22 June 2020

"No excuse not to consult" on RTW plans: lawyer

This article has been reproduced with permission from Jo Knox - HR Daily on 22 June 2020.

The shift to remote work occurred quickly and largely without consultation, but employers must ensure their return to workplaces factors in this important obligation, a lawyer warns.

The consultation obligation is a strict one under work health and safety laws, Bartier Perry workplace law and culture practice head James Mattson tells HR Daily.

"Even if that didn't exist, I think given the mental health issues and the anxiety, consultation is a very important thing to occur."

And he distinguishes between communication and consultation, noting that employers need to follow through with a process of listening to employees and potentially tailoring their approaches, not just telling them what is going to happen.

To be considered true consultation, the process should occur over a period of at least one month before employees are expected to return to the workplace, Mattson suggests.

This timeframe offers employers an opportunity to address employees' concerns and anxieties by "bringing people along on that journey".

In practical terms, "employers first of all should be using their existing work health and safety mechanisms – whether it's a committee, whether it's through representatives – engaging through that process as normal".

The planning shouldn't be limited to the management team, and employers also need to be supporting managers and team leaders who will be having conversations with employees and gathering information, says Mattson.

"This is about giving people not just a voice through a survey, but a real voice through your consultative mechanisms and getting that information about someone's anxiety and being able to address it."

Skipping consultation could cause an increase in stress and mental health claims, along with disputes in the Fair Work Commission; furthermore, employees can become disengaged and unproductive if they don't feel their concerns have been addressed.

"You may even see an increase in conflict in the workplace when people try to interact and someone is anxious about the level of that interaction, because there's not a shared level of comfort. Not getting people on the same page might increase the risk of conflict."

No rush to get people back

Consultation largely fell by the wayside during the switch to remote work because employers needed to make quick decisions in relation to safety, and some have ended up before the Fair Work Commission to defend their lack of dialogue, Mattson notes.

The return to the workplace, however, is not an urgent situation in which employers need to make tough decisions without consultation.

"I don't think we are in a position now where we need to rush to get people back. There is no excuse now not to consult."

The Federal Government has flagged a return to business as usual in July, but employers need to take the time to plan, says Mattson.

"There's time to do that because there's no magical return date. Everyone's trying to get back to normality and that's good, but how that looks will vary from business to business, team to team, perhaps even worker to worker."

To date, consultation has delivered innovative solutions that enable businesses to carry on while ensuring the safety of employees and managing their levels of anxiety, distress or disbelief, he adds.

"We do know that there are solutions. We do know that there are workarounds and you can achieve a good level of productivity through thinking outside the square. That's important in this transition. That's what I would encourage employers and managers to think about. Can we address the problem in a different way in this interim period, but still with the goal to get back to normality? Because there are lots of different ways to address things."