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COVID-19 employment Issues – a ready reckoner for Australian workers

20th March, 2020

Anthony Forsyth, RMIT University and Labour Law Down Under Blog

There is so much uncertainty in the community at present, as we adjust to the impact of stand-downs and changed work arrangements due to the coronavirus pandemic.

I’ve written this ready reckoner to try and assist the many workers who are unsure where they stand legally right now. Its contents are mostly directed to full-time, part-time or fixed-term employees. Casuals are in a much more vulnerable position as most of the protections in the rules explained below don’t apply to them. Independent contractors have virtually no legal protections (including those working in the gig economy, although many of them may actually be employees at law).

For this reason, the ACTU and unions are campaigning for 2 weeks’ paid leave for all workers (permanent, casual or contractor) forced to self-isolate due to COVID-19. Some businesses have agreed to provide special paid sick leave arrangements for casuals in this situation.

Note also that the rules discussed are those applicable under the Fair Work Act. Always check your employment contract, award or enterprise agreement as they may include terms that are more generous than the legislation.

Self-isolation

Generally employers can direct employees to not attend the workplace, where it’s a lawful and reasonable direction – including to ensure compliance with workplace health and safety laws, and government guidance on dealing with the COVID-19 crisis.

What are my rights where I’ve been directed to self-isolate because:

  • I’ve been diagnosed with COVID-19 – you can use paid sick leave entitlements.[1] Alternatively, some businesses have created a new category of ‘special leave’ or ‘isolation leave’ that employees can use in this situation. If not, and if you have used all your sick leave, you’ll unfortunately be on unpaid leave (unless some other agreement can be reached with your employer). You won’t be able to return to work until you’re cleared by a medical practitioner.
  • I’ve been tested for COVID-19 and waiting for the results – you can work from home, or if you feel unwell, access paid sick leave (or any special leave an employer is providing). If working from home is not a practical option because of the nature of your work, you’ll need to reach agreement with your employer for paid leave.
  • I’ve been in contact with a confirmed COVID-19 case or I’ve returned from overseas (14-day isolation period) – as above.
  • I’m caring for a family or household member diagnosed with COVID-19 – you can use paid carer’s leave entitlements (or any applicable special leave). If you’ve used all your carer’s leave, you can take up to two days’ unpaid carer’s leave on each occasion it is needed to care for a family/household member who is ill (this is one of the few entitlements available to casuals).

I’ve been sacked while I’m on sick leave with COVID-19

An employer can’t dismiss you because of a temporary absence from work due to illness (less than 3 months, or a total of 3 months within a 12-month period). Look into bringing a general protections claim (see: https://www.fwc.gov.au/termination-employment/general-protections-dismissal).

Working from home

I want to work from home but my employer won’t let me

Your employer should agree to a request to work from home in the current circumstances, given the emphasis the government is placing on social distancing. If push comes to shove though, your employer can still insist that you attend work, if it’s a reasonable direction – e.g. as long as you aren’t being exposed to an imminent health and safety risk by attending. This may vary based on an employee’s age, medical condition or pregnancy.

A concern about using public transport to get to work may not be sufficient to avoid a direction to attend work, unless the government moves to close or limit the operation of transportation systems.

I’ve been directed to work from home – what obligations does my employer have?

Your employer’s obligation to provide a healthy and safe workplace continues to apply when you’re working from home. This means your home workstation should have been risk assessed by your employer. You should also have been provided with all the equipment you need to perform work as if you were at the workplace, as far as possible.

A bit further down the track, employers are going to have to consider adjusting normal performance expectations due to the disruption caused to most business operations by the COVID-19 crisis.

I need to work from home because my child’s school or child care centre has been closed

First, try to negotiate a work from home arrangement with your employer. Otherwise, paid carer’s leave and additional unpaid carer’s leave (discussed earlier) can also be used where an employee faces an unexpected emergency affecting a family member. This should cover the situation arising from school or child care closures, at least in the initial stages.

Reductions in work opportunities and income

Inevitably, businesses affected by government measures to contain COVID-19 are being adversely impacted including airlines, cinemas, cafés, restaurants and even offshore oil and gas production. Many businesses simply don’t have the same numbers of customers, or can’t maintain the same level of operations, and staffing requirements are therefore far lower than normal.

I’ve lost shifts – what are my rights?

If you’re a true casual employee, there is little you can do about no longer being rostered for some or all of your shifts. This illustrates the needs for special paid leave to get around 2.5 million casual employees through the current crisis.

For permanent employees, any reduction in usual work patterns will need to be put into effect in accordance with the applicable contract, award or enterprise agreement.

My employer is talking about stand-downs – how does that work?

Employers are able to stand employees down, without pay, during a period in which an employee can’t usefully be employed because of situations including ‘a stoppage of work for any cause for which the employer cannot reasonably be held responsible’. Qantas took this step yesterday, standing down 20,000 workers (two-thirds of its workforce).

The COVID-19 situation is likely to present many employers with the option of lawfully standing employees down. However, if you are presented with this situation, make sure that the above requirements are in fact satisfied. For example, is there other work that employees could usefully be asked to perform instead of being stood down? If the requirements aren’t met, a stand-down can be challenged in the Fair Work Commission (see: https://www.fwc.gov.au/industrial-action-benchbook/payments-relating-industrial-action/standing-down-employees).

The effect of a stand-down is that you remain employed, although you are not required to perform work and you are not paid during the period of the stand-down. However, you continue to accrue annual leave and personal leave entitlements while you are stood down. You could try to find alternative work with another business, but keep your employer informed about that and obtain their approval (restrictions might apply, for example if your contract has a restraint clause).

You can return to work once your employer informs you that the stand-down period has ended.

Layoffs/redundancies

We haven’t seen much of this yet, but it’s likely there will be forced redundancies as the crisis drags on.

Unfortunately, you can be dismissed where the employer needs to implement a ‘genuine redundancy’. This can be based on a range of factors such as a downturn in business or a restructure of positions necessitated by your employer’s response to COVID-19. The legal test is that (because of a change in the operational requirements of the enterprise) your employer no longer requires your job to be performed by anyone.

If that situation arises, there are some steps your employer must take to lawfully implement a redundancy dismissal:

  • consider any reasonable possibilities for redeployment (if there are none, the redundancy can proceed); and
  • comply with any obligation in an award or enterprise agreement to consult about the redundancy (this may require consultation with your or your union/other representative, although again once this occurs the redundancy can proceed).

If you think the above requirements haven’t been met, you can challenge this as an unfair dismissal in the Fair Work Commission (see: https://www.fwc.gov.au/termination-of-employment/unfair-dismissal).

If you are being made redundant, you are also entitled to:

  • notice (or pay in lieu of notice) of between 1 and 5 weeks; and
  • redundancy pay of between 4 and 16 weeks.

Both the above vary based on your length of service with your employer. More generous notice and redundancy pay entitlements may apply under enterprise agreements (especially union-negotiated agreements).

The Fair Work Act imposes additional information and consultation obligations on employers when effecting large-scale redundancies (15 or more employees).

I work in a high-demand industry and they’ve asked me to do a lot of extra hours to cope with increased workload

This is the situation currently facing many in the community, including health care workers, supermarket employees and those in vital supply chains (transport and distribution workers etc).

Full-time employees can only be required to work a maximum of 38 hours per week, plus ‘reasonable additional hours’ (which vary depending on the type of work, the industry, employee’s level of seniority, etc).

Check your award or enterprise agreement as it will likely have additional regulation of rostering arrangements and working hours.

A final note

Taking annual leave or long service might also be considered to address many of the difficult situations covered above – but these entitlements should generally only be utilised for their intended purpose. For example, if you are really concerned about attending work right now and are happy to use your annual leave – and will actually have a break from work (rather than working from home) – then do that.

Other resources:

[1] Sick leave forms part of the 10 days of personal leave that employees accrue each year. Personal leave may also be used as carer’s leave.

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