Businesses returning their employees to the office must implement appropriate control measures to manage the risk of exposure to COVID-19. Therefore, it is important to keep up to date with latest COVID-19 information and advice (Department of Health, Smartraveller website and advice from state/territory government agencies, including health departments and WHS regulators). Information per state can be found below:
Further actions employers should be doing the following at the workplace:
– Allow employees to work from home where possible
– Ensure physical distancing by keeping a distance of at least 1.5 metres between people. Where this is impossible, ensure different measures (such as screens)
– Encourage good hand hygiene by employees (washing hands for at least 20 seconds with soap and water, using alcohol-based hand sanitiser and practice good hygiene). Employers should provide soap and sanitiser in the workplace
– Ensure that employees do not come to the office when having COVID-19 symptoms and ask the employee to get urgent medical advice as recommended by the Department of Health
– Have signs and posters around the workplace to remind employees and others of the risks and measures necessary to stop the spread
You can also consider drafting a “Return to work Plan” or “COVID-19 Plan” to distribute within the workforce and/or to distribute COVID-19 instructions around travel, health and behavior in the workplace.
This may provide employees with peace of mind that this pandemic remains top of mind for the employer and will answer some (or most) of the questions employees may have, allowing your HR team to dedicate their time to other tasks. Businesses should consider their obligations under workplace health and safety laws in their state or territory.
– Return to Work or COVID-19 (Action) Plan including the return to work strategy, what to do if you feel unwell, what the employer will do in case of a COVID-19 case, what employees should do if they have travelled overseas or interstate etc.
– COVID-19 Instructions around travel, feeling unwell and behaviour in the workplace
– Hygiene posters (hand washing, coughing, social distancing)
What needs to be done to meet your workplace health and safety duty will depend on your circumstances. However, generally speaking the following should be done:
– Seek advice from health authorities immediately if there has been a confirmed case of COVID-19 in your workplace (National Coronavirus Helpline on 1800 020 080 or your state or territory helpline).
– Inform your employees, without disclosing personal data on the specific confirmed employee or other person and inform them of measures that will be taken.
– If needed (e.g. because of contact with other employees), instruct those employees to self-isolate.
– Ensure professional cleaning throughout the premises and consider closing the office.
If the direction from the employer is reasonable and in line with the employer’s legal obligations, an employee can’t refuse a direction to perform work. However, in some circumstances employees may be able to refuse to return because of a reasonable concern about their health and safety or another legitimate reason.
Employees who are sick with COVID-19 cannot attend the workplace due to the WHS legal obligations that both employers and employees have.
Employers can direct employees who are sick with COVID-19 not to come to work, get urgent medical attention and get medical clearance from a doctor before returning 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 should they have it accrued or other relevant leave as per the applicable Modern Award.
If an employee needs to look after a family member or a member of their household who is sick with coronavirus, or suffering an unexpected emergency, they are entitled to take paid carer’s leave.
If an employee does not meet the above eligibility criteria, an employer cannot force an employee to take paid sick or carer’s leave as a method to reduce accrued amounts.
Under the Fair Work Act, all employees (including casual employees) are entitled to 2 days of unpaid carer’s leave per occasion.
Full-time and part-time employees can take unpaid carer’s leave if they have no paid sick or carer’s leave left. Employers should consider their obligations under any applicable enterprise agreement, award, employees’ employment contracts or workplace policies, which may be more generous.
An employee must give their employer reasonable evidence of the illness or unexpected emergency if their employer asks for it. This will also apply to situations relating to COVID-19. Under the Fair Work Act, an employee is protected from being dismissed because of their temporary absence due to illness or injury.
There are no specific legal rules around these situations, except for new arrangements in 99 Modern Awards, so usually arrangements between employers and employees are necessary, for example:
– Working from home or another location (if possible);
– Taking sick leave (only if the employee is sick)
– Taking annual leave (there are possibilities to take annual leave at half pay if the employer agrees. This is now covered in 99 different Modern Awards)
– Taking unpaid leave
– Taking other leave available (e.g. long service leave)
Should an employee be required to self-isolate by the government or medical authorities and if the employee is covered by an award that includes a provision for pandemic leave, the employee can access up to 2 weeks unpaid pandemic leave (or more by agreement with their employer). The date before which this leave needs to start varies per Modern Award.
Different scenarios are possible here:
– If the employer directs the employee to stay home in line with advice (e.g. the Australian Government’s advice in relation to quarantine) and the employee is not sick, the employee has to be paid while the employer’s direction applies.
– If an employee cannot work because they are subject to a government order to self-quarantine (such as in place for all travellers returning to Australia from overseas), the employee is not ordinarily entitled to be paid (unless they use leave entitlements).
In this case, their inability to work is because of a government order, not an employer’s direction. However, should the employee be able to work from home, you could make different arrangements with the employee.
– If an employee cannot work due to travel restrictions (e.g. stuck overseas), they are not entitled to payment, unless they use paid leave entitlements. Should employees be stuck overseas due to a business trip or should the employee be able to work remotely, different arrangements can be made with the employee.
Note that enterprise agreements, modern awards, individual employment contracts, policies or individual arrangements can be more generous.
For example, If the employee is covered by one of the Modern Awards that still includes ‘unpaid pandemic leave’ can access up to 2 weeks unpaid pandemic leave if they are prevented from working due to self-isolation requirements by government or medical authorities or they can opt for annual leave at half pay (doubling their time off work) if the employer agrees. The timeframe in which these options are available vary per Modern Award.
No specific answer can be given, as workers’ compensation arrangements differ across schemes (per state) however there are common threshold requirements that would apply in the case of COVID-19:
It will be more difficult to prove that a disease was contracted in, or caused by, particular employment. In the case of a virus such as COVID-19, establishing the time and place of contraction may become increasingly hard, especially as employers are taking significant social distancing and hygiene measures.
Whether a claim for workers’ compensation for contracting COVID-19 is accepted will be a matter for the relevant workers’ compensation authority.
Casual employees do not have paid sick or carer’s leave entitlements under the National Employment Standards and usually are not entitled to be paid when they do not work (for example, if they miss a shift because they are sick due to coronavirus or because they are otherwise required to self-isolate).
Casual employees are paid a casual loading instead of paid leave entitlements. Employers should also consider their obligations under any applicable enterprise agreement, award, employees’ employment contracts or workplace policies.
Note that casuals and sole traders may be eligible to receive JobKeeper or JobSeeker payment.
Independent contractors are not employees and do not have paid leave entitlements under the Fair Work Act. However, there are special provisions that deem contract outworkers in the textile, clothing and footwear industry to be employees for the purposes of most protections under the Fair Work Act.
Where these provisions apply, the contract outworker should be treated as an employee.
Note that casuals and sole traders may be eligible to receive JobKeeper or JobSeeker payment.
Under the Fair Work Act, an employee is protected from being dismissed because of a temporary absence due to illness or injury. The Fair Work Act also includes protections against being dismissed because of discrimination, a reason that is harsh, unjust or unreasonable or another protected right.
These protections continue to operate in relation to employees impacted by coronavirus and therefore it is not likely you can dismiss an employee due to them contracting Coronavirus.
The workplace health and safety laws still apply if employees work from somewhere other than their usual place of work, which is normally the case when working from home.
Employers still have to do what they can to minimise risks at an employee’s home. Therefore, if you can, you should:
– Provide employees with guidance and instructions on maintaining a safe home office environment, including workplace set-up
– Make sure employees familiarise themselves and comply with good ergonomic practices. A working from home checklist can help with this
– Keep in touch with your employees daily and make sure what is expected from them. A working from home policy (either general or specifically for the COVID-19 pandemic) can help with this
– Consider access to an Employee Assistance Program and/or appoint a contact person in the company the employee can address in case of any concerns
– Ensure your current policies and procedures are in sync with employees working from home (for example, keeping attendance, time-sheets and requesting leave)
Possible new risks include:
– Physical risks from poor work environment, such as workstation set up, heat, cold, lighting, electrical safety, home hygiene and home renovations, and
– Psychosocial risks such as isolation, high or low job demands, reduced social support from managers and colleagues, fatigue, online harassment and family and domestic violence.
You will still need to do what you reasonably can to manage the risks to a worker who works from home.
Working from home arrangements are usually agreed between employer and employee.
Government measures are in place and, where possible, it is advisable to have your employees working from home. An employer who wants to direct an employee to work from home should review their obligations under any applicable enterprise agreement, award, employment contract or workplace policy.
Employers should also consider the nature of the work involved and the suitability of the employee’s home. Workplace health and safety laws still apply even when an employee is working from home.
Therefore, it is advised to formalise working from home arrangements in a working from home policy (general or COVID-19 specific), have employees sign a working from home checklist and to provide your employees with tips and tricks for working from home to ensure productivity,
Where employees are required to record their hours of work (for example, in relation to annualised wage arrangements under some modern awards), this needs to continue when they are working from home.
Employers and employees are encouraged to discuss how this should occur.
Employers may consider an Employer of Record (EOR) arrangement. As a service, this essentially refers to the outsourcing of all employer responsibilities and liabilities to a third party. EOR is also likened to Employment Outsourcing, Global Employment Outsourcing (GEO), Portage, or Co-Employment.
An EOR becomes the legal employer of your worker(s) and administers all local employment steps such as employment contracts, payroll, taxes & withholdings. Meanwhile, you remain in charge of the day-to-day management of your employees.
For their service, the EOR will issue an invoice with the cost of employing your worker plus a fee for management.
As most states and territories still have rules and recommendations about people working from home where they can. When returning to the workplace, alternative working arrangements can be explored, particularly while social distancing rules apply. Examples hereof are;
Also, rules in an applicable award, agreement or contract can be used to change hours of work or duties, or type of employment.
Before measures in reduction of (labour) costs are taken, it is important for employers to be transparent, build trust, and ensure leaders lead by example.
This can include announcing temporary management pay cuts and/or cancellation of bonuses. These measures can be announced prior to communicating measures impacting individual employees, for which their cooperation is needed.
JobKeeper payment is still in place and is intended to be paid directly to employers by the Australian Taxation Office (ATO), who then provide the payment to their employees. This arrangement reduces labour costs within the organisation and intends to avoid redundancies.
Further options to reduce (labour) costs can be:
– Request employees to take annual or long service leave – this may involve a direct costs, but reduces the contingent liability. This request starts the conversation on what employees would be prepared to do. Employees may appreciate the situation and are likely to try and do their part, especially as the alternative may be (mass) redundancies.
– Move employees from one part of the business (where there is a downturn) to another (where there is demand) – only when reasonably practicable and if an employee is willing to (temporarily) accept a change in role.
– Direct employees to take annual leave – this is only possible if an applicable enterprise agreement / modern award provides for this AND in case the employee has accrued ‘excessive leave’ entitlements. Usually the remaining leave balance should remain above 6 weeks.
– Agree to reduce working days – For example an 8 or 9 day per fortnight, or reduction in hours from 38 to 30 per week. Remaining hours can either be unpaid or e.g. annual / long service leave.
– Voluntary agreement to unpaid leave – Best to agree on in writing, so no misunderstandings can arise later and to show that this was not agreed on forcefully.
– Voluntary pay cuts – Temporary pay cut (for a certain period of time) of a percentage of the wage, with a regular review. Consent from the employee is necessary and consultation may be necessary based on applicable modern award or enterprise agreement.
– Terminate employment of employees on probation or with less than 12 months service by way of redundancy – In case of a dismissal during the probationary period, employees are not entitled to bring an unfair dismissal claim (either 6 or 12 months, depending on the size of the company).
Also, employees that have been employed less than 12 months are not entitled to redundancy pay under the National Employment Standards in case of a genuine redundancy.
– End casual employment arrangements
– Forced shutdown – If allowed by a relevant Modern Award (e.g. the Manufacturing Award)
– Stand down (see below)
For each option above it will be important to document the arrangements. Professional advice is strongly recommended to assess individual company circumstances and ensure compliance.
Please note that, there are special Coronavirus provisions in several Modern Awards (for example regarding ‘pandemic leave’, annual leave at half pay and other flexible coronavirus provisions.
You may be able to change your employee’s regular roster or hours of work. You will need to consult with the employee(s) about these changes under the applicable award or enterprise agreement.
Some awards include extra rules about this, but in particular you will have to:
– Provide information about the change
– Invite employees to share their views about the impact of the change (including to their family or caring responsibilities)
– Consider the employees’ views about the impact of the change.
Reducing a permanent employee’s ordinary working hours usually requires the employee’s written consent.
Under the Fair Work Act, there are two possible scenarios when it comes to legally standing down an employee.
The new stand down provisions in the Fair Work Act allow employers to give a direction (a ‘JobKeeper enabling stand down direction’) to the employee to:
– Not work on a day or days on which the employee would usually work.
– Work for a lesser period than the period which the employee would ordinarily work on a particular day or days.
– Work a reduced number of hours (compared with the employee’s ordinary hours of work)
and not be paid for the period that work is not performed.
An employer is allowed to do this if:
– the direction is given the employer qualified for the JobKeeper scheme.
– for the period of the stand down the employee cannot be usefully employed for the employee’s normal days or hours because of changes to business attributable to the COVID-19 pandemic or Government initiatives to slow the transmission of COVID-19.
– the implementation of the stand down direction is safe and specifically safe having regard to the nature and spread of COVID-19.
– the employer becomes entitled to one or more JobKeeper payments for the employee for the period that the JobKeeper direction applies.
– the “wage condition” is satisfied, the minimum payment guaranteed and the hourly rate of pay guarantee is met.
If an employer does not qualify for JobKeeper, an employee can only be stood down without pay if they cannot be usefully employed because of equipment break down, industrial action or a stoppage of work for which the employer cannot be held responsible. The most common scenarios are severe and inclement weather or natural disasters.
Standing down employees without pay is not generally available due to a deterioration of business conditions or because an employee has the coronavirus. However, some examples of when employers could be able to stand down employees include:
– if there was an enforceable government order or 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 no useful work was able to be performed in the business by the remaining employees/workforce
– if there was a stoppage of work due to lack of supply for which the employer could not be held responsible.
Please note this is not an exhaustive list.
Enterprise agreements and employment contracts can have different or extra rules about 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.
Employers are not required to make payments to employees for the period of a stand down but may choose to pay their employees. However, if your company is eligible to receive the Jobkeeper Payment there is an obligation to pass on the amounts paid out by the Commonwealth straight to the eligible employee(s).
Furthermore, employees accrue leave as normal during a stand down and employees are still entitled to be paid for public holidays that full during the stand down period. This is only if the public holiday falls on a day that the employee would have usually worked.
An employee is not taken to be stood down during a period when the employee is taking paid or unpaid leave that is authorised by the employer or the employee is otherwise authorised to be absent.
Many employers will need to lift the stand down directions they have given their employees when they start operating again. It is important for employers to stay up to date about any enforceable government directions in the relevant state or territory.
When a stand down is lifted, it is best practice to communicate with affected employees in writing. Consultation when lifting a stand down may also be a requirement under an applicable award or agreement, employment contract or policy.
An employee cannot refuse an employer’s direction to perform activities if the direction is reasonable. Employers do need to comply with their work health and safety obligations (see above) as well as any legal obligations and the employees’ usual employment conditions.
Note that the JobKeeper payments, rights and obligations still apply when employees are back in the workplace, as it is scheduled to end on 28 September 2020.
This is usually a last resort for employers, as you lose good people and the investment you have made in them, often over many years. Where possible, outplacement services may be offered as best practice to help any transition after redundancy.
A redundancy event may provide an immediate reduction in ongoing labour costs, but it does also come with (financial) challenges in making termination payments and paying out other entitlements as well as procedural compliance.
Any redundancy process is not simple in nature and consideration must be given to minimum requirements under The Fair Work Act, Modern Award(s), Enterprise Agreement, Individual Employment Contracts, and Employee Handbook/Policies & Procedures.
Employers should also be particularly mindful if there are multiple people having the same position title, and only a select number of roles are to be reduced. Further obligations may apply when multiple redundancies are to occur – this can include notification to unions and to the department of human services.
Redundancies may be avoided if your company is eligible for JobKeeper payment, which is intended to be paid directly to employers by the Australian Taxation Office (ATO), who then provide the payment to their employees.
Should redundancies be unavoidable, the employee may be eligible for the JobSeeker payment.
Please note that the advice and information above is general in nature, and accurate as of 02/04/2020. In providing to you this HR advice, Polyglot Group is not providing, and is not qualified to provide, legal advice. Advice provided by Polyglot Group should not be relied upon as, or in substitution for, legal advice by a qualified legal professional.
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