Australians are expecting the coronavirus pandemic to weigh heavily on businesses for many months to come. Business owners and managers will have to accept and adapt to a new evolving workplace environment if they are to survive. What rights and responsibilities does the law impose for employers and employees in these circumstances?
If you wish to vary your employee’s terms of employment or other work rights and require further advice or the preparation of a letter to your employees, please contact us for further information.
Can the employer remain in operation but close its business premises?
Under occupational health and safety legislation, an employer must, so far as is reasonably practicable, provide and maintain a working environment that is safe for employees. The duty extends to employees engaged as contractors and their employees and sub-contractors. All employers must, on an ongoing basis, consider whether the coronavirus will render their workplaces unsafe and, if so, whether the business premises should be closed or whether other changes are required (e.g. reducing staff density). If an employer directs or allows staff to work from home, the employer must ensure the home is suitable for work to be performed and, if necessary, modify the nature of work expected to be performed to ensure it is suitable for the employee’s home.
Under some modern awards or employment agreements employers may have the power to require an employee to take annual leave during periods in which work cannot reasonably be performed.
What happens if an employee has to care for an ill relative or children whose school has been closed?
The Fair Work Act 2009 (“FWA”) largely regulates this issue.
The FWA prevents an employer from unreasonably refusing flexible working arrangements that are requested by an employee where the employee is the parent, or has responsibility for the care, of a child who is of school age or younger, a carer (a defined term), has a disability, is 55 or older or is affected by domestic violence. The employee’s request must be in writing and, if refused, the employer must give reasons in writing.
For each year of service with the employer, an employee (excluding casual employees) is entitled to 10 days of paid medical leave (called personal/carer’s leave under the legislation). The entitlement accrues progressively during the year and accumulates from year to year. Such leave may be taken if the employee is ill or injured or is required to provide care or support to a member of the employee’s immediate family or household (due to illness, injury or an unexpected emergency). Notice must be given. The employer is entitled to request evidence that would satisfy a reasonable person that the leave is warranted.
If personal/carer’s leave entitlements are exhausted, an employee may take a further two days unpaid personal/carer’s leave to provide care or support to a member of the employee’s immediate family for the above reasons.
Are employees in self-isolation entitled to be paid?
Recently, employees have been in self-isolation due to government directions, government recommendations or employer requirements. In these circumstances, an employee is entitled to be paid if the self isolation is in response to the employer’s direction and the employee is otherwise willing and ready to work. Arguably, if the employee refuses a reasonable direction to work from home while in isolation, pay may be withheld. Where the self isolation is at the direction or recommendation of the government, the employee is not entitled to pay unless the absence is treated as a period of annual leave,personal/carers’ leave or compassionate leave.
Can staff be stood down?
The FWA permits an employer to stand down employees without pay “during a period in which the employee cannot usefully be employed because of … a stoppage of work for any cause for which the employer cannot reasonably be held responsible.” Before an employer elects to stand down an employee, the employer must ask (a) whether the employee cannot usefully be employed and (b) whether the employer cannot reasonably be held responsible for the stoppage. Standing down employees due to a business slow-down caused by the coronavirus pandemic is unlikely to be allowed by the FWA. In such a case the business will have to consider terminating employment or initiating a stand down with the employees’ agreement. A stoppage due to a government order closing the workplace or inability to source necessary materials is likely to be allowed by the FWA.
Long service leave entitlements may, in theory, operate as a paid “stand down”. Employees currently on, or about to commence, long service leave may consider themselves relatively fortunate in the coming months. While any travel plans are likely to have been thwarted, they will remain entitled to be paid during the period of their long service leave.
Termination of Employment
Sadly, this pandemic will result in widespread terminations of employment. These terminations are likely to attract the operation of the redundancy provisions of the FWA, the relevant employment contract, modern awards or other applicable instruments.
Businesses that have sought to engage staff as contractors in the expectation that doing so would avoid the impact of the FWA and other employment law legislation should tread carefully. Termination of such staff may be risky. An individual that has been directly engaged as a contractor by a business (i.e.without an interposed corporate entity) and who has become closely integrated with the business and under its direction may in fact be classified as an employee by the courts or employment tribunals. Any perceived “contractor” who successfully argues that he or she was, in fact, an employee will in all probability be able to claim any one or more of pay in lieu of notice, redundancy pay, accrued leave entitlements, superannuation and/or other entitlements or benefits generally reserved for employees.
If a business continues to operate from its premises can the employer screen staff?
In the present environment, OH&S obligations permit (and likely require) employers to direct employees to disclose recent travel or if an employee comes into close contact with any persons that have tested positive to, or is suspected of having, coronavirus. Employers are likely to be duty bound to implement social distancing policies and ensure staff are able to minimise the risk of contaminating other staff (e.g. by having access to regular hand washing facilities, etc). In addition an employer is likely to be entitled to require staff toundergo checks for coronavirus symptoms, particularly where the staff are members of, or in contact with members of, high risk groups. Thermal scanners like those seen at airports and other public places may be used, provided they do not operate in private areas such as toilets or washrooms and do not record private conversations (failing which their operation is likely to contravene the Surveillance Devices Act 1999 (Vic) and any equivalent legislation in other states and territories).