With the current coronavirus pandemic affecting all employers in one way or another, it is important for employers to ensure that they continue to abide by workplace laws to avoid legal liability on top of any business losses they are already facing.
We have prepared a guide which may help you with some common employment questions which have arisen during this crisis.
Health and Safety in the Workplace
Employers owe an overarching obligation to ensure, so far as is reasonably practicable, the health and safety of their employees. With respect to the coronavirus, employers ought to remain informed on all current developments regarding the virus in order to take reasonably practicable action as and when it is needed in order to eliminate or minimise identified risks in the workplace caused by the coronavirus.
These measures will differ from role to role and workplace to workplace, depending on a range of factors such as the level of human interaction required with the role, the required level of proximity of the employee to other staff or the public, the location of the employment, whether any equipment is used by the employee and if so whether this equipment is communal or solely the equipment of the employee etc.
For more specific information about managing the risk of contracting coronavirus in the workplace, a useful resource for employers is the Safe Work Australia website, which has a dedicated section on the management of the risk of contracting coronavirus in the workplace
(https://www.safeworkaustralia.gov.au/doc/coronavirus-covid-19-advice-employers#Managing).
Can I direct employees to work from home?
Working from home arrangements are generally made in agreement between the employer and the employee. However, an employer may direct an employee to stay away from their usual workplace by way of a reasonable and lawful direction. This may be because the employee is sick and poses a risk to others in the workplace, but could also be as a result of any government mandate requiring or recommending employees remain at home if possible.
However, just because employees are working from home, does not absolve the employer from the responsibility of providing a safe and healthy workplace. Employers are encouraged to ensure that employees have a safe space to work at home. They can send ‘working from home guidelines’ to employees to ensure employees are aware of their own responsibilities regarding their working from home setup. Employers may also require employees to send a photograph of their working from home setup to ensure that it is safe. It may be reasonable for an employer who requires employees to work from home to pay for equipment to allow the employee to work from home, such as an ergonomic chair, printer, scanner or monitor, if these allow the employee to perform the inherent requirements of their role and for the business to continue to operate smoothly, or to allow workers to take equipment home from work in order to do so.
What if my employee or a member of their family has coronavirus?
If an employee is sick with coronavirus, they must not attend work. Employers can direct sick employees to not attend work. Employers ought to act reasonably and act based on factual information in such circumstances. The employee should then stay at home in isolation for the government-specified isolation period that is applicable at the relevant time and should only return to work when they are also fit to do so, preferably with a medical clearance to return.
Employees who cannot come to work due to having coronavirus can take paid sick leave while absent from the workplace. If they run out of paid sick leave, they may take unpaid sick leave with the agreement of their employer.
An employee needing to take care of a member of their immediate family with coronavirus is entitled to take paid carer’s leave. If they run out, they may take unpaid carer’s leave by agreement.
For casual employees, the Fair Work Act entitles casual employees 2 days of unpaid carer’s leave per each occasion requiring such leave. Casual employees generally are not entitled to paid sick leave as they are paid for the hours they work.
Employers also ought to be mindful of any obligations that they may have towards their employees pursuant to any applicable enterprise bargaining agreement, award, contract of employment and/or workplace policies, which may provide additional employee benefits.
Of crucial importance, employers must not dismiss an employee from employment as a result of the employee being temporarily absent from work due to sickness from coronavirus or as a result of them taking time off to care for someone who has coronavirus. This exposes the employer to a claim for a breach of the General Protections provisions of the Fair Work Act.
Can I change my employee’s roster or hours of work?
The short answer is yes. This ought to be done in consultation with the employee. Employers ought to provide the employee with information regarding the change, invite the employee to give their views on the impact of any change on them and employers ought to consider the employees’ views about the impact of the change.
Employers also ought to consult any applicable enterprise bargaining agreement, award, contract of employment and/or policies which may provide greater protections to the particular employee.
Can I stand an employee down without pay?
Under to the Fair Work Act, an employee can only be stood down without pay if they cannot be usefully employed due to a stoppage of work for any cause which the employer cannot reasonably be held to be responsible for. This may include a government-forced shutdown of the business, for example. However, in circumstances where conditions lead to a downturn in business, but the business can continue operating, there is no entitlement for an employer to stand an employee down and employers must follow the rules in relation to reducing employees’ hours or terminating full-time contracts and offering new part-time contracts, for example. An employer must also not stand down an employee because the employee has the coronavirus.
If an employer stands down an employee unlawfully, then the employee may be able to recover unpaid wages from the employer.
While an employee is stood down, the employer may still choose to pay them, but is not obliged to do so. Employees also accrue leave entitlements as normal while they are stood down. Casual employees can be stood down without pay.
An employer may ask employees to take annual or long service leave in an effort to reduce costs as a measure to avoid job losses. If this occurs, it is up to the employee to agree to take the leave or not. However, employers cannot require an employee to take sick leave or carer’s leave.
Employers who take the step of terminating an employee’s employment due to a downturn in business, may be required to make a redundancy payment to the employee. However, employers ought to seek legal advice before doing so as employers may open themselves to legal liability if the redundancy is not genuine, amounts to an unfair dismissal by reason of being harsh, unjust or unreasonable, or if there is evidence that the employee was terminated based on their exercise of a protected workplace right.
If you have any questions regarding this guide, please do not hesitate to contact us to see how we can help.
Paul Horvath – Principal – paul@phsolicitor.com.au mob 0411 049 590
Ned Puddy – Lawyer – ned@phsolicitor.com.au mob 0425784037
Office – admin@phsolicitor.com.au tel (03) 9642 0435
Nothing in this article should be relied on as legal advice. The contents of this article should be regarded as general information only, and for specific legal matters, independent advice should always be sought
