Employee Wellbeing from a candidate perspective.
Interview: Nikola Prestia from HR Legal spoke to WRK+ to help our audience understand the legal obligations employers owe to their employees when it comes to employee wellbeing.
Nikola Prestia is a Workplace Relations and Safety Lawyer at HR Legal providing strategic advice and solutions in response to client’s workplace relations needs. She was admitted to practice in the Supreme Court of Victoria and High Court of Australia in early 2016 and also holds a Certificate IV in Human Resources.
Nikola assists clients in adapting to constantly evolving and changing workplace laws and practices.
Drawing on her experience working within many different industries, Nikola provides strategic advice that is tailored to her client’s particular circumstance. In providing support to clients, Nikola strives to understand each client’s commercial objectives, together with the workplace cultures they seek to foster, and advises on a strategy which achieves these objectives while managing legal risk. Nikola also has a passion for supporting employers into the ‘best practice’ space, including by delivering training around matters such as workplace mental health and wellbeing.
Q1.
What are the minimum legal obligations in respect to employee wellbeing?
Employee well-being forms part of the health and safety framework in Australia, and each state and territory has its own work health and safety legislation, although it is largely consistent.
The primary legal obligation under safety law is to provide and maintain, so far as reasonably practicable, a working environment that is safe and without risks to health. The concept of ‘health’ includes psychological health, which of course is contingent on general well-being.
Further, safety legislation requires employers to proactively identify hazards and eliminate risks to health and safety as far as reasonably practicable. What that means is not just managing the consequences or waiting until an issue or incident arises, it's actually about taking those proactive steps to ensure safety and well-being in the workplace, which is an obligation by law. Being proactive and monitoring health and safety in the workplace is therefore key.
From a psychological and well-being perspective, this should also be combined with genuine supports like Employee Assistance Programs together with good systems of work, robust policies, training and monitoring safety in the workplace.
It is also worth noting there are new regulations due to commence shortly in Victoria and already in place in New South Wales regarding psychosocial hazards which explicitly require employers to eliminate or otherwise control psychosocial risks in the workplace including risks like overwork, bullying, aggression, and other inappropriate workplace behaviours or content. This is in my view inextricably linked to employee well-being given employees exposed to those sorts of risks in the workplace are far more vulnerable to well-being concerns.
Q2.
What are the legal risks of not appropriately managing wellbeing?
The obligations mentioned above are legal requirements, and breaches of work health and safety legislation can result in enforcement action or prosecution by the relevant regulator. In some cases, even officers can be held responsible for breaches of work health and safety legislation and that can have criminal consequences in the most serious of cases.
The other primary risk with not managing employee well-being from a health and safety context is that employees bring workers compensation claims should they suffer a psychological or physical condition or injury in the course of their employment.
Claims can be difficult to manage from an employer's perspective and can result in premium increases, and more importantly I believe all employers do not want to put any of their staff or other persons in the workplace setting at risk in respect to their safety, health or well-being. As such, maintaining those good systems of work and measures are a way of avoiding these risks.
There are also other types of claims employees can bring if employee well-being is not top of mind and inappropriate workplace behaviours or poor practices are allowed to flourish in the workplace, such as bullying or discrimination claims, and other complaints that can be made to various external bodies like the Fair Work Commission or Equal Opportunity Commissions. In saying this, of higher likelihood are non-legal risks like absenteeism, presenteeism, high turnover and poor workplace cultures, which are equally as difficult to manage.
Q3.
Hybrid working is something that employees are now seeking to assist with work life balance and wellbeing, what are the minimum legal obligations in respect to hybrid working?
Hybrid working has significantly increased as a result of the pandemic, with many employees now seeking to work from home to assist with managing their family responsibilities, or to suit their own personal circumstances. Under the National Employment Standards (NES), employees who have completed 12 months of continuous service and fall into one of the protected categories specified in the NES are eligible to request flexible working arrangements including hybrid work arrangements or to work from home. The protected categories are:
if the person is a parent or has a responsibility for the care of a child who is school age or younger;
if the person is a carer (within the meaning of the Carer Recognition Act 2010);
if the person has a disability;
if the person is 55 years or older;
if the person is experiencing family or domestic violence or supporting someone in their immediate family who is experiencing family and domestic violence.
The NES was obviously written a long time prior to the pandemic, so does not expressly contemplate the widespread hybrid and flexible working we are now seeing.
Further, the NES does not prevent employers from accepting flexible working requests from other employees not in those categories, and it is best practice to genuinely consider all flexible working requests which can assist in employee retention, improving workplace culture and the like.
Flexible working requests must be in writing and responded to within 21 days. Employers can refuse a flexible working request on reasonable business grounds, including for reasons such as the new working arrangements requested by the employee would be too costly for the employer and for other operational reasons.
It is also important to note that if the employee is covered by an award or an enterprise agreement, or if the employer has flexible working policies in place, different rules may apply.
Q3.
From a legal perspective, what are best practice strategies for employee wellbeing? Understanding what your minimum obligations are, is really key to that the employer can not only meet their minimum obligations, but exceed them and demonstrate best practice.
Further, conducting risk assessments for high risk areas in the workplace which have the capacity to impact psychological health is crucial and best practice so that the employer can understand what are those risks and when they arise to enable them to proactively manage these risks.
Additionally, having good workplace policies and processes, and ensuring leaders understand these policies and lead by example is best practice as it sets the tone from the top down for the whole workplace. Reviewing these policies and well-being initiatives at regular intervals is also important to ensure they are continuing to meet the needs of all parties and still providing a genuine benefit. These reviews are really helpful to assist the workplace in being agile to address different risks which may arise or change over time.
If you have further legal queries you can contact Nikola from HR Legal at nprestia@hrlegal.com.au or on (03) 9948 2450.
Watch the Wellbeing Initiatives at the 2022 Best Places to Work webinar below.
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