Coronavirus (COVID-19) – Frequently Asked Questions About Employment

Our Senior Associate Lawyer Jessica Hill has put together the below FAQ, covering important employment issues surrounding COVID-19 such as: requiring employees to work from home, standing down employees, leave entitlements, redundancies and varying working hours and pay. The COVID-19 situation is evolving at a rapid rate so please take this as general information only. Speaking to a lawyer before taking action on any of the issues discussed will ensure you are getting personalised and up to date advice. Jessica is experienced in employment law and would be happy to help you should you require assistance.

  • Can an employer require employees to work from home?

    In general, employees are required to comply with lawful and reasonable directions from their employer.

    A direction to work from home is likely to be lawful and reasonable, especially if the purpose of the direction is to comply with the employer’s obligations under work health and safety legislation. Employers who want to direct employees to work from home should review their obligations under any applicable:

    • enterprise agreement;
    • award;
    • employment contract; or
    • workplace policy.

    When considering work from home arrangements, employers should consider the nature of the work involved and the suitability of the employee’s home. Workplace health and safety laws still apply when an employee is working from home.

  • Can an employer stand down employees without pay?

    If the Jobkeeper scheme applies

    On 9 April 2020, the Fair Work Act was amended to support the implementation and operation of the ‘JobKeeper wage subsidy scheme’ in Australian workplaces. The new provisions apply to employers who have qualified for the JobKeeper scheme and their eligible employees.

    The new provisions enable a qualifying employer to direct an employee to work fewer hours or days (including no hours).

    These directions are called ‘JobKeeper enabling stand downs directions’. Employers can only give employees JobKeeper enabling stand down directions if the employee can’t be usefully employed for their normal days or hours because of changes to business attributable to the coronavirus pandemic, or an enforceable government direction.

    A JobKeeper enabling stand down direction must be in writing and must be reasonable. Employers also need to notify their employees and consult their employees at least 3 days before issuing the direction and keep a written record of the consultation.

    If the Jobkeeper scheme does not apply

    Section 524(c) of the Fair Work Act allows an employee to stand down employees “during a period in which the employee cannot be usefully employed” because of “a stoppage of work for any cause for which the employer cannot reasonably be held responsible”.

    Employers may be able to stand their employees down without pay during the coronavirus outbreak for a number of different reasons. These can include where:

    • the business has closed because of an enforceable government direction relating to non-essential services (which means there is no work at all for employees to do even from another location);
    • a large proportion of the workforce is in self-quarantine meaning the remaining employees can’t be usefully employed; or
    • there’s a stoppage of work due to lack of supply for which the employer can’t be held responsible.

    Employers should exercise the option to stand down cautiously, because if they stand down their employees unlawfully, their employees may be able to recover unpaid wages. An employer must show that all steps were taken to find useful employment. An employer is not required to employ those affected in occupations significantly different to their contracted position or to change the whole system of work and put obsolete plant into use to maintain the continuity of employment.

    Enterprise agreements and employment contracts can have different or extra rules about when an employer can stand down an employee without pay, for example, a requirement to notify or consult.

    Employees that are stood down remain employed during the period of the stand down. Any employees who are stood down will continue to accrue annual leave, long service leave and personal leave entitlements during the stand down.

  • If employees have been stood down, can they access paid leave?

    Where the employee is stood down, and then requests annual leave or long service leave, the paid leave can be taken if the employer authorises it.

    There may be reasons (cash flow, etc) for an employer to refuse requests for using paid annual leave and long service leave, but grounds to refuse other leave (such as personal leave or compassionate leave where evidence is provided) is less certain and it will be difficult to justify not authorising the leave.

    While employers do not have to authorise taking of paid leave after a stand down is brought into effect, in current circumstances it is good practice to allow employees to take accrued paid leave if they request to do so and it is commercially viable for the business to allow it.

  • Can employees be dismissed or made redundant due to COVID-19?

    Redundancy occurs when the employer no longer requires the employee’s job to be done by the employee or anybody else. This can occur due to a downturn in business, a workplace restructure or a closedown of the business.

    The focus is on the ‘job’ done. The job is the collection of duties assigned to the employee. An employer may redistribute an employee’s duties to other employees so that the duties remain, but the ‘job’ does not – that would be redundancy.

    If other options have been exhausted, or if they aren’t feasible, some employers may need to make their employees’ positions redundant in response to a business downturn caused by the coronavirus outbreak.

    Where this happens, employers must make sure they comply with any requirement to notify and consult about the redundancies under an applicable award, enterprise agreement, employment contract or workplace policy. Consultation requirements include:

    • notifying the employees who may be affected by the proposed changes;
    • providing the employees with information about these changes and their expected effects;
    • discussing steps taken to avoid and minimise negative effects on the employees; and
    • considering employees ideas or suggestions about the changes.

    They also need to provide those employees with their correct entitlements, which may include notice, redundancy pay and payment of any accrued leave entitlements. If an employer is a small business employer as defined by the Fair Work Act, they will not be required to pay redundancy pay.

  • Can an employer vary employees working hours or pay?

    If the Jobkeeper scheme applies

    On 9 April 2020, the Fair Work Act was amended to support the implementation and operation of the ‘JobKeeper wage subsidy scheme’ in Australian workplaces. The new provisions apply to employers who have qualified for the JobKeeper scheme and their eligible employees.

    The new provisions enable a qualifying employer to direct an employee to change their duties and work location. This includes working from home or from a different location. These directions are also referred to as ‘JobKeeper enabling directions’.

    Employers need to make sure:

    • the direction is reasonable;
    • the modified duties are within the employee’s skill and competency;
    • the duties are reasonably within scope of the business’s operations; and
    • any new location is within a reasonable travelling distance.

    The direction must be in writing. Employers must notify their employees and consult with them (or their representatives) at least 3 days before issuing the direction (unless the employee agrees to a shorter timeframe). They also need to keep a written record of the consultation.

    An employee’s hourly base pay rate cannot be reduced as a result of a JobKeeper enabling direction.

    If the Jobkeeper scheme does not apply

    For employers or employees not eligible under the Jobkeeper scheme, employers should review their employment agreements, enterprise agreements or modern awards. Reducing a permanent employee’s ordinary hours usually requires the employee’s agreement. When changing from full-time or part-time to casual the usual rules for ending employment apply, including:

    • giving or paying the employee the required notice; and
    • paying out leave and any other entitlements owed.

    An employer may be able to change an employee’s full-time employment to part-time or casual employment without agreement from the employee. Important factors to consider are:

    • Does the employment contract, registered agreement or award let the employer change the employee’s work hours without the employee agreeing?
    • Does the change make a new employment contract or change an existing contract?
    • What entitlements, such as annual leave or redundancy, need to be paid out?
    • How much notice does the employer need to give the employee?

    An employer can’t change or end an employee’s employment:

    • for a discriminatory reason
    • because the employee has exercised a workplace right
    • for another reason protected by law.

  • Can an employer require employees to take paid leave?

    If the Jobkeeper scheme applies

    On 9 April 2020, the Fair Work Act was amended to support the implementation and operation of the ‘JobKeeper wage subsidy scheme’ in Australian workplaces. The new provisions apply to employers who have qualified for the JobKeeper scheme and their eligible employees. The new provisions enable:

    • a qualifying employer to request that an employee take paid annual leave (if they keep a balance of at least 2 weeks); and
    • a qualifying employer and an employee to agree to the employee taking annual leave at half their usual pay rate.

    Employees on annual leave continue to accrue leave and their service continues for the purposes of redundancy and pay in lieu of notice.

    An employee can’t unreasonably refuse a request from their employer to take leave.

    If the Jobkeeper scheme does not apply

    If an employer or employee are not eligible under the Jobkeeper scheme, existing provisions will apply. Generally, the taking of leave should be mutually agreed between the employer and employee. In some circumstances, employers can require employees to take paid annual leave.

    Whether an employer can direct an employee to take annual leave in circumstances relating to coronavirus usually depends on what the relevant award or enterprise agreement says.

    For an employer to direct an employee to take annual leave, any award or agreement that applies must include a term allowing employees to be required to take annual leave in particular circumstances, and the requirement must be reasonable.

    Some awards and agreements allow employers to make these directions in a different range of circumstances.

    If there is no award or agreement that applies to the employee, under the Fair Work Act the employer can direct them to take annual leave if the direction is reasonable, which includes circumstances where the employer is shutting down its business because of the impact of the coronavirus.

    Additionally, state-based long service leave legislation may prevent an employer from requiring an employee take long service leave or may require advance notice of directions to take leave.

  • If an employee has school aged children at home, are they entitled to take carer’s leave?

    Employees who cannot come to work because they need to care for a child whose school or childcare centre 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 where the employee needs to look after a family member or a member of their household who requires care or support because of a personal illness or unexpected emergency affecting the member. Whether particular circumstances amount to an employee needing to provide care or support due to an unexpected emergency will depend on the particular facts. A school or childcare centre closing on short notice and for a short period due to concerns about coronavirus (for example, because someone at the school has tested positive) is an unexpected emergency for this purpose.

    Casual employees are entitled to 2 days of unpaid carer’s leave per occasion. Full-time and part-time employees are also entitled to take 2 days of unpaid carer’s leave per occasion if they have no paid sick or carer’s leave left.

    An employee must give their employer reasonable evidence of the unexpected emergency if their employer asks for it. This will also apply to situations relating to coronavirus.

    Other arrangements that may be available include:

    • working from home 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); or

    taking any other paid or unpaid leave by agreement between the employee and the employer.

  • An employee is required to self-isolate. What are the employer’s responsibilities?

    Non-award employees or employees covered by unvaried awards

    If an employee is required to self-isolate due to a government directive and is unable to perform their usual duties, their employer is not obliged to pay that employee. However, employers may consider allowing employees to use leave entitlements in this situation.

    If an employee is able to perform their duties from home and is not unwell, employers can direct the employee to work from home. If the employee can only complete some of their duties from home, the employer may direct this and may consider pro-rata payment for work if an employee cannot complete all their duties. This would need to be agreed with the employee and recorded in writing.

    Where an employee is in self-isolation because they are unwell, or are caring for a dependent who is unwell, the usual paid sick leave entitlements will apply, or they may choose to use their paid annual leave entitlements with the employer’s consent.

    Government support is available for any individuals who cannot work and who self-isolate in accordance with public health guidance, are ill with COVID-19 or need to care for a dependent in either of those circumstances.

    Employees covered by relevant varied awards

    On 8 April 2020, the Fair Work Commission (the Commission) made determinations varying 99 awards. A list of the varied awards is available at the following website:

    Employees who are employed under one of the affected awards can access up to 2 weeks’ unpaid pandemic leave (or more by agreement with their employer) if they’re prevented from working:

    • as a result of being required to self-isolate by government or medical authorities, or acting on the advice of a medical practitioner; or
    • by measures taken by government or medical authorities in response to the pandemic (for example, an enforceable government direction restricting non-essential businesses).

    The leave is available in full immediately to full-time, part-time and casual employees – they don’t have to accrue it.

    Employees don’t have to use all their paid leave before accessing unpaid pandemic leave.

    The leave needs to start before 30 June 2020 but can finish after that date.

  • Who can I contact if I require assistance?

Disclaimer: The information contained herein is of a general nature only and is not intended to be relied upon nor is it a substitute for appropriate professional advice. Whilst all care has been taken in the preparation of the material, it is not guaranteed to be accurate. Individual circumstances are different and as such, require specific examination. Asparq cannot accept liability for any loss or damage of any kind arising out of the use of or reliance upon all or any part of this material. Additional information may be made available upon request.

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