Employment law responses to COVID-19

Coronavirus has had a major impact on employers across Australia due to the Public Health Orders that have shut down some business’ and severely restricted opening hours and numbers of those accessing goods and services. The attempt to “flatten the curve” has flattened some business operations.

In a heroic effort to maintain employment and stop unemployment reaching 15 per cent or more, the National Cabinet has moved on a range of fronts to assist employers and employees.

As a consequence of these restrictions, many businesses have been forced to significantly adjust their operations, or in some cases cease trading altogether, leaving them with the task of navigating Australia’s complex employment laws as they look for solutions to continue operations, but also retain their employees.

This article looks at how Australia’s employment laws have responded to the crisis, and the changes implemented that provide greater levels of flexibility to employers and employees.

JobKeeper payment subsidy

The big lifesaver was the JobKeeper subsidy. Employers qualified where they expected to experience a 30 per cent reduction in turnover (or 50 per cent for larger business, and 15 per cent for registered charities) compared to a comparable period in the previous year. It is a one-off test at the moment, although there may be a change given the better than expected economic outcome.

Qualifying employers will be able to claim a flat-rate payment of $1,500 per fortnight for every eligible employee on the books from 1 March 2020 until 27 September 2020.

Eligible employees include full-time & part-time employees, and casual employees who have been employed on a regular and systematic basis for greater than 12 months.

Amendments to the Fair Work Act

A significant change in Australia’s employment laws are the amendments to the Fair Work Act allied to the government’s JobKeeper scheme. As part of the changes, employers who qualify for the Government’s JobKeeper subsidy will be able to give employees “JobKeeper-enabling directions”. JobKeeper enabling directions allow employers to:

  • direct employees reduce their days/hours of work or not to attend work at all;
  • alter employees’ usual duties or location of work;
  • alter employees’ usual work days; or
  • direct employees to take a period of annual leave, which request an employee must not unreasonably refuse.

The Fair Work Commission can resolve disputes about these directions, and has done so where hours have been cut or there has been unfairness between employees as to loss of hours.

Amendments to modern awards

Employers and employees have been provided greater flexibility to vary working arrangements and deal with the challenges arising in these times, the Fair Work Commission has implemented a number of temporary measures in many modern awards, of its own volition.

Of greatest significance is the Commission’s variation to nearly one hundred modern awards to include access to two weeks unpaid ‘pandemic leave’ where a doctor or public authority advises an employee to isolate, and the secondly the ability for employees to take double the amount of annual leave at half pay, thus lengthening the time employees can have away from the business while receiving some income.

The Commission has also made amendments to the Clerks – Private Sector Award to provide more flexibility for remote working arrangements, directions around the taking of annual leave and reducing hours.

Remote working: work health and safety & protecting confidential information

The various government directions to work at home if at all possible has led the safety authorities to focus on safety of working remotely. Importantly, an employer’s obligations to employees under work health and safety laws remain largely unchanged. That is, an employer still has an overall duty to protect the health and safety of its employees, even when working from home.

Steps to ensure the safety of employees at home may include:

  • providing guidance on safe home office environments, ergonomics and how to keep physically active;
  • asking employees to complete a self-assessment checklist; and
  • talking to employees regularly to ensure their mental health is also being protected.

Returning to work

Creating a safe work environment is a legal requirement for employers. Employees and other workers also need to take care of their own and others’ safety. The health and safety of everyone in the workplace should be the first priority when managing the return to the workplace. Employees should not go to work if they have coronavirus symptoms and should notify their employer as soon as possible (see above unpaid pandemic leave).

If an employee comes to work and has symptoms of coronavirus, employers should:

  • direct the employee not to work, or to work from home if the job can be done safely from home and the employee is well enough to work;
  • ask the employee to get urgent medical advice as recommended by the Department of Health.

There are limited circumstances in which employers can require their employees to be tested for coronavirus before returning to work.

Employees who completed a required quarantine period (for example, after travelling or because of close contact with a confirmed case) but didn’t develop symptoms, shouldn’t be asked to get tested for coronavirus before returning to the workplace. It can be a form of discrimination if this occurs, or if they are shunned by those in the workplace.

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