The road to normal

Fit-for-purpose economic support and industrial relations reforms have helped Australian workplaces navigate the challenges of the pandemic. By Amanda Stoker.

The following is an edited transcript of a speech delivered by Senator the Hon Amanda Stoker at the National Conference of the Australian Labour Law Association on 11 November.

Thank you for the invitation to speak today at the 2021 Australian Labour Law Association National Conference. I’d like to talk to about the changes happening in Australian workplaces right now, and the challenges they create for Government policy.

COVID-19 has changed the way we work

COVID-19 has changed workplaces across Australia. Some of us have converted kitchen tables to work stations, others have had to learn to juggle online meetings and home-schooling. Some have embraced the convenience of working from home, savouring the time saved on their commute. Many have missed the structure and routine of going to their office, or the comradery they have with colleagues.

Businesses have also faced challenges. Those able to remain open have had to install COVID-safe physical barriers, provide new personal protective equipment for staff, introduce physical distancing on site, or increase their cleaning and hygiene protocols.

Businesses that shifted to work-from-home arrangements have faced new challenges around the need to ensure a safe working environment for their staff.

Many workplaces have had to quickly adapt their practices and procedures to reduce work health and safety risks arising from COVID-19 and to manage the psychological effects of the pandemic on workers.

Throughout this period, we’ve seen employers and employees come together to navigate the crisis, quickly and intelligently responding to the challenges they face. And we’ve seen incredible innovation as a result.

Office workplaces transitioned to online and remote working in a matter of weeks, while restaurants and retailers pivoted to delivery-only models with contactless payments.

Some of these changes may be short-term, but many businesses, employees and governments are exploring the longer-term benefits of these changes.

In the restaurant and cafe sector, for example, industry leaders have indicated that since the onset of the pandemic revenues from takeaway and delivery have increased from 8 per cent to between 30 and 40 per cent. Most businesses expect this trend will continue.

This innovation and adaptability highlights the importance of good relationships between businesses and workers, and what can be achieved when government, industry and unions work together.

Economic impacts of COVID-19

Not everyone has been able to quickly adapt. The pandemic has caused enormous hardship for many individuals and families – those in hospitality, retail and tourism, have been hit particularly hard through the pandemic.

This hardship is never completely reflected in the statistics, but they do paint a picture of how Australia has fared throughout the pandemic.

Between March and May last year, as the full effects of the pandemic were starting to be felt, almost 860,000 people lost their jobs. In the June quarter of 2020, GDP fell by 7 per cent and we recorded our first technical recession in 29 years. Unemployment reached 7.4 per cent in June 2020 – the highest in more than 20 years. Businesses faced the prospect of having to let staff go, or worse still, close for good.

Thankfully, there were signs of recovery just a few months later. In the September quarter Australia’s economy begun two consecutive quarters of above 3 per cent GDP growth. By March 2021 we had surpassed our pre-Covid levels of GDP and employment. And over the past year there have been 40 per cent fewer businesses entering into external administration than over the same period prior to COVID-19.

How the government responded

This shows the incredible resilience of the Australian economy. But it didn’t occur by accident. It was the result of a series of Government policies that stabilised the economy and created the conditions for a rapid recovery.

The JobKeeper scheme and accompanying temporary flexibilities changes to the Fair Work Act helped keep people in jobs and allowed businesses to survive during the first stages of the pandemic.

According to a Treasury report released last month, JobKeeper saved more than 700,000 jobs and supported Australia’s world-leading economic recovery. The payment went to 1 million businesses, 99 per cent of which were small businesses or not-for-profit organisations.

The accompanying temporary flexibility changes to the Fair Work Act were used by an estimated 925,000 businesses during the first phase of the JobKeeper program, from 30 March to 27 September 2020, with arrangements covering approximately 3.6 million employees each month.

Overall, around 44 per cent of small businesses attribute their survival to the JobKeeper initiative.

JobKeeper had its place in the context of the country facing sustained and indefinite economy-wide shutdowns. However, this “one-size fits all” approach was not appropriate to address the more recent lockdowns that responded to localised outbreaks that impacted different parts of the country in different ways.

Instead, the Commonwealth acted quickly to roll out new, fit-for-purpose support to businesses and individuals who needed it.

The COVID-19 Disaster Payment supported workers by providing a temporary weekly payment to help workers in certain states and territories who lost hours and income due to a COVID-19 public health order, such as during a lockdown or due to restrictions on movement.

Industrial Relations Reforms

The Government has also been supporting jobs and economic growth by rolling out critical workplace relations reforms.

I am sure you are all aware of the reforms to casual employment in March this year where the Government successfully legislated to resolve uncertainty and confusion created by recent Federal Court jurisprudence.

There is now a statutory definition of casual employee – and its consistent with the principles that have since been articulated by the High Court in its unanimous decision in Rossato.

A casual employee is one who, at the time of offer and acceptance of employment, has no firm advance commitment to continuing and indefinite work even when their hours tend to follow a regular schedule.

I know there are some groups in our community that are concerned by what they suggest is an increased casualisation of the workforce. In fact, the proportion of the workforce that is casually employed has been stable for the last decade.

Nevertheless, we’ve acted to reassure people who are concerned about job security, by enshrining a right for all eligible casual employees to convert to permanent employment in the National Employment Standards.

After 12 months of employment, employers that aren’t small businesses will need to consider the working hours of their casual workers. If they have worked a regular pattern of work in the last six months, and their business is able to sustain the position, they must offer them permanent work.

For those eligible employees who work for a small business employer, they will have the right to request conversion after 12 months. All eligible employees will be able to make a request every six months.

Critically, it will remain the employee’s choice whether they convert. This is because many casual employees prefer the higher rate of pay they receive in lieu of the leave entitlements afforded to permanent employees.

Innovation and Regulatory Reform

COVID-19 has highlighted the precarious situation many businesses are in. One way we’re helping is by using technology to reduce the burden of government regulation.

The Government has funded a $9.9 million package to assist employers to use technology to comply with modern awards and reduce costs.

This funding will be used to implement the first steps of the Government’s Regulatory Technology Roadmap, which was co-designed with technology sector bodies, employer groups, unions, government agencies and using information from interviews with small business owners. The Roadmap provides solutions to help businesses navigate the modern awards system.

Regulatory technology solutions will allow payroll and business software developers to integrate, in real-time, data on award pay and conditions from the Fair Work Commission directly into payroll and business products at a lower cost. This will save employers time, allowing them to focus on growing their business, while also giving them and their staff greater confidence that they will be paid correctly.

Navigating a way forward

The benefits of these changes will outlast the pandemic. But first we have to get through it.

The good news is that we are entering a new stage of the pandemic and there is light at the end of the tunnel. New South Wales, Victoria, and the ACT are emerging out of lockdown, and even Queensland has set a date for opening the border.

As restrictions continue to ease, economic activity and the labour market are expected to recover quickly.

The Government remains committed to our economic agenda. We’re committed to helping Australians find work that meets their needs, ensuring small businesses have confidence to reopen and grow, and maintaining high participation, low unemployment and wage growth.

Many Australians are still feeling the impact of the recent lockdowns. But I am confident we are taking the right steps to ensure we are on the path to economic recovery.

My confidence stems from the fact that the Australian Government has, and will continue to, provide a strong economic framework that backs employers to grow, prosper and create jobs for Australians.

Vaccinations and the Return to Normal

Opening up the country in a careful and safe way is the highest priority of the Australian Government.

The National Plan is our path out. Based on Doherty Institute modelling, the National Plan outlines our transition from a pre-vaccination phase, focused on continued suppression of community transmission, to a post-vaccination phase, focused on learning to manage and live with COVID-19 – as we do with other infectious diseases.

As part of the National Plan, we asked Australians to get vaccinated. Millions of Australians have responded by rolling up their sleeve and getting the jab. To date over 36 million doses have been administered and 81 per cent of Australians over 16 are now double vaccinated.

The Australian Government strongly encourages people to get vaccinated, but vaccination should be voluntary. The remarkable response by the Australian community demonstrates that a voluntary approach to vaccination is working.

I recognise that state and territory governments have issued public health orders requiring vaccination for certain occupations and workplaces. People who, for whatever reason, have chosen not to get vaccinated are faced with the choice between losing their livelihood and reversing their decision.

This infringement on individual choice may be appropriate in a narrow set of circumstances where COVID-19 poses an elevated risk to vulnerable people – such as in hospitals and the aged-care sector. But some state governments have gone far beyond mandating vaccines for high-risk industries.

In Victoria and Queensland, unvaccinated people are set to face extensive and long-term restrictions on their basic freedoms. These policies risk creating a two-tiered society with some Australians denied freedoms that ought to be their birthright – not something the government can take away on a whim and without due cause.

In the case of Queensland and WA, this attempt to coerce people into taking the vaccine is a last-ditch attempt to cover for the state government’s own policy failures. Both states have bungled the vaccine rollout, and the Queensland government has totally mismanaged the healthcare system, leading to skyrocketing ramping rates and hospitals in Covid-free north Queensland issuing code yellows that direct ambulances to go elsewhere.

These represent significant policy failures at the state level, but we shouldn’t restrict fundamental liberties to compensate for these political failures.

Everyone has had time to consider whether they get vaccinated. The vast majority of Australians have decided to get the jab – and they’ve had ample time to make sure they’re protected. Some Australians have decided otherwise – whether for reasons of health, conscience or religious belief. They have voluntarily accepted the health risks, and while we may not agree with their decision, we should respect their right to make it.

Employer vaccine mandates

State and territory governments aren’t the only ones imposing vaccine mandates. Some businesses have also made the decision to require vaccination in their workplaces.

Employers considering a mandatory vaccination policy for their workers will need to exercise caution. Direction must be lawful and reasonable. Whether a direction is lawful and reasonable is fact dependent and needs to be assessed on a case-by-case basis.

To assist employers and employees to make informed decisions, the Australian Government has published advice on the website of the Fair Work Ombudsman, which includes the factors employers will need to consider and provides a 4-tiered guide of types of work and the likelihood that a vaccine mandate in each area would be reasonable.

There is also advice on websites of Safe Work Australia, the Office of the Information Commissioner, and the Australian Human Rights Commission. This guidance will help businesses and workers to understand their rights and obligations under workplace laws.

We encourage businesses and workers to take a collaborative approach and to make workplace policies according to what is needed to meet their work health and safety duties. There isn’t a one-size-fits-all answer. Businesses should do the risk assessment and if necessary seek further advice.

Business owners know more than anyone that our economic prosperity depends on avoiding lockdowns and keeping Australians safe and we know that there is likely to be much discussion in workplaces about vaccinations.

The Government has worked closely with industry, business and union groups throughout the pandemic to ensure their concerns are being addressed. We have consulted closely with peak business and union representatives to clarify the arrangements around workplace vaccination and work through issues of concern.

Conclusion

Australians have displayed incredible resilience and community-mindedness during the pandemic. The challenge for Government now is to navigate Australia into the final phases of the National Plan and re-open the economy safely.

Our nation and our economy has shown its strength and resilience in weathering the worst of the pandemic. There is an end in sight for these seemingly endless lockdowns, and the Australian Government will continue to support those who need it most through these difficult times.

Queensland Senator Amanda Stoker is Assistant Minister to the Attorney General, Assistant Minister for Industrial Relations and Assistant Minister for Women.