With the continuing impacts of COVID-19 many employers are asking the question of how do they manage their business and employees. We have compiled the common questions emerging to assist you if your business is facing hardship, down turn or closure from Government recommendations amid Coronavirus restrictions.

We encourage employers and employees to work together to find appropriate solutions that suit the needs of individual workplaces and staff. This may include taking different forms of leave, working from home, or taking extra precautions in the workplace.

If you have any questions about your workplace obligations or entitlements we will assist you as best we can, or you can contact the Fair Work Coronavirus Hotline on 13 13 94. Alternatively we recommend you speak with your local law firm to seek clarification and legal advice.

For further assistance during this time, The Victorian Chamber of Commerce and Industry is a great place for resources in relation to workplace matters and business support and they are currently offering free memberships (for one year). We encourage you to join up if you are not already a member. Click here to join.

Victorian businesses can also now call a dedicated VCCI hotline on 13 22 15 for the latest information on the COVID-19 response.

New Pandemic leave entitlement for most awards (11 April 2020)

A new schedule has been introduced in 99 awards* and the change takes effect from the employee’s full pay period on or after 8 April 2020 until 30 June 2020 (unless extended).

The schedule provides employees with

• Minimum of two weeks of unpaid pandemic leave
• The ability for the employee to take Annual Leave at half pay

Unpaid pandemic Leave

Employees can access a minimum of two weeks unpaid leave (and more if the employer agrees) if they have to self-isolate or following an enforceable government direction restricting non-essential businesses. The leave is available to full-time, part-time and casual employees and does not need to be accrued. It is available immediately to all workers.

Click here to see all of the affected awards.

Frequently asked questions: Workplace obligations and entitlements

When can employers direct employees to stay away from their workplace under health and safety laws?

The Workplace Health and Safety laws require employers to ensure the health and safety of their workers and others at the workplace. To meet this duty, you must identify risks at the workplace, and do what is reasonably practicable to eliminate those risks, or where this is not reasonably practicable, to minimise those risks.

In relation to COVID-19, like any risk, if the level of risk is assessed as being high then appropriate measures should be put in place to protect employees.  This may include directing the employees to work from another location (including from home), or put in place other controls that would minimise the risk of infection such as implementing forms of social distancing or delaying non-essential tasks.

There is no one size fits all approach.

The important thing is that you actively take every step you reasonably can to eliminate or minimise any risks to health and safety.

Of course, if you know a worker is confirmed to have COVID-19, you should ensure that the worker does not return to work while they are infectious. If you notice a worker exhibiting other signs they may be unwell (e.g. frequent sneezing) and you consider they are unfit for work, you should follow your usual workplace policies and procedures. This may include directing the employee to go home.

If employees are working from home, the employer should ensure that the home office of the employee meets the required health and safety standards.
Your industry body may be able to assist with a template or we have shared our Working From Home Checklist here as an example.

When can employees be stood down without pay?

Under the Fair Work Act, an employee can only be stood down without pay if they cannot be usefully employed because of a stoppage of work for causes out of control by the employer.

The option of standing down employees is very fact dependent and an employer should exercise cautiously.

Employees who are stood down without pay remain employed for the period of the stand down.

Whether the option of standing down employees is available in circumstances relating to COVID-19 is very fact dependent and an employer should exercise the option cautiously. The employer must be able to demonstrate that:

• there is a stoppage of work
• the employees to be stood down cannot be usefully employed (which is not limited to the work an employee usually performs)
• the cause of the stoppage must also be one that the employer cannot reasonably be held responsible for.

Some examples of when employers may be able to stand down employees include:

• if there was an enforceable government direction requiring the business to close (which means there is no work at all for the employees to do, even from another location)
• if a large proportion of the workforce was required to self-quarantine with the result that the remaining employees/workforce cannot usefully be employed
• if there was a stoppage of work due to lack of supply for which the employer could not be held responsible.

This is not an exhaustive list.

If an employer unlawfully stands down employees without pay, the employees will likely be able to recover unpaid wages. Employers cannot generally stand down employees simply because of a deterioration of business conditions or because an employee has coronavirus.

You should review the employee’s award, enterprise agreements or employment contract to determine when an employer can stand down an employee without pay.

Employers are not required to make payments to employees for the period of a stand down but may choose to pay their employees. Employees accrue leave as normal for the duration of the stand down.

Other options that an employer may consider instead of stand down include:

• seeking employees’ agreement to take paid (or unpaid) leave for a period
• in limited circumstances, directing employees to take paid annual leave
• in limited circumstances, negotiating with employees to change regular rosters or hours of work
• terminating the employment of the employees, in which case the employer may have to provide redundancy pay.

What if an employee cannot attend work because their child’s school has closed due to concerns about coronavirus?

Employees who cannot come to work because they need to care for a child whose school has closed will ordinarily need to use paid leave entitlements to be paid for their absence. Paid carer’s leave is available to full time or part time employees. They can take unpaid carer’s leave if they have no paid sick or carer’s leave left.

Casual employees are entitled to two days of unpaid carer’s leave per occasion.

Other arrangements that may be available include:

• working from home (if this is a practical option and consistent with any applicable award, enterprise agreement, employment contract or workplace policy) or other flexible working arrangements
• taking annual leave
• taking any other leave (such as long service leave or any other leave available under an award, enterprise agreement or employment contract).
• taking any other paid or unpaid leave by agreement between the employee and the employer.

What happens if an employee or their family member is sick with coronavirus?

Employers can direct employees who are sick with coronavirus not to come to work. Employers can do this if they’re acting reasonably and based on factual information about health and safety risks, which includes relying on the Australian Government’s health and quarantine guidelines.

Full time and part time employees who cannot come to work because they are sick with coronavirus can take paid sick leave.

If an employee needs to look after a family member or a member of their household who’s sick with coronavirus, they’re entitled to take paid carer’s leave.

Under the Fair Work Act, an employee is protected from being dismissed because of their temporary absence due to illness or injury.

What if an employee is stuck overseas or is required to be quarantined or to self-isolate?

The Fair Work Act does not have specific rules for these kinds of situations so employees and employers need to come to their own arrangement. This may include:

• working from home or another location (if this is a practical option), noting they should review any applicable enterprise agreement, Modern Award, employment contracts or workplace policies
• taking sick leave if the employee is sick
• taking annual leave
• taking any other leave available to them (such as long service leave or any other leave available under an award, enterprise agreement or employment contract)
• arranging any other paid or unpaid leave by agreement between the employee and the employer.

If an employee cannot work due to travel restrictions (for example, they are stuck overseas), they’re not entitled to be paid (unless they use paid leave entitlements).

What if an employer wants their employees to stay home as a precaution?

Under workplace health and safety laws, employers and employees have certain obligations and responsibilities as to health and safety.

Where employees are at risk of infection from the coronavirus (whether they have travelled recently or been in close contact with someone infected with the virus), employers should request the employee does not work during the quarantine period or works from home.

A full time or part time employee is generally entitled to pay when they are ready, willing and able to work but have been directed not to do so by the employer due to health and safety risks.

Where this is as a result of an enforceable government direction requiring employees to self-quarantine, there is no pay entitlement (unless leave entitlements are used). This should be considered in conjunction with applicable awards, agreements, contracts and workplace policies.

Employers should take care to consider their legal obligations as well.

When can employees work from home?

These arrangements are usually made between the employer and employee. Where the nature and suitability of work permits, and the employer wants to direct employees to work from home, review of awards, agreements, employment contracts and workplace policies are a necessity.

Health and safety laws are still applicable when the employee is working from home.

Employees who record their hours of work should continue to do so from home.

What about casual employees and independent contractors?

Casual employees are paid a casual loading instead of paid leave entitlements. As a result, they are not entitled to any sick or carers leave entitlements under the National Employment Standards. Usually they are also not entitled to any pay when they do not work (if they are sick or required to self-isolate).

This should be considered in conjunction with any applicable award, agreement, contract or workplace policy.
Under the Fair Work Act, independent contractors are not considered employees and therefore do not have paid leave entitlements.

There are however, special provisions for textile, clothing and footwear industry contractors. Where these provisions apply, the contractor is considered to be an employee.

Can an employer change an employee’s regular roster or hours of work?

Changes to employees regular rosters or ordinary hours need to be considered in conjunction with the applicable award or enterprise agreement.

Employers must:

• Provide information about the new change
• Provide opportunity for employees to express views about the impact of this new change
• Consider the views and impacts put forward by the employees

Some awards and agreements have a span of hours provision where the ordinary span of hours can be varied (such as to avoid crowds) or allowed by agreement.

The employees agreement is required when reducing a permanent employees normal hours.

Employers and employees can input Individual Flexibility Arrangements for variations to awards or agreement on when work is performed on an individual basis. These must be in writing and are subject to a number of safeguards to ensure the employee is not worse off.

Changes to rules about hours of work in the Hospitality Award?

On 24 March 2020, the Fair Work Commission made a determination varying the Hospitality Award. The determination inserted a temporary new Schedule L allowing for flexibility during the outbreak of coronavirus. It applies from an employee’s first full pay period on or after 24 March 2020 until 30 June 2020 and enables an employer to reduce permanent employees’ hours of work.

Schedule L adds award flexibility during the outbreak of coronavirus for:

• employees’ classifications and duties
• full-time and part-time employees’ hours of work
• directions to take annual leave.

There are rules about how much they can be reduced by and the employer needs to follow consultation requirements.

For more information go to Hospitality Award flexibility during the outbreak of coronavirus – Schedule L.

When can an employee take or be directed to take annual leave?

Usually leave taken is agreed upon between the employer and employee. Whether an employer can direct an employee to take leave in circumstances relating to COVID-19 depends on the award or enterprise agreement.

Typical circumstances where an employer may direct an employee to take annual leave are:

• Business is closed (for example for Christmas and New Year periods), this differs to closure related to COVID-19
• The employee has excess annual leave.

Under the Fair Work Act, if there is no award or agreement that applies the employer can direct employees to take annual leave if the direction is reasonable (this includes business closure because of COVID-19).

What if an employer needs to let employees go?

Decreased business activity may mean some employers need to make employee positions redundant. If this occurs, the employee may be entitled to redundancy pay.

Before an employee can be terminated the employer must comply with the consultation requirement in any award or enterprise agreement. A dismissal can never be a genuine redundancy under the Fair Work Act if there has not been consultation. It’s not hard to satisfy the requirement but it is a mistake many small businesses may overlook.

Employees are protected from unfair dismissal due to illness or injury, discrimination, for any reason that is harsh, unjust or unreasonable or other protected rights. These will continue to be in place for employees who have been impacted by COVID-19.

What are employees entitled to if they lose their job during COVID-19 outbreak?

Employee entitlements will depend on why their employment has ended. If the business closes permanently, they may be entitled to a redundancy payment. This arises when the employer ends the employment, as opposed to the employee.

Can employees be directed not to travel?

Employees can be directed not to undertake work-related travel by their employers if this is to meet healthy and safety obligations or a lawful and reasonable direction.

Whilst workplaces in some sectors will qualify to access these provisions it is important to seek advice before facilitating a stand down or redundancy to avoid the activity being in contravention of a multitude of sections contained in the Fair Work Act.

A number of local lawyers are offering our clients a free 15 minute phone call to provide advice on employing staff during COVID-19. These local contacts are:
Robertson Hyetts – Katherine Hietbrink or Kayla Kristensen on (03) 5434 6666
Beck Legal – Daniel Cole (03) 5445 3333
Jenny Fox, Workplace Advisor 0409 560 779