Earlier this year we published a client alert to provide some general advice to employers in dealing with employees’ leave entitlements in light of COVID-19. That was on 21 February and since then, the COVID-19 landscape seems to be changing on an almost hourly basis.
On 12 March the World Health Organisation declared COVID-19 to be a global pandemic and on 15 March, the Federal Government issued the direction that all persons arriving into Australia must self-isolate for 14 days otherwise they will be committing an offence under the various pieces of State Public Health legislation and will be subject to significant fines. Furthermore, the Federal Government has mandated that everyone practice ‘social distancing’ and has banned gatherings of over 100 persons indoors and over 500 persons outdoors. As of yesterday, the Federal Government has also shut the borders to anyone who is not a citizen or permanent resident.
Our clients are rightfully concerned about the impact these measures will have on their businesses and, moreover, how to deal with their workforce following the inevitable downturn of business. In this article we expand on that initial advice to address some of those key current concerns.
Overseas Travel / Recreational Cruising
Employers have a duty under work, health and safety laws to use their best endeavours to maintain a safe work environment for workers and customers alike. Travel or overseas travel, whether by air or sea, now presents an unacceptable risk to health and safety until further notice. Whilst employers should not be approving annual leave requests for employees at this time, if employees take pre-approved annual leave and travel overseas, employers will have no choice but to issue a direction to those employees that they will not be permitted to return to the workplace until undergoing a period of mandatory self-isolation for 14 days, before being cleared to return to work by a qualified medical professional per the Federal Government’s “Direction”.
Employees subject to the Direction will only be entitled, if applicable, to take annual leave or long service leave where such leave is available. Personal leave will not be payable to employees in mandatory quarantine as a result of recreational travel overseas except if the employee provides a medical certificate during this period.
Forced Self-Isolation of Employees
In the event that an employee suspects a possible COVID-19 infection (e.g. attends a GP for testing), the employer will have no choice in such circumstances other than to require the employee to self-isolate. Where the employer requires an employee to self-isolate on the basis that to continue allowing them to attend the workplace presents an unacceptable risk to others, the employer will not be obliged to pay the employee their usual remuneration benefits. Self-isolation must continue until cleared by a medical professional.
In such circumstances, however, employers should consult with employees, on an individual and needs basis, to reduce the financial impacts of any forced self-isolation period. This will include consultation with employees as to the use of their paid personal leave, paid annual or long service leave entitlements (if available) or taking unpaid leave.
Modifications to Work Arrangements
If employers are experiencing significant financial hardship as a result of a downturn in business, in order to safeguard the business and the ongoing employment of its employees, employers may
choose to consult with employees about temporary alterations to working conditions, which may include:
· the short-term elimination of casual roles;
· a reduction in working hours to manage economic imperatives and overcome quiet trading periods; or
· temporary closure or stand down of employees.
It should be noted that, in the event an employer opts to make employees’ roles redundant as a result of a downturn in business, redundancies should be made in accordance with requirements under the National Employment Standards and any relevant modern award or enterprise agreement provisions.
With respect to stand down or work stoppages, the Fair Work Act 2009 (Cth) prescribes that an employer may stand down employees where they cannot be usefully employed/engaged for a stoppage of work for any cause which the employer cannot reasonably be held responsible. It should be noted that it is untested at law as to whether unsustainable downturn of business and productivity due to the COVID-19 pandemic qualifies as a ‘stoppage of work’ for the purposes of the Act, exempting an employer from its obligation to pay its employees – however, it is at least arguable. We note, however, the stand down provisions in the Act are not intended for indefinite periods of business closure, or a circumstance where the business cannot generally meet its financial obligations as and when they fall due.
In all circumstances where a stand down is being implemented, employers should discuss with affected employees, among other things, the nature of any workplace changes, the likely effect on employees and possible measures to avoid or reduce the adverse effects of the changes. In addition, employers should invite employees to give their views on the proposed workplace changes so that appropriate outcomes can be reached.
Working from Home Arrangements
Where possible, employers should actively encourage their employees to work from home given the work health and safety laws that apply. In such circumstances, however, some guiding principles ought to be followed, such as:
· ensuring a safe work environment (e.g. use of a supportive chair, free of trip and spill hazards etc);
· ensuring a quiet work environment (e.g. insulating against noise from pets or other residents);
· ensuring a reliable internet connection;
· instituting a regular contact plan with colleagues and management;
· adherence to normal hours of work;
· separation from distractions as best as possible (e.g. putting in place other measures to care and cater for children whilst working from home); and
· remaining collegiate (e.g. reaching out to colleagues on a regular basis to maintain a degree of workplace normalcy.
In the event of school closures, whereby employees are unable to attend for work due to the care of a child, such absence will be treated as unpaid leave except where the child is unwell (e.g. evidenced with a medical certificate). Employers may permit the use of accrued annual leave and long service leave entitlements during any period of school closures. Again, this should be decided after
consultation with the affected employee(s). If the employee is able to work from home, the employee should be allowed to do so.
Way Forward for Employers
No doubt, the fear and alarm from the COVID-19 pandemic is causing a significant deleterious impact on employers which, in turn, is creating further fear and alarm for employees with respect to their immediate job security. Our experience is that employers are genuinely trying to take care of their employees whilst remaining sustainable and operational over the forecast next 6 months.
Ultimately, during this COVID-19 pandemic, an employer’s policy should be of collaboration and consultation with affected employees. Where such a policy fails to bear fruit, we recommend legal advice be sought as to the alternative options available.
This alert is not intended to constitute, and should not be treated as, legal advice.