Recent updates – 25 March 2020
On 24 March 2020 the Fair Work Commission made a determination to vary the Hospitality Award. The new Schedule L applies from 24 March to 30 June 2020. The changes improve award flexibility during the outbreak of coronavirus for classifications and duties, hours of work for full-time and part-time employees and annual leave. https://www.fwc.gov.au/documents/awardsandorders/html/pr717757.htm
Enforceable government directions
Recent updates – 25 March 2020
Where the Commonwealth or a State or Territory Government or officer makes an order, determination or direction that is enforceable under the law (an enforceable government direction) and which prevents an employee from working, an employer is not required to pay the employee (unless the employee uses paid leave entitlements).
This could occur, for example, where an enforceable government direction closes down a particular work site (and there is no way for employees to work remotely), or where an enforceable government direction prevents a particular employee from working (e.g. because they are required to self-isolate). In these instances, the employer is not required to pay the employee (unless the employee uses paid leave entitlements).
The situation is changing rapidly, and most States and Territories have now put in place enforceable government directions to prohibit mass gatherings or events, and some are enforcing self-isolation requirements for travellers and other people exposed to coronavirus.
In line with recent government announcements, some enforceable government directions have already been, or will soon be, issued with respect to restaurants, gyms, pubs, clubs and other services deemed non-essential. For example, the Victorian Deputy Chief Health Officer has issued an enforceable government direction that certain non-essential services must shut down between 12pm on 23 March 2020 and 12am on 13 April 2020. The New South Wales Government has issued a similar enforceable government direction.
As these enforceable government directions have been issued, some affected businesses are likely to be able to stand down employees, if they cannot usefully be employed. See When can employees be stood down without pay?
When can employees be stood down without pay?
Employers and employees are encouraged to work together to find appropriate solutions that suit the needs of individual workplaces and staff. Employees who are stood down without pay remain employed for the period of the stand down.
Under the Fair Work Act, an employee can only be stood down without pay if they cannot be usefully employed because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible.
Whether the option of standing down employees is available in circumstances relating to coronavirus is very fact dependent and an employer should exercise the option cautiously. The employer must be able to demonstrate that:
- there is a stoppage of work
- the employees to be stood down cannot be usefully employed (which is not limited to the work an employee usually performs)
- the cause of the stoppage must also be one that the employer cannot reasonably be held responsible for.
If an employer unlawfully stands down employees without pay, the employees will likely be able to recover unpaid wages.
Employers cannot generally stand down employees simply because of a deterioration of business conditions or because an employee has coronavirus.
Some examples of when employers may be able to stand down employees include:
- if there was an enforceable government direction requiring the business to close (which means there is no work at all for the employees to do, even from another location)
- if a large proportion of the workforce was required to self-quarantine with the result that the remaining employees/workforce cannot usefully be employed
- if there was a stoppage of work due to lack of supply for which the employer could not be held responsible.
This is not an exhaustive list.
Pay during stand-down
During a stand-down period, an employee:
- doesn’t need to be paid
- accrues leave in the usual way.
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. Employers should consider whether their obligations are impacted by any applicable enterprise agreement, award, employees’ employment contracts or workplace policies.
Employers are not required to make payments to employees for the period of a stand-down but may choose to pay their employees. Employees accrue leave as normal.
An employee is not taken to be stood down during a period when the employee is taking paid or unpaid leave that is authorised by the employer or the employee is otherwise authorised to be absent.
The stand-down provisions in the Fair Work Act, enterprise agreements or contracts of employment are not usually relied on for casual employees. See What about casual employees and independent contractors?
Other options that an employer may consider instead of stand-down include:
- seeking employees’ agreement to take paid (or unpaid) leave for a period
- in limited circumstances, directing employees to take paid annual leave
- in limited circumstances, negotiating with employees to change regular rosters or hours of work
- terminating the employment of the employees, in which case the employer may have to provide redundancy pay. See What if an employer needs to let employees go?
The Fair Work Act includes requirements that employers have to meet before they can terminate an employee’s employment, such as providing notice of termination. An employee is also protected from being dismissed because of discrimination, a reason that is harsh, unjust or unreasonable or another protected right. Employers are prohibited from exerting undue influence or undue pressure on employees in relation to making certain agreements or arrangements.
Example: Non-essential services – no stand-down of employees
Teddy is a part-time food and beverage attendant in a Sydney restaurant. The New South Wales Government issued an enforceable government direction under the Public Health Act 2010 (NSW) that certain non-essential services must shut down because of coronavirus.
Teddy’s employer contacts him to let him know that the restaurant has closed its dining service immediately for the duration of the direction. The restaurant will continue offering its takeaway and delivery service. Teddy’s employer lets him know that instead of carrying out his usual waiting duties at the restaurant, he and the other waiting staff will be needed to help with receiving, packing and delivering orders.
This is not a stand-down because Teddy can still be usefully employed, so he’ll continue to be paid.
Example: Non-essential services – stand-down of employees
Gemma is a part-time employee at a cinema complex in Melbourne’s CBD. The cinema employs 10 permanent employees and 15 casual employees. The Victorian Deputy Chief Health Officer issued an enforceable government direction under the Public Health and Wellbeing Act 2008 (Vic) that certain non-essential services must shut down because of coronavirus.
Gemma’s manager calls her to explain that the cinema is closed for the duration of the Government’s direction and that cinema management will need to stand all employees down without pay, as they can’t be usefully employed.
Gemma and her colleagues are advised that permanent employees can take any accrued annual leave they have as an alternative to being stood down without pay. However, casual employees are not entitled to be paid while the business is closed.
What if an employee cannot attend work because their child’s school or childcare centre has closed due to coronavirus?
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. 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 can take unpaid carer’s leave 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 (if this is a practical option and consistent with any applicable award, enterprise agreement, employment contract or workplace policy) 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)
- taking any other paid or unpaid leave by agreement between the employee and the employer.
Example: Employee needs to care for a child during childcare centre closure
- Alastor has just received an email from his daughter’s childcare centre letting him know that the centre will be closed from tomorrow for 48 hours because a child at the centre has tested positive to coronavirus. Alastor immediately contacts his employer to let them know he’ll need to stay at home during the closure to care for his daughter.
- They discuss whether working from home is an option but decide that given Alastor needs to actively care for his daughter he is unable to work at his normal capacity.
- Alastor’s employer lets him know that he can take paid carer’s leave because the closure of the childcare centre on short notice is an unexpected emergency. Alastor forwards the email from the child care centre to his employer as evidence.
What if an employee wants to stay home as a precaution?
Employees who want to stay at home as a precaution (but who are not directed to by either their employer or an enforceable government direction) need to come to an arrangement with their employer that best suits their workplace. This may include requesting to work from home (if this is a practical option) or taking some form of paid or unpaid leave, such as annual leave or long service leave. Normal leave application processes in the workplace apply. If the employee doesn’t enter into an arrangement with their employer or use paid leave, they’re not entitled to payment in these circumstances. You can find information on self-quarantine requirements on the Australian Government Department of Health’s website.
Employees are encouraged to discuss their level of risk of contracting coronavirus with their doctor, workplace health and safety representative or the appropriate Commonwealth, State or Territory workplace health and safety body.
Employees who don’t work because they have a reasonable concern about an imminent risk to their health or safety are not taking industrial action. This is provided they’re not failing to comply with a direction to perform other appropriate and safe work.
Example: Employee chooses to self-isolate due to health concerns
Jeff wants to self-isolate as a precaution because he has a weakened immune system. He contacts his employer to discuss his concerns and asks to work from home for the next few weeks.
Jeff’s employer is already aware of his condition. They check their working from home policy and conduct a risk assessment to make sure Jeff’s home office will be safe for him to use. They then let Jeff know that they’re happy to let him work from home for the next 2 weeks.
Jeff and his employer agree that after 2 weeks, they’ll review the arrangement to make sure it’s working and to discuss whether it’s still necessary.
What if an employer wants their employees to stay home as a precaution?
Under workplace health and safety laws, employers must ensure the health and safety of their workers and others at the workplace as far as is reasonably practicable. Workers also have responsibilities under those laws.
If an employee is at risk of infection from coronavirus (for example, because they’ve recently travelled from overseas, or have been in close contact with someone who has the virus), employers should request that they work from home (if this is a practical option – see When can employees work from home?) or not work during the risk period.
Where an employer directs a full-time or part-time employee not to work due to workplace health and safety risks, but the employee is ready, willing and able to work, the employee is generally entitled to be paid while the direction applies. However, if an employee cannot work because they’re subject to an enforceable government direction requiring them to self-quarantine, the employee isn’t ordinarily entitled to be paid (unless they use leave entitlements).
Employers should consider whether their obligations are impacted by any applicable enterprise agreement, award, employees’ employment contracts or workplace policies, which may be more generous.
Under the Fair Work Act, an employee can only be stood down without pay if they cannot be usefully employed because of equipment break down, industrial action or a stoppage of work for which the employer cannot be held responsible. The most common scenarios are severe and inclement weather or natural disasters.
Standing down employees without pay is not generally available due to a deterioration of business conditions or because an employee has coronavirus. Enterprise agreements and employment contracts can have different or extra rules about when an employer can stand down an employee without pay. Employers are not required to make payments to employees for the period of a stand-down but may choose to pay their employees. (See When can employees be stood down without pay?)
Employers need to balance their legal obligations, including those relating to anti-discrimination.
- Casual employees
- Directing an employee to take annual leave
- Protection from discrimination at work
- Australian Government Department of Health – for the latest information on coronavirus, including requirements and conditions for isolation and quarantine periods and when testing should be sought
- Services Australia – for information and services to help you if you’re affected by coronavirus, including Centrelink payments and support.
What if an employer needs to let employees go?
Some employers may need to make employees’ positions redundant in response to a business downturn. If an employee’s job is made redundant, their employer may have to give them redundancy pay. The Fair Work Act has requirements that employers have to meet before they can terminate an employee’s employment, such as providing notice and payment for untaken annual leave.
Under the Fair Work Act, an employee is protected from being dismissed because of temporary absence due to illness or injury. The Fair Work Act also includes protections against being dismissed because of discrimination, a reason that is harsh, unjust or unreasonable or another protected right. These protections continue to operate in relation to employees impacted by coronavirus.
- Redundancy pay & entitlements
- Notice & final pay
- Final pay
- Protection from discrimination at work
- Unfair dismissal.
Can employees be directed not to travel?
Employers can direct employees not to undertake work-related travel if this is necessary to meet workplace health and safety obligations or is otherwise a lawful and reasonable direction.
Employers are unlikely to be able to direct an employee not to undertake private travel.