Workplace Insights | The Future of Work

The Australian workplace has been going through a significant transformation in recent years, driven by various factors including technological advances and the normalisation of flexible working conditions as a result of the COVID-19 pandemic. As technology continues to evolve and the nature of the workplace becomes more automated and diffuse, businesses will be required to adapt to the new changes in order to stay competitive and ensure their workforce is engaged and meets the business’ evolving needs.

As such, we will be dedicating the next issues of our client alerts to a series on the Future of Work. These alerts will be designed to give our readers a preview of the future of work in the coming years, identify some of the challenges with which the business may be confronted and provide employers with ideas as to how they can ensure a workforce that is resilient and can adapt to changing times. In particular, in this series we will cover the following topics:

1. The changing nature of work itself;
2. Artificial Intelligence and its impact on work and employment;
3. Surveillance – what employers can and should be doing;
4. The use of biometric data and other sensitive information; and
5. 4-day work week and flexible work practices

Artificial Intelligence (“AI”), and other methods of automation, are one of the most significant and novel changes which will influence the Australian workplaces in the upcoming years. In fact, AI and other forms of automation, are already being used to automate routine and repetitive tasks in various industries such as financial accounting, manufacturing plants and equipment and transportation. Within the next couple of years, as technology and automation become more advanced, more businesses will turn towards AI in order to find ways to improve efficiency, eliminate human error and reduce the large costs involved in hiring staff. In the next edition of the series, we will delve into artificial intelligence, how it is being used in the workplace and steps that employers can take to ensure that they have measures in place to deal with the changes that AI introduces.

Surveillance – what employers can and should be doing
As technology advances, another extremely relevant topic will be surveillance in the workplace. At the moment, surveillance is already being used by employers to collect data and monitor workplaces in order to improve productivity. However, as technology advances, employers will be able to access more surveillance tools, including AI surveillance tools, to improve their surveillance. However, as more data is collected and more employers decide to increase their surveillance practices, we note that employers must balance the benefits of surveillance with their employees’ privacy. In that connection, it is important for employers to ensure that they are taking the correct steps to ensure that any surveillance that they wish to implement is proportionate and reasonable and most importantly, that they are not breaching their employees’ rights to privacy. In the edition on surveillance, we will discuss the intersection between employer’ right to surveillance and the employees’ right to privacy and provide employers with tips about which measures to put in place to ensure that they are striking the right balance.

The use of biometric data and other sensitive information
Biometrics security is the use of physical or biological attributes for authentication and identification purposes such as facial recognition or fingerprint scanning. Businesses have started to use biometrics in order to facilitate and streamline certain processes such as logging in to devices such as mobile phones and laptops. Further, businesses have also started to use biometrics to prevent security breaches, especially in light of recent security breaches around Australia. However, much like the use of surveillance, employers must also ensure that their use of biometrics does not interfere with employees’ rights to privacy.  As such, in order to ensure that employees’ privacy is upheld, employers must be proactive and must take reasonable steps to protect the storage and use of staff members’ biometrics. The article on biometrics will also discuss employers’ responsibilities when using biometrics and the intersection with privacy.

4-day work week and flexible work practices
In addition to technological advances, one common theme which has been discussed in relation to the future of work is the introduction of a 4-day work week and ongoing flexible work practices. The concept of a four-day work week, rather than the traditional and existing 5-day work week model, has been gaining traction in Australia, especially after a greater emphasis on work-life-balance after the Covid 19 pandemic. So far, the 4-day work week model has been trialled and implemented by businesses across the world, including in the United Kingdom, in New Zealand, in Iceland and in Spain. More recently, Workplace Express released a study which showed that that reducing working hours for the same pay can:

1. make organisations more productive;
2. increase the revenue of businesses;
3. increase employee wellbeing; and
4. result in less stress and burnout for employees.

In the series on the 4-day work week, we will discuss what a 4-day work week, and work flexibility more generally, would look like for employers and what the benefits and pitfalls these changes may bring.

Conclusion
Overall, the future of the workplace in Australia, is likely to be influenced by new technological advances and will likely continue the trend of a greater focus on flexibility and work-life-balance. As a result, in response to these changes, employers will be required to adapt to these changes and put measures in place to protect their businesses and their employees. We will take this opportunity to give employers some food for thought to enable them to navigate these rapidly occurring advances and changes.

Timely Tip

This is a timely reminder for employers to ensure they are conscious of modern award requirements and keep up to date with changes to any relevant modern awards that may be applicable to their business. Amendments to modern awards often require employers to make amendments to their employment contracts, their workplace policies and can result in major changes such as amendments to employee remuneration. As such, we encourage employers to regularly check these amendments to ensure that they are up to date and are compliant with the law.

Proposed changes to the Professional Employees Award 2020
A recent example of proposed amendments to modern awards includes the Fair Work Commission’s (“FWC”) proposed variations to the Professional Employees Award 2020 (“Award”) in January 2023 (“Proposed Variations”). The Proposed Variations, amongst other things, seek to clarify the coverage of the Award.

As the Award currently stands, the Award covers employees:

• performing profession engineering and professional scientific duties;
• employed in the information technology industry;
• employed in the quality auditing industry; and
• employed in the telecommunications services industry.

However, if the Proposed Variations are introduced, the variations will clarify these categories. As a result, some employees which did not previously fall within the ambit of the Award may be covered under the Award once these variations are introduced.

Further, the Proposed Variations to the Award, if introduced, will implement specific provisions which will require employers to:

• pay employees for hours worked in excess of 38 hours at specified rates; and
• pay employees for hours worked on the weekend or hours worked outside of normal business hours.

If introduced, this would be a critical amendment, as many employees working in professional services covered by the Award work in excess of 38 hours. It is also not unusual for these employees to work at night or on the weekend, and as such employers will be required to make penalty payments to these employees for these hours. As many professional employees are paid an annual salary, it is crucial to ensure that these salaries are sufficient to off-set these additional penalties. Moreover, if annual salaries are utilised, then the contracts of employment need to be appropriately drafted to ensure the elements in the Award are properly set-off by the annual salary.

Proposed changes to the remuneration of direct aged care workers
Further, the FWC has also recently proposed variations which, if confirmed, will require employers to increase the remuneration of ‘direct aged care workers’ staff by 15 percent commencing on 30 June 2023. Employees which will be covered under this proposed variation include:

• Personal care workers under the Aged Care Award 2010 (“Aged Care Award“);
• Home care workers who work in aged care under the Social, Community, Home care and Disability Services Industry Award (“SCHADS Award“); and
• Registered nurses, enrolled nurses, assistants in nursing and nurse practitioners under the Nurses Award 2020 (“Nurses Award“).

The proposed changes to aged care workers come as another reminder for employees to keep up to date with proposed and actual changes to the awards.

Changes to annual closedown provisions
Finally, there have been amendments to the ability of employers to standdown employees for annual shut down periods.  Many modern awards had provisions which allowed employers to effectively direct employees to take leave without pay during periods that the business was closed for an annual shutdown. These award provisions have been significantly altered and it is no longer permissible for an employer to direct employees to take leave without pay for this annual shutdown period.

This change means employers who wish to close the business but have employees who do not have leave, need to very carefully consider how the close down will occur without offending the award provisions. The award clause now requires extensive consultation and agreement with the employees. Employers who ignore the change and direct employees to take unpaid leave during a closedown period, will be in breach of the award and may be liable to pay the employee for the period.

These examples serve as reminders for employers to keep up to date with award coverage and changes to awards. It is very important that employers ensure that their employment contracts, policies, and payments are up to date with any variations made to applicable awards.

If you require any assistance or information in relation to this alert or timely tip, please do not hesitate to contact us.

This timely tip and alert are not intended to constitute and should not be treated as legal advice.