General counsel cannot allow employment laws to be “the tail that wags the dog” – they need to be on the front foot, argues one partner.
Speaking to Lawyers Weekly, Piper Alderman partner Tim Lange said that GCs need to take a hard look at where their businesses are likely to be once the coronavirus pandemic has come to an end and what an intact workforce will look like in order to drive new revenue.
Put another way, “don’t let employment laws be the tail that wags the dog”, he said.
“Once the decision is made what the business needs to look like at that time, you would be led by that goal, and look at how to get there. Employment laws will be one part of that equation. The employment law tools we have are not generally built for the scale and extent of interruption that will be experienced, and there will be a lot of grey area,” Mr Lange said.
“Resolving that grey area in favour of the business involves acting on a defensible and reasonable strategy. Technical rules around [stand down, shutdown, leave in advance], directing leave (of various kinds), managing workplace safety risks presented by the crisis are hedged around with what is ‘reasonable’, and might fall one way or the other depending on an objectively reasonable explanation of the need.
“Ideally, work out what you need to do to get through this, and see about early agreement with the workforce to get there, and then look to employment law mechanisms where agreement cannot be achieved. At all times, understand when those mechanisms will be available so you can move quickly if or when you need to.”
The GC will have to have a seat at the table in such times, Mr Lange argued.
“Every crisis management team should have an appreciation of what is possible and what is mandatory in terms of employment and safety laws, and it will be the GC that brings that to the table, likely assisted by external [advisers] who are steeped in this and can respond quickly.”
Planning for probabilities, he added, will be “critical”.
“Planning for more remote possibilities is also nice, but at a certain point musing on the possibilities will take you away from where your attention also needs to be, which is on active workforce management and communication.”
On the question of employees who have been stood down without pay or casuals whose work has dried up, Mr Lange said he expects there to be a handful of avenues “fully explored” in terms of claims.
“WorkCover claims alleging transmission of the virus at work or other associated injuries may be seen as a way to secure an income stream and in that event, steps to enforce workplace hygiene and proper management of stressed employees (including those working from home) will need to be shown,” he posited.
“For regular casuals, I expect an increase in claims that they are, in truth, so regular as to have at some point become permanent employees entitled to paid annual and personal leave.”
Finally, when asked he had any advice for GCs during this unprecedented time, he simply said: “Keep calm, and carry on.”