resolved in a timely and efficient manner, and for employers to consider whether the individuals involved should be separated or if other relevant arrangements should be put in place until the complaint is resolved.

2. Proactive Measures     

Importantly, John called attention to the significance of organisations acting proactively to prevent and limit the number of inappropriate incidents within the workplace – especially in light of the recently introduced positive duties on employers. In doing so, he raised six key recommendations for employers to apply, these are:

1. to implement uniform induction and ongoing training for workers;

• to ensure all staff involved in complaints handling receive professional training (this includes team leaders, managers and executives);
• to carry out ongoing risk assessments to further identify and address workplace and contextual factors which increase risks;

• to compile regular reports containing complaints management data and risk assessment data received by management;
• to have policies which are clear about what to do when a complaint is made; and
• to reduce the tendency to have policies which are overly descriptive of general commitments.

Legislative Reform: What’s Approaching?

Following the 2022 Australian federal election, the Albanese government has been highly active in the employment law reform space, having just released four consultation papers stating proposals which may reform ‘employee-like’ forms of work and provide stronger protections for independent contractors. Noting this, John advised organisations to remain aware of these recent reforms, engage their HR departments in this awareness and consider how these reforms will personally affect them.

The Albanese government has alluded to implementing reforms which target labour hire arrangements and implement a ‘same job, same pay’ regulation. Additionally, a consultation paper released by the Department of Employment and Workplace Relations raised the right of businesses to have access to labour hire for genuine work surges and the right of labour hire workers to the same rate of pay (at least) as directly engaged employees, amongst two other guiding principles.

Closing Remarks

To conclude, John raised a series of proposals which may emerge in the coming year. Notably, the proposed update to the Fair Work Act 2009 (Cth) to provide stronger protections for workers against discrimination and the criminalisation of wage underpayments and reform of the civil penalty provisions under the Act.

To register for future HR Breakfast Club forums, visit our monthly forum page and register to attend.If you have any questions or wish to discuss your circumstances with a lawyer, please contact the BAL Lawyers Employment Law & Investigations team on 02 6274 0999.