Behaviour, Conflict, Disputation and Entitlements: hot topics to watch out for in 2023

As we come to the end of 2022, we already have a real sense of the issues that will confront NSW Government based employers in 2023. It will be a busy year – as usual!

‘Quiet quitting’ and workplace discontent and stress has certainly seen issues of misbehaviour and conflict rise in the workplace. The election of a Federal labour government, and the pending State election, has seen a keen focus on industrial disputation. The level of industrial disputation is only likely to increase into next year. Then there is the ongoing focus on employee entitlements, including for a fair wage and to expose wage theft. The scene is set for an adventurous 2023.

Behaviour and conflict

Sexual harassment will remain a key area of focus for employers, with reform in this area ongoing. At the Federal level, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 will make significant amendments to the Sex Discrimination Act 1984 (Cth) to:

• make it unlawful to subject a person to a workplace that is hostile on the grounds of sex

• impose a positive duty to take reasonable and proportionate measures to eliminate, as far as possible, sex discrimination, sexual harassment or harassment on the grounds of sex.

These legislative obligations, consistent with the recommendations of the Respect@ Work inquiry, will require employers to adopt a more proactive and sophisticated approach to managing insidious workplace behaviours. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 will provide a regime for seeking orders to stop sexual harassment.

Psychological safety at work will also remain high on the agenda in 2023. Since 2015, there has been a 53% increase in claims for psychological injury across NSW. Important changes in NSW, focusing on improving safety, will need to be managed by organisations in 2023:

• the Code of Practice for Managing psychosocial hazards at work, launched in May 2021, has been heavily promoted by SafeWork NSW to ensure organisations have robust processes to identify and to manage psychosocial hazards at work

• on 1 October 2022, the Work Health and Safety Regulations were amended to impose an obligation to manage psychosocial risks. Psychosocial hazards can rise from the design or management of work, the work environment or workplace behaviours and interactions that may cause psychological harm.

In June 2022, Australia Post appointed a Chief Mental Health Officer. An example of providing resources – in addition to HR – to tackle difficult and perennial problems. What is your organisation doing to tackle these hazards?

Another key element to managing a workplace that is free of sexual harassment and psychosocial hazards is an effective and functional complaint management system. Too often, culture and workplace safety can suffer from inept handling of complaints. Further, in October 2023, the Public Interest Disclosures Act 2022 (NSW) will commence operation providing a simpler disclosure regime, reduced technicalities and enhancing protections. There is continued focus on the Federal whistleblowing regime. Organisations need to grapple with different complaint regimes and ensure that management are well trained to effectively and correctly respond to complaints. Without that in place, culture will suffer and discontent may rise.

Disputation

The State Industrial Relations (IR) system – which allows the easy notification and resolution of industrial disputes by compulsory conference – has provided a consistent and well known resource for government agencies in managing the impacts of industrial action. In particular, the NSW Industrial Relations Commission is empowered to make orders to cease industrial action.

The Supreme Court of NSW has recently issued penalties for “brazen and deliberate” contraventions of the Commission’s dispute orders: Secretary of the Ministry of Health v The NSW Nurses and Midwives Association [2022] NSWSC 1178.

For those organisations in the Federal IR system, it is expected that legislative change next year may increase the ability to take strike action against employers but will introduce the ability for the Fair Work Commission to get more easily and readily involved in resolving disputes. This is vital as there is ultimately no benefit for the community and stakeholders in prolonged disputation. There needs to be a mature approach to dispute resolution.

And as we learnt from Covid, one key step an employer can take in minimising the risk of disputation is to ensure it engages in meaningful and proper consultation with the workforce and unions about workplace matters. It may ultimately save you pain and time in the long run.

Entitlements

While the High Court decisions in WorkPac, Personnel Contracting and Jamsek provided certainty in determining worker status, this will remain an issue in 2023, with legislative reform set to establish new “objective” tests for determining status and providing rights for workers to challenge unfair contractual terms. Such reforms will re-introduce uncertainty and perhaps see a return to the days of the NSW unfair contract jurisdiction.

The gender pay gap will remain in the spotlight, with developments to prevent pay secrecy clauses and to tackle pay equity more aggressively on the agenda. An obligation to publicly report on the gender pay gap looks likely to be progressed.

Pressure on wages has seen the NSW Government increase the public sector salary cap. This is likely to continue. The way we work will remain a hot topic, with a continued focus on access to flexibility to remain a demand of workers and point of contention for organisations. Will such flexibility have a value in pay negotiations?

Other important initiatives focussed at addressing family and domestic violence will continue requiring employers to keep up to date with best practice.

Federally, the Secure Jobs, Better Pay Bill will enhance the ability of workers to seek flexibility and limit reasonable business grounds to refuse requests.

Wage theft will remain on the agenda, with criminalisation of wage theft likely to be part of labour government agendas.

What to do in 2023

A lot. It will not be dull. And with the wide breadth of psychosocial hazards, including the work environment and design, the only way to achieve compliance with all of the above is by organisations properly resourcing teams to achieve positive outcomes. 2023 will hopefully see the focus on Covid-related measures wane as we get back to the business of making productive and happy workplaces.

Author: James Mattson