Last updated: 7 August 2020

Introduction

Since the first edition of our COVID-19 Response Briefing Note, the Australian and State/ Territory Governments much has changed with a dynamic and fluctuating response to the ongoing health and economic crises, with some States seeking to ease restrictions wherever possible with a view to getting Australian's back to work to flatten the unemployment curve whilst other States and areas facing the prospect of increased restrictions and uncertainty with hot spots and the State of Disaster being declared in Victoria.

This presents businesses with unique challenges and risks, and employers must be extra vigilant to ensure ongoing compliance with Work, Health and Safety (WHS) and employment laws

While the number of new COVID-19 cases and the risk of transmission has been decreasing in some States in Australia, allowing some States and Territories' industry and community sectors to reopen, the Australian Health Protection Principal Committee has emphasised the need for employers to remember their WHS duties owed to employees during the pandemic. The situation in Victoria, a stark reminder of the risks to life this terrible virus presents.

One of the critical challenges for organisations looking to reboot operations is differentiating those measures that are necessary and prescriptive from those that are being encouraged, recommended or even suggested out of an abundance of caution. A failure to comply with mandated requirements will be an offence under the relevant legislation but may also be a breach of WHS laws. A failure to comply with expert guidance and government recommendation will not necessarily be a breach of law but may be a failure to comply with an organisation's duty of care or primary duty under WHS laws. Different WHS, industrial and employment issues will result from whether an activity is mandated or otherwise being implemented as a business decision, including in relation to stand down rights, taking of leave, entitlements to pay etc.

Advice should be sought where you are unclear about the necessity of taking a measure, and you should maintain clear documentation of your reasoning and decision-making (and, if these are mandated requirements, the cause of the requirement).

Additionally, employers must continue to ensure compliance with employment laws when introducing temporary and permanent workforce changes.

In this section we look at:

  • Work health and safety;
  • employee entitlements; and
  • employment law issues and regulatory response..

The following is not advice but a list of issues for consideration in order to provide some guidance in this turbulent time.

On 5 May 2020, Saul Harben, Shae McCartney and Christy Miller held a virtual roundtable for clients with colleagues from London and Hong Kong at Freshfields Bruckhaus Deringer. Our panel of experts addressed workplace insights on the COVID-19 pandemic and offered best practice recommendations for what we are currently seeing in Australia and from a global perspective. The outbreak is moving quickly, and some perspectives here may soon be out of date. This webinar reflects our perspective as of 5 May 2020.


Work health and safety

Issue

  • Ensuring, so far as reasonably practicable, the health and safety of workers.
  • Managing and understanding operational impacts and balancing competing needs (for example it is not feasible to send everyone home when workers are required to provide critical services or ensure safety).

The perception of risk, reputation, culture and mental health impacts versus the evidence of genuine risk of infection.

Possible solutions

Management responsibilities

  • Continue to monitor the World Health Organisation (WHO) and Department of Health (DoH) websites for updates and guidelines.
  • Review your risk assessment on a regular basis: ensure that it accurately reflects what is known (or ought to reasonably be known) about the hazard and assessment of risk to workers as well as what is occurring in your particular State or Territory. New information is constantly becoming available which may impact the workplace, and also the effectiveness of control measures currently in place.
  • As a result of Health Directives, Public Orders and declarations of a State of Emergency in many States, minimum standards of duty of care and what is reasonably practicable has changed, therefore the available means, likelihood and consequence of risk have changed and must be reassessed.
  • As community measures are introduced, and as they are relaxed again taking into account each State and Territories progression through Australia's Roadmap to a COVIDSafe Australia as announced by the Government on 8 May 2020, new risks arise that must assessed as well as change in effectiveness of controls. That roadmap has since been reviewed and updated – see here. It is particularly important to take into account:
  • supply chain issues and whether impacts and critical shortages may affect safety;
  • emergency response and, in considering current staffing and who may be required in the workplace, whether sufficient staff and resources are available in the event of an emergency;
  • access to adequate and sufficient PPE;
  • fatigue and rostering issues;
  • vulnerable workers and specific impacts;
  • drug and alcohol testing;
  • monitoring, surveillance and review measures that are part of a safety governance system that may be put on the back burner as a result of crisis management; and
  • critical maintenance and testing that may be deprioritised, but have longer term safety consequences.
  • The Federal Government launched its COVIDSafe App on 26 April 2020. The app aims to slow the spread of COVID-19 by finding close contacts of COVID-19 cases using Bluetooth connections. The Business Council of Australia is encouraging workers to sign up for the COVIDSafe app, saying the app will help employers keep their staff, customers and suppliers safe and give people confidence to go back to work. However, please note that, in accordance with the Health Minister's determination under the Biosecurity Act 2015, individuals, including employees, cannot be forced to download the app. This would also prohibit employers from directing employees to download the app on employer owned devices.
  • The Western Australian Government has introduced mandatory coronavirus-specific hygiene training for the hospitality industry. Hospitality businesses will not be able to reopen unless they can show that every employee has successfully completed the first component of the Hospitality & Tourism COVID-19 Hygiene Course. Managers and supervisors will be required to complete the second component of the course. At least one "COVID-19 hygiene officer" that has completed the second component of the course must be on shift at all times. The course focuses on understanding COVID-19 and venue restrictions, reporting personal health issues, maintaining personal and workplace hygiene practices, reducing the risk of cross-contamination and using effective cleaning and sanitising practices.
  • On 18 May 2020, the Western Australia Government announced that businesses re-opening or broadening their operations, under partly relaxed restrictions, must complete a COVID Safety Plan for complying with social distancing, hygiene and training requirements.
  • The NSW Government has also published a COVID-19 Recovery Employer Toolkit, providing employers with a checklist of actions to help prepare and plan safely returning workers to the workplace in the current phase of the COVID-19 recovery.
  • On 18 May 2020, the NSW Government announced its "COVIDSafe Transport Plan", which involves: directing people to avoid using public transport at peak times; an "intense and ongoing" cleaning regime on the transport network; special "event-style" car parking arrangements in some areas; "pop-up cycleways" and better routes for pedestrians; and a "green dot" system to show people the safest places to sit or stand on trains, buses and ferries.
  • As pandemic restrictions ease in South Australia, SafeWork SA inspectors will be contacting South Australian employers by phone to provide targeted guidance on their WHS responsibilities around COVID-19. The aim of the calls is to educate businesses on maintaining safe systems of work, with a particular focus on psychological health of workers.
  • The Tasmanian Government has encouraged workplaces to implement COVID-19 safety plans to keep staff and customers safe, referring businesses to the Safe Workplaces Framework on its website. A public health order has also been issued requiring persons conducting a business or undertaking to implement social distancing measures, cleaning regimes and other strategies to manage the threat to public health posed by COVID-19.
  • Directions to employees to return to onsite work need to be managed sensitively. Employees might be concerned about the health of a vulnerable family member that they care for. The Disability Discrimination Act prohibits discrimination on the basis of someone's association with a person with a disability. Unreasonably requiring a person to return to work may subject employers to indirect discrimination claims. This does not mean that directions cannot be given to return employees to the workplace. However all directions need to be both lawful and reasonable. Specific advice should be taken in circumstances where concerns are raised.
  • SafeWork NSW has relaunched "Speak Up, Save Lives" initiative in a mobile app format, which allows workers to report unsafe work practices by confidentially sending photos directly to the regulator. Employers should ensure that they are complying with all workplace health and safety requirements relating to a return to work during the pandemic to avoid facing any penalties.
  • WorkSafe Victoria has released a checklist for the construction industry to use to manage the risk of exposure to COVID-19. The checklist reminds employers to implement a screening process to prevent COVID-19 infections spreading on construction sites, record the schedules and work locations of employees and contractors, maintain good hygiene and physical distancing measures, and minimise the need to share tools, plant and equipment.
  • Northern Territory WorkSafe has released a guidance for lifts, advising workplaces that require lift access to provide designated pathways for those exiting lifts, adjust lift programing to decrease the time that doors stay open, and assign specific lifts to certain floors. While the four square metres of space per person in indoor environments rule no longer applies in the Northern Territory, the guidance advises that people should still keep 1.5 metres away from others where possible.
  • Review controls and test whether they remain effective – as the risks may continue to change, employers should regularly check that their controls measures also remain current and effective. For example:
  • are meetings / events in the workplace being postponed?
  • are workers able to work from home to reduce risk to exposure (especially vulnerable people)?
  • is social distancing being enforced?
  • are cleaning services being increased?
  • is good personal hygiene being encouraged?
  • have you had instances of employees disobeying measures in place and if so why?
  • have you considered whether any of your current testing measures, for example drug and alcohol testing, may need be amended to deal with the increased risks of the virus?
  • what enforcement measures are in place to ensure ongoing compliance balancing the need for compliance with a complex, changing and highly challenging circumstances?
  • are workers trained in PPE?
  • is there enough PPE for all workers?
  • Given the serious consequences for breaching Government restrictions and health directions such as isolation orders, consider parity of disciplinary measures for non-compliance with any employer WHS measures or directives. An overview of State and Territory powers and penalties can be found here.
  • Consider the workforce within your organisation and which of your workers may be more impacted by COVID-19 from a WHS perspective.
  • Consider the specific areas of risk or worker vulnerability which may exist in your workplace or industry.
  • Review and where necessary revise the company Pandemic or Infectious Diseases Plan (which may draw on an existing business continuity or crisis management plan) that is consistent with the WHO and DoH guidelines as they develop. WorkSafe Victoria has developed a helpful guide for employers in "Preparing for a Pandemic".
  • Consult with workers and unions on risk assessments and control measures that should be implemented. Ensure effective communication of these control measures and provide clear directions and guidance to all workers and what is expected of them. Remind workers that other risk mitigation measures remain in place and should not be ignored or not complied with, despite the changes arising because of response to COVID-19 such as fatigue, minimum manning levels, skills and competency requirements.
  • Share the relevant information you have regarding COVID-19 and its possible impact on work health and safety with workers and give them a reasonable opportunity to express views, and take those views into account before making decisions on health and safety matters.
  • Consider if the organisation is required under law or industrial instrument to consult with unions and / or Health and Safety Representatives.
  • Avoid holding meetings with large numbers of workers in line with the social distancing measures and instead hold video or teleconferences.
  • Consider holding one-on-one or targeted small group discussions with vulnerable workers to ensure their needs, experiences and individual circumstances are heard and considered.
  • Support supervisors and remind them of the importance of not overreacting to situations in the workplace in order to prevent panic among the workforce, and provide them with access to any external support organisations that are available to them.
  • Develop succession contingencies for the organisation's leadership.
  • Cross-train workers to perform critical functions in the event of an unexpected absence or quarantine of another worker.
  • Plan for workers to be absent. This should be done in a business continuity plan or a crisis management plan and workers should be able to perform duties of other workers if need be.
  • Document your risk assessments, consultation efforts and decision-making processes with respect to risk management. You won't always get it right but if the decision-making process and risk assessment measures are documented an organisation will be in a much better place to defend any claims, disputes or even prosecutions.

Communications with workers

  • Effectively communicate with both workers who remain at the workplace and those that may be working from home.
  • Aim for face-to-face interaction online where possible via Skype, BlueJeans, Zoom, Microsoft Teams, etc.
  • Communicate the risk assessment with workers and consult with them on the appropriate control measures which can be implemented.
  • Encourage workers to communicate any questions or concerns they may have and any difficulties they face working from home or returning to the workplace. Provide structure for receiving WHS issues in a low risk way (ie. workers may not want to raise concerns in writing).
  • Consider what the paper trail looks like. WHS issues that are raised but not addressed often result in prosecution (eg. the Dreamworld email regarding previous incidents – see Coroner's report).
  • Continue to check in with workers and provide tasks to be completed.

Work arrangements

  • For anyone in Victoria, there are specific Government directions that should be adhered to by all businesses and employees. These can be viewed here.
  • If possible, allow for social distancing, continue to encourage workers to work flexibly to help flatten the curve and continue to monitor and distinguish between guidance versus mandated requirements.
  • When considering whether or not to return workers to the office, or if workers are coming into the office during this time, ensure spatial separation between desks and workstations (approximately 1.5 metres between workers to comply with social distancing protocols).
  • Encourage workers to self-report and self-isolate for the recommended 14 days if they display any symptoms or have come into contact with a confirmed case of COVID-19.
  • Notify workers that they must identify and comply with any isolation orders.
  • With the different approaches to the reopening of schools for certain age groups, (as well as school closures that may occur when cases of COVID-19 are identified for example in Victoria), employers should be mindful of workers with school-aged children or other caring responsibilities to allow them to balance work responsibilities and carer duties.
  • Keep up-to-date with the latest Government announcements regarding your type of business and carefully note any restrictions, and any proposed changes to those restrictions, which may impact on your organisation such as:

Travel / group interaction arrangements

Some options for practical safety tips

  • Ensure that workers are practising social distancing:
    • this requires workers to stay 1.5m apart to prevent person-to-person droplet transmission;
    • discouraging physical contact in the workplace
    • limiting social in-person gatherings; and
    • have hand sanitiser stations at appropriate places in the workplace.
  • Continue to encourage workers to work from home if possible and appropriate in the circumstances (and noting the different restrictions at play in the various States and Territories). Develop a staged return to the workplace, as the longer workers work from home, the more different risks come into effect such as ergonomic issues, mental health impacts, resourcing etc.
  • Onsite facilities such as gyms, cafes and common areas should remain closed until businesses can undertake a detailed risk assessment in regards to their ongoing operation.
  • If workers are working from home on a roster or alternate basis, take the opportunity to disinfect desks, tables, telephones, keyboards and other surfaces at the workplace. Obtain certification from cleaning companies (if engaged) of the work undertaken to clean the site.
  • Consider whether hygiene training is necessary.
  • Workplaces where a worker potentially has COVID-19 should be shut down and thoroughly cleaned before workers return. Obtain certification from cleaning companies (if engaged) of the work undertaken to clean the site. See the SafeWork Australia publication on confirmed case of COVID-19 at the workplace.

Sick workers and leave

  • Allow for workers to take paid or unpaid leave where possible.
  • Encourage workers who have mild respiratory symptoms (coughing, sneezing, shortness of breath) and / or a mild temperature to stay home (or work from home).
  • Educate workers on their leave entitlements and ability access personal leave balances if they are ill, self-isolating, concerned they have been exposed / will be exposed or are caring for an ill family member. Workers should be encouraged to self-report and should know that if they knowingly attend work in breach of a reasonable and lawful direction for their or others health and safety they may breach the work health and safety legislation which may have personal consequences for them.
  • By law, any workers who have returned from overseas and some "hot spots" within Australia are required to isolate in mandatory hotel quarantine for 14 days. If you have not already, ensure you alert your workers of this development.
  • Employers can request that workers provide medical certificates or statutory declarations as evidence of requiring sick leave. However, due to the increased strain on the healthcare system, it may be difficult to get an appointment, so consider what is reasonable in the circumstances.
  • Also consider whether a medical certificate is required before workers return to the workplace.

Vulnerable workers

  • Employers must also consider all workers in determining its risk mitigation strategies when responding to COVID-19.
  • The Commonwealth Department of Health has identified people who are the most at risk of serious infection. These are:
    • people with compromised immune systems (such as people who have cancer);
    • people over the age of 60, and Aboriginal and Torres Strait Island people over the age of 50;
    • Aboriginal and Torres Strait Islander peoples (as they have higher rates of chronic illness);
    • people with chronic medical conditions; and
    • people in group residential settings.
  • Further, the World Health Organization (WHO) has identified that people with pre-existing medical conditions such as high blood pressure, heart disease, lung disease, cancer or diabetes may be at increased risk.
  • If the employer has workers in the categories set out above, it will need to consider their circumstances in determining the appropriate response at the workplace (including in any return to work planning. Whatever procedures the employer puts in place, particularly where it is taking different measures in regard to different categories of employees, it should do so with the assistance of expert medical and/or WHS advice. Depending on which State or Territory your business operates, it will be important to understand the current risk profile when assessing a return to work strategy for vulnerable workers.
  • When making any decisions with vulnerable workers be sure to consult and document the process. Any control measures implemented will need to be considered in the context of anti-discrimination laws.

Pregnant workers

  • Pregnant workers should be given special consideration when determining the risk of COVID-19 exposure.
  • If possible, arrange for them to work at home until the risk has passed or if that is not possible, providing alternate safe work that does not unreasonably expose them to the risk of exposure to infected workers or others.
  • It is still not clear from the information available whether pregnant workers are considered vulnerable. However, the evidence is that they share a number of characteristics with at risk people. In particular, a lowered immune system, which increases the risk of infection from Coronavirus. We note that there is little information from the Australian Government available on this point but the New Zealand Government recommends that pregnant women be considered an at risk group.
  • Given this guidance, employers should take a cautious approach when conducting a risk assessment with respect to pregnant workers, particularly given the consequences of the potential risk and the constantly changing health advice from authorities.
  • In determining how to minimise the risk to the pregnant workers, employers must take account of the increased likelihood that they will contract the virus or the greater consequences of infection, which may require a higher standard of reasonably practicable steps to manage the risk. If possible, this should be based on expert WHS or medical advice. This will assist employers to effectively meet its obligations under the WHS Act.
  • The Fair Work Act contains a number of provisions regarding pregnant workers, including the requirement for employers to find "appropriate safe job" for the "risk period" (ie. during the length of the pregnancy) without other changes to the worker's terms and conditions of employment if they are otherwise fit for work but it would be unsafe for the workers to continue in their current position because of hazards connected to the position. However, if there is no safe job available, the worker is entitled to "paid no safe job leave" for the risk period.

Issue

  • Balancing the greater demand and reliance on essential service workers with community and business demands.
  • To meet the demand, employers are requiring their workers to work longer hours and perform additional duties, often under pressure and time constraints. As the crisis continues and demands intensify, the risk of widespread worker fatigue and burnout will increase. 

Possible solutions

  • Review work schedules and ensure that workers who are working additional hours have an adequate amount of rest time in between shifts (this may be difficult for some employers where their services are facing unprecedented demand).
  • Training managers and supervisors to monitor and recognise signs of fatigue and continually assess for their fitness for work. 
  • Train workers to identity their own signs of fatigue.
  • Consider the worker's commute (eg. a lengthy commute will extend a worker's day, ensure workers are not so fatigued that they cannot safely travel to and from work).
  • Consider shift design whereby workload, work activity, shift timing and duration, direction of rotation and the number and length of breaks during and between shifts is altered to reduce the risk of worker fatigue.
  • Develop or (if already in place) update workplace fatigue policies and procedures and educating workers about the risks of fatigue.
  • Where possible, increase supervision of, or check-ins with workers working long hours to assess fitness and the worker's physical and mental wellbeing. 

Issue

  • Is temperature testing in the workplace an appropriate or adequate control measure for the COVID-19 virus?

Possible solutions

  • According to the World Health Organisation, temperature testing may be effective in detecting people with Coronavirus (COVID-19), but it will fail to detect those who are asymptomatic or those on medication that reduces temperature. It is also possible that people tested may have a high temperature for a reason other than COVID-19. This calls into question the effectiveness of temperature testing as a control. Nevertheless, we consider that there is scope for employers to implement temperature testing prior to entry to a workplace.
  • Employers should, however, be mindful of the limitations as a control measure and employee privacy concerns.
  • Employers cannot require a worker to submit to a temperature check without their consent but if managed appropriately it may be set as a precondition to working or access to site/premises.
  • Taking a person's temperature amounts to the collection of "sensitive information", which is a subset of personal information under the Privacy Act 1988 and the employer must comply with the requirements regarding the collection, recording and storing the information and care needs to be taken to ensure compliance.Employers must ensure this, along with other controls implemented to manage the risk of COVID-19 are regularly monitored and reviewed to ensure they remain relevant and effective.
    Review of control measures is especially critical where new information about the virus is being released on a frequent basis.
    Employers also need to keep the National COVID-19 safe workplace principles at the forefront of their decision making, as well as be on the lookout for the guidance material published on the Safe Work Australia website.

Issue

  • For employers who have a drug and alcohol testing regime in place, the development of the COVID-19 virus has created a tension between a duty to ensure workers are fit for work and the duty not to place those workers at risk of contracting the virus. 
  • Incidentally, experts consider drug and alcohol use is likely to increase amongst workers during the crisis as individuals find their own ways to cope with changes to their lifestyle and the health risks posed to themselves and others by the virus.
  • Employers (especially employers in high risk industries) should therefore not unwind fitness for work control measures such as drug and alcohol testing during the crisis and instead focus on ways to deliver on both fronts. 

Possible solutions

  • Consider the level of high-risk activities currently being performed and the workplace and reassess the need for drug and alcohol testing in the workplace during any restricted or limited operations.
  • Prepare a written risk assessment to evidence the rationale behind the risk management decisions and continue to monitor and update those risk assessments as further information about the virus is released. 
  • Investigate the risks imposed by the testing methods and consider whether they form an unacceptable level of risk, taking into account the above risk assessment 

Issue

  • Balancing the obligations to workers' health with business demands, especially as restrictions are eased and potentially reimposed in some States or Territories. 

Possible solutions

  • Prioritise setting up working from home arrangements for high-risk or vulnerable workers. 
  • Conduct a risk assessment for working from home. When taking into account the current working restrictions or recommendations this may require a staged approach, may be done on a group or generic basis at first instance and may take into account a balancing act of the risks of not being able to work from home, ie. if there is a greater risk of people working in the workplace control measures may be reduced or staged to allow compliance. Consider:
    • manual tasks the worker must undertake;
    • tripping / falling hazards;
    • electrical safety;
    • environmental risks (eg. noise, security, access / exits in case of emergency, first aid); and
    • an information hotline.
  • Consider work from home policies. If you are going to be in breach of policy with the more critical control, either change the policy or document why the policy will not apply on this occasion based on documented risk analysis.
  • If workers are working from home, regularly keep in touch to make sure they are healthy and coping with the working from home arrangements.
  • Establish good communication strategies to keep your workers updated of the situation. Consider:
    • regular briefings via teleconferencing facilities;
    • links to useful webpages; and
    • an information hotline.
  • Encourage workers to practise social distancing even when working from home. Remember they are still at work and you are still responsible to ensure their health and safety so far as reasonably practicable.
  • Considering workers may be required to work from home for a more extended period, further ergonomic assessment may be required.
  • Develop a self-check checklist for workers to complete that helps verify they are working in a safe environment.
  • Train your workers on how to conduct their work safely in external environments so you as an employer are protected.
  • Establish channels of communication for workers to provide feedback in relation to working from home difficulties, such as reporting WHS / technical difficulties.
  • Given working from home may still be in place for some time (or where workers may be alternating between working from home and working in the office), encourage workers to:
  • establish a dedicated workspace at home eg. ergonomic set up, free from distractions;
  • maintain a routine eg. encourage workers to keep active;
  • keep usual work hours where possible; and
  • maintain a sense of community by using technological resources to connect virtually with others in the workplace.

Tips and tricks for people managers

Crank up the communication

  • Communication with your team members is critical.
  • Be contactable and be proactive.
  • Aim for face-to-face interaction online (through video conferencing facilities) but also consider other communication methods eg. instant messaging through Skype or texting.
  • Don't forget to celebrate birthdays (options may be limited, but consider sending a card / cake / etc).
  • Celebrate wins and important developments.
  • Make time for casual conversations (with no agenda) and water cooler chat.
  • Watch tone of emails / messages. There are no visual cues so you have to be more aware of how your messages are landing. Did the nuances come through? Is the message resonating? Don’t conflate brief communications and clear communications.
  • Acknowledge there’s stress and difficulty.

Create some structure for each day

  • Aim for some daily rhythm and predictability.
  • Try to open and close the day in some fashion eg. a "good morning" email or a short team call to kick off / wrap up.
  • Timetable some individual check-ins with team members. Don't hesitate to be prescriptive about their tasks. Offer assistance with time management.
  • Recognise that some team members may have caring duties.
  • Consider a virtual team lunch / late afternoon drinks.

Virtual meeting etiquette

  • Remember the basics for (more formal) internal or external virtual meetings. Practice will make perfect.
  • Set an agenda, any ground rules, take breaks if needed, and clearly outline next steps (including timing and accountabilities) after each section and at the end of the meeting.
  • Keep presentations short and / or circulate them beforehand.
  • Call on individuals to speak. It keeps everyone present and avoids dominating voices / interruptions / talking over each other.
  • Consider if you could rotate meeting roles (eg. taking notes).
  • Don’t shy away from difficult conversations.

Issue

Ensuring, so far as reasonably practicable the health and safety of other persons.

Possible solutions

  • Employers need to consult, co-operate and co-ordinate with others beyond their workers. Consider the health and safety of customers, suppliers, workplaces with shared areas, building management and service providers such as cleaners, security and couriers.
  • Consider limiting contact / interactions with clients, customers, etc. and while restrictions are being eased:
    • limit non-essential visitors to the workplace;
    • conduct meetings virtually where possible; and
    • cancel on-site events and transfer them to a virtual platform where possible.
  • If face-to-face interactions are necessary:
  • limit the number of guests;
  • consider hosting events across various sessions to limit numbers at any one time;
  • consider providing guests with plenty of ventilation and space to move around;
  • provide access to hand sanitizer;
  • encourage those who are unwell or have returned from overseas or designated "hot spots" in Australia within the last 14 days to stay home;
  • ensure you are meeting the recommended social distancing.

Issue

  • Significant potential for increased risk to mental health of workers including those exposed, those working with risk of exposure and isolated workers.
  • These risks will continue to exist even when workers are able to return to the office and will become even more acute if a further wave of restrictions is introduced and workers are required to again work from home.

Possible solutions

  • On 15 May 2020, the National Mental Health and Wellbeing Pandemic Response Plan, developed by the National Mental Health Commission in conjunction with the NSW and Victorian Governments, was endorsed by the National Cabinet.
  • The plan is being supported by a $48.1 million Federal Government investment, has marked workplaces as key "outreach sites" for tackling COVID-19-related mental health issues, and has identified a wide range of worker groups significantly impacted by the pandemic. Employers have been directed to develop COVID-19 safety plans as pandemic restrictions ease.
  • The plan's three core objectives are to:
    • meet the mental health and wellbeing needs of all Australians to reduce the negative short- and long-term impacts of the pandemic;
    • outline core principles and priority areas to help jurisdictions respond to and recover from the pandemic; and
    • define governance, coordination and implementation requirements for collecting and sharing data across jurisdictions to facilitate informed planning.
  • The plan will invest $48.1 million into:
  • monitoring and responding to the mental health impacts of the pandemic;
  • suicide prevention research;
  • Primary Health Networks (PHNs) to deliver in-reach mental health services provided by mental health nurses (particularly targeted at groups most affected by the pandemic such as older Australians and Indigenous communities);
  • Carers Australia;
  • linguistically diverse mental health supports; and
  • a national mental health communications campaign to provide Australians with confidence to reach out for help. 

Exposed workers

Isolated workers

  • Increase access to EAP and communicate options to all workers – distribute phone details.
  • Consider increased risk of mental health issues arising from workers working from home and increased isolation from workplace.
  • Make regular contact with workers via phone, Skype or online messaging. This will make isolated workers feel involved and updated but it also gives them a sense of social support and engagement.
  • Consult early with all workers and particularly with those who have identified vulnerabilities or you have identified may be most impacted by COVID-19 and create a work from home plan specifically tailored to them and their needs.
  • Redistribute the contact details for trained mental health officer and / or human resources representatives who workers can reach out to while the worker is working from home.
  • Encourage workers to discuss with you any specific or individual concerns they may have about working from home, the impact any proposed control measures, not feeling connected to the team or COVID-19 generally.
  • Document your risk assessments, consultation efforts and decision-making processes with respect to risk management.
  • Encourage workers to maintain a routine while self-isolating or social distancing.
  • Make time for casual conversations (with no agenda) and water cooler chats.
  • Celebrate the little achievements and be sure to send plenty of feedback.

Workers returning to the work environment after a period of isolation / working from home

  • Workers who have worked from home for an extended period of time may experience a period of readjustment when asked to return to the workplace / office environment. Again, workers should be consulted in the development of return to work plans and they should be provided with an opportunity to express any concerns they have about returning to the work environment.
  • Remind workers that further restrictions are always possible, so that they can prepare mentally for the potential for further periods of working from home and isolation and discuss with workers what worked well during the initial working from home period(s) and what could be improved to build on learnings and provide workers with some sense of control.
  • Consider particular risks relating to FIFO workers. Some states have implemented particular restrictions for FIFO workers.

Employee entitlements

  • Generally under state workers' compensation schemes an employer will be liable for an
    injury" sustained by a worker if that injury arose out of or in the course of employment and employment is a significant contributing factor.
  • As exposure to COVID-19 can occur in public settings it will be very difficult, if not impossible, to determine the exact time and place of contraction, it is very difficult to determine that employment was a "significant contributing factor".
  • By issuing a directive or requesting employees to work remotely, the workplace in which an injury can occur is broadened.
  • No or limited control over employees' work from home environment increases risks in relation to other injuries being sustained and being compensable. This includes potential work-related liability arising in cases of domestic violence. In the recent case of Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54, the NSW Court of Appeal found that a woman was in the course of employment when she was killed by her partner while working from home. The woman was an employee of a financial advising business which she operated with her de facto partner in their home. Her partner was suffering paranoid schizophrenia and believed she was sabotaging the business and spying on him for ASIC. The employer was liable to pay death benefit compensation because there was a causal link between the attacker's delusions, the victim's employment and the harm suffered by her.
  • Social distancing / self-isolation and mandated requirements to work from home will also increase the potential occurrence of stress-related conditions that employees may consider to be work related and compensable. 
  • Employees might also experience distress from being unable to fulfil their duties and obligations properly during the pandemic. If unsupported, such "moral injuries" can develop into mental health problems like PTSD, anxiety and depression.

Possible solutions / issues to be aware of

In the workplace

  • Employers should implement as many of the practical WHS tips outlined above as possible to reduce the likelihood of an injury occurring in the first instance.
  • When considering how to limit the potential of the workplace as being the "source" of the infection and a "significant contributing factor" implementation of practical matters will assist such as:
  • provision of enhanced hygiene assistance (hand wash / signs);
  • requirements (which can be enforced) to restrict access to the workplace to individuals who are symptomatic;
  • enhanced education on how to avoid infection; and
  • allowing individuals who raise concerns about potential infection to work from home.
  • Performing tracing (to the extent possible) of an exposed employee's movement because the worker needs to demonstrate a causal connection between the onset of coronavirus and their employment.
  • Keep detailed records of exposed or potentially employees to identify the cause of the infection in the event an employee who is infected with COVID-19 attends their place of work, and spreads the infection to other workers in the same workplace.
  • If an employee thinks they were exposed to COVID-19 in the course of their employment, ensure they get a medical certificate confirming their diagnosis of COVID-19 because it is likely that the insurer will not cover wages during quarantine unless there is diagnosis of COVID-19, the exposure has been confirmed in connection with work, and there is an accepted workers’ compensation claim.
  • Workers who have a valid workers' compensation claim will have access to the usual support and assistance from their employers and the insurer as mandated by the workers' compensation legislation, including, but not limited to:
  • weekly compensation;
  • payment of medical and rehabilitation expenses; and
  • return to work support.
  • As COVID-19 continues to spread, identifying a causal link between employment and the injury will become more difficult and thus workers' compensation claims will be less likely. To minimise the number of claims now it is important to encourage employees to work from home where possible.
  • Identify if your workplace is more high-risk and prone to contracting COVID-19 and put in place more robust measures to reduce the likelihood of the workplace being considered the source of the infection.
  • Identify if your workplace is more high-risk and prone to contracting COVID-19 and put in place more robust measures to reduce the likelihood of the workplace being considered the source of the infection.

Working from home

  • Follow the practical WHS working from home tips outlined above to reduce the risk of any injury occurring.
  • If a worker injures themselves while working from home, request that they get a medical certificate and keep detailed notes about the incident so you have adequate information to assess the injury and report to your workers' compensation insurance. If the worker was performing tasks in the course of their employment it is likely they will be covered by their employer's workers' compensation insurance.
  • If there are known cases of employees suffering from domestic violence or other family issues at home, employers must consider and balance the appropriateness of a work from home directive with the prevailing health and Government directives to ensure, to the extent possible, that they have a safe environment to work in.
  • Even if there are not known cases of domestic violence and family issues, employers should take steps to ensure they are caring for their employees' mental health and physical health while they are working from home.

COVID-19 occupational disease declaration

  • The ACTU has requested Comcare and state-based workcover schemes to declare COVID-19 an occupational disease within the health industry. This would make it easier for health care workers who suffer from COVID-19 to receive workers' compensation.
  • Health care workers are at a higher risk of contracting COVID-19 because they are required to personally attend to and treat people with the disease. Extension of time for WorkCover benefits in Victoria.
  • The Victorian Government has passed a Bill that is extending timeframe for workers with long-term injuries to access WorkCover benefits. Injured workers who are unable to return to or find employment because of the combined impact of their injury and the pandemic will have access to six additional months of weekly workers' compensation payments. This will apply to any worker who has received notice about the termination of their benefits after 130 weeks of payments, since 1 December 2019.

Extension of time for WorkCover benefits in Victoria

  • The Victorian Government has passed a Bill that is extending timeframe for workers with long-term injuries to access WorkCover benefits. Injured workers who are unable to return to or find employment because of the combined impact of their injury and the pandemic will have access to six additional months of weekly workers' compensation payments. This will apply to any worker who has received notice about the termination of their benefits after 130 weeks of payments, since 1 December 2019.

COVID-19 presumptions in NSW

The NSW Government has amended the Workers Compensation Act 1987 (NSW) to allow for a range of workers to access workers' compensation if they contract COVID-19. The amendment will apply to workers employed in retail, health care, disability and aged care, education, police and emergency services, refuges, halfway houses and homeless shelters, transport services, libraries, courts and tribunals, correctional centres and detention centres, restaurants, clubs and hotels, the construction industry, public entertainment and the cleaning industry. If workers in these sectors contract the virus, it will be presumed (unless proven otherwise) that the disease was contracted in the course of their employment, and that the employment was either a substantial contributing factor or the main contributing factor.

Issue

  • Company may decide to provide special leave or other payments.
  • Some larger businesses have instituted two (2) weeks' paid "pandemic leave".
  • Company should direct eligible employees towards government financial assistance if they are unable to support the employee themselves as both federal and state economic stimulus packages have been announced. The packages seek to inject $189 billion into the economy in an attempt to keep Australians in work and businesses in business.
  • Potential reputational impacts in circumstances where employers cannot provide ex gratia financial assistance where they were promised. 

Possible solutions / issues to be aware of

  • Companies can make decisions to pay employees on a case-by-case basis if necessary.
  • Companies may choose to institute and pay some or all employees (depending on the operation of the businesses under government directives) an additional special two weeks' paid "pandemic leave".
  • Consider the ability to make ex gratia payments to employees before offering.
  • Small and medium sized businesses should access the Federal Government's Boosting Cash Flow assistance package. The tax-free payment ($10,000-$50,000) will provide cash flow support to businesses with a turnover of less than $50 million that employ staff, between 1 January 2020 and 30 June 2020. An additional payment is also being introduced in the July- October 2020 period.
  • Employers with apprentices and trainees may be able to apply for a wage subsidy of up to 50% of the apprentice's wage (maximum of $21,000 per apprentice) or trainee's wage (maximum of $7,000 per quarter per trainee) from 1 January 2020 to 30 September 2020.
  • Encourage casual workers who are already under the Australian welfare system to access the Government "sickness payment" if they need to self-isolate and are unable to work.

What Federal Government entitlements are available to employees?

  • The Australian Government has introduced various financial assistance packages that employees may be able to access if they have recently been stood dawn, made redundant or an employer has reduced an employee's hours. Generally, these benefits form part of Jobseeker or Youth Allowance payments (Jobseeker Payment).
  • Employees cannot be accessing employer entitlements (eg. sick leave and/or annual leave or Income Protection Insurance) at the same time as accessing or seeking Jobseeker Payments.
  • Income support for individuals: Provides jobseekers and those on youth allowance with an additional $550 per fortnight (Coronavirus Supplement Payment). This economic response package has expanded access so that permanent employees who are stood down or lose their employment, sole traders, the self-employed, casual workers and contract workers, can access this financial assistance too. To be eligible the individual must meet the income test (earning less than $1,075 per fortnight as a result of the economic downturn due to the Coronavirus).
  • Payments to support households: This is a onetime payment of $750 that Australian residents who hold a concession card can access at any time from 12 March 2020 to 13 April 2020 inclusive. Eligible recipients will receive a second $750 payment on 10 July 2020 if they are not eligible for the Coronavirus Supplement Payment.
  • Temporary early release of superannuation: Specific individuals may access up to $10,000 in 2019-2020 financial year and access a further $10,000 in the 2020-2021 financial year. The individuals who are permitted to access their superannuation early include:
  • unemployed;
  • eligible recipient of the expanded Jobseeker Payment;
  • individuals who on or after 1 January 2020 were made redundant or had their working hours reduced by 20%; and
  • sole traders whose business was suspended or has seen a reduction in turnover of 20 per cent or more as a result of the coronavirus.
  •  

  • The coronavirus early superannuation release program had paid out $11.12 billion to 1.35 million people by May 11, with 57% of applications from males and 43% from females, according to updated Treasury data (25 May 2020).

Some State and Territory Governments have also announced economic stimulus packages which benefit both employers and employees:

  • The New South Wales Government released a $2.3 billion stimulus package to boost funding for NSW Health, and support business and jobs in NSW. The package includes:
  • waiver of payroll tax for businesses with payrolls of up to $10 million for three months;
  • employing additional cleaners of public infrastructure such as transport assets, schools and other public buildings; and
  • waiving a range of fees and charges for small businesses including bars, cafes, restaurants and tradespeople.
  • The Western Australian Government released a $607 million stimulus package to support Western Australian householders, pensioners and small businesses. The package includes:
  • $402 million to freeze on household fees and charges, including electricity, water and public transport fares until at least 1 July 2021;
  • a one-off grant of $17,500 to pay payroll tax for businesses with a payroll between $1 million and $4 million; and
  • small and medium sized businesses affected by COVID-19 can now apply to defer payment of their 2019-2020 payroll tax until 21 July 2020.
  • payroll tax support including a refund of payroll tax for two months and the ability to defer payroll tax for the 2020 calendar year;
  • support for tourism operators and hospitality providers;
  • support to the agriculture and fishing industry, and exporters; and
  • a $27.25 million immediate industry recovery package to assist local government, business and industry mitigate the impacts of COVID-19; and
  • emergency rental assistance payment of up to $500 a week for up to four weeks for individuals who cannot afford their rent.
  • weekly compensation;
  • a freeze on government fees, charges and electricity prices until 1 July 2021;
  • a $5 million business structural adjustment package to assist businesses who need to physically adjust to the 100-person government directive or to establish or upgrade their online presence to adjust to changing behaviours of consumption
  • a $30 million home improvement scheme; and
  • a $20 million business improvement scheme, pursuant to which eligible businesses will get an initial $10,000 grant for upgrades, and another $10,000 if they contribute $10,000 of their own money.
  • small and medium size businesses with payrolls of less than $3 million will be able to defer any payroll tax until 1 January 2021;
  • $500 million will be injected into the hardest hit sectors including tourism, retail and entertainment; and
  • commercial tenants can apply for rent relief.

Issue

  • There is nothing to prohibit employers making a once off hardship payments (or more commonly known as an Assistance Payment). This is a form of payment that an employer can make to an employee during an emergency situation. The purpose of an Assistance Payment is to provide extra help to employees, in addition to their normal employee entitlements.
  • The Assistance Payment is made in addition to receiving income related payments, such as salary and employee entitlements. However, it needs to be paid in respect of an emergency, such as a natural disaster, an armed conflict, a civil disturbance, an accident, a serious illness, or any similar matter. This includes the current Coronavirus situation.

Things to know

  • Assistance Payments are entirely a discretionary matter for the business to consider. There is no requirement for the business to provide these payments.
  • As the Assistance Payment is not related to any services / work that the employee is undertaking (ie it is not a form of income, such as salary or wages) the payment would not be considered a taxable income. It also does not attract a requirement to pay superannuation.
  • An employer who gives emergency assistance to an employee can claim a tax deduction as a business expense (seek specialist tax advice before making any decision).
  • See Assistance / Hardship Payments and tax treatment for more information

Issue

  • On 30 March 2020, the Commonwealth Government announced a "JobKeeper" payment, under which businesses impacted by COVID-19 will be able access a subsidy to continue paying their employees' wages. Learn more about it in our FAQ and How-To Guide.

Issue

  • Stand down provisions exist in the Fair Work Act (FW Act) and can also be found in enterprise agreements and contracts of employment. Stand down provisions provide a mechanism to stand down workers, often without pay, in certain specific circumstances usually limited to:
  • industrial action;
  • breakdown of machinery; and
  • (relevantly) stoppage of work.
  • However the use of stand downs in a bid to manage business impact arising from COVID-19 is likely to be closely scrutinised and can be challenged by an employee or union in the Fair Work Commission (FWC) if not implemented strictly in accordance with legal obligations.
  • The ATO is rapidly preparing guidance materials on the taxation and superannuation implications of stand down payments.

Possible solutions / issues to be aware of

Prior to consideration of stand downs we recommend:

  • Consult with staff to see if alternative arrangements can be made (eg. a reduction in hours or days of work).
  • Identify other tasks workers can undertake if their usual tasks have been disrupted (this must occur before a stand down may be considered valid).
  • Redeploy the worker to another part of the business.
  • Allow staff to take paid or unpaid leave if requested.
  • Allow employees alternative leave arrangements such as extended annual leave at half pay or early long service leave (if permitted under any applicable award, enterprise agreement or contract).
  • Consider special leave arrangements for employees with insufficient accrued leave to cover the period of shut down (eg. allow staff to purchase leave which is then deducted on a pro rata basis from their annual wage).

If the business needs to further consider stand downs it will be important to keep in mind that:

  • The stand down provisions in the FW Act will not apply if a stand down provision exists in a contract or enterprise agreement – check which instrument applies.
  • Under the FW Act employers only have the right to temporarily stand down employees without pay during a period in which the employees cannot be “usefully employed” because of (relevantly) a stoppage of work for any cause for which the employer cannot reasonably be held responsible.
  • “Usefully employed” means that the employment will result in a net benefit to the employer’s business by reason of the performance of the particular work done by the employee.
  • Employers have no common law right to stand down or send home employees for whom they cannot find work, whether because of a turndown in business or because of factors outside the employer’s control such as the outbreak of COVID-19. The power to stand down is only derived from contract, enterprise agreements and the FW Act.
  • The Fair Work Ombudsman (FWO), has expressed the following view in relation to the exercise of the stand down power related to COVID-19: "Standing down employees without pay is not generally available due to a deterioration of business conditions or because an employee has the 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."
  • Despite the statement from the FWO the rapidly evolving nature of the COVID-19 outbreak could result in a situation that meets the requirements for stand down under the Act, for example where an entire department, office or operation is required to close due to mandated quarantining of the workforce or the business’ customers or where directed to close by the government. Employers may also be able to consider standing down employees where a business has been so severely impacted by import / export restrictions resulting from COVID-19, that there is no work at all available to employees.
  • Stoppage of work has been interpreted by the FWC in Australian Federation of Air Pilots v Australian Helicopters Pty Ltd [2013] FWC 7863. The case concerned the requirement to stop flights while the affected aircraft underwent aircraft maintenance. The Commission held that scheduled heavy maintenance of aircraft was required for, planned and known by the employer. In particular the Commission said the maintenance was not an exceptional or unexpected event. In the circumstances the employer could not argue the stoppage in question was one that it could not reasonably be held responsible for. The carve-out therefore seems to be matters that can be described as exceptional or unexpected and that an employer cannot be held responsible for. It may be that the impact of COVID-19 would be considered exceptional and unexpected on some businesses and, in the absence of other practical solutions, this may be an option to further consider.
  • There will be no right to stand down if there is useful work available for the employee to do which is within the terms of the employee’s contract of employment. It need not be work the employee normally carries out. It is an essential part of stand down that the decision is a unilateral one of an employer to withhold work and payment even when employees are prepared to perform all duties.
  • Employees can be stood down for the period of time while the business is dealing with the issue AND employees cannot be usefully employed.

Situations where stand down does NOT apply

  • Where an employer refuses to pay an employee in response to the employee’s refusal to work (eg. for safety reasons) in accordance with the contract of employment.
  • If an enterprise agreement or contract of employment makes provision for stand down. In these circumstances the provisions in the agreement or contract will apply as opposed to the FW Act. They may have different or additional rules about when an employer can stand down an employee without pay.
  • An employee is taking authorised leave (paid or unpaid) or is otherwise authorised to be absent from their employment.
  • If there is work available and some employees can be usefully employed you cannot stand down all employees, only those employees who cannot be usefully employed.

Risks to consider when standing down employees:

  • General protections claims: particularly in relation to the decision to stand down some employees and not others.
  • Unfair dismissal claims: this risk increases as the length of the stand down grows and if an employee may allege constructive dismissal.
  • Workers' compensation claims: this is a time of particular uncertainty for employees, an employer's process and decisions could exacerbate the psychological impact and lead to claims.
  • Reputational damage if the employer is perceived to be treating employees harshly / benefitting unjustly from the use of stand down provisions.

Proceed with caution:

  • This is an area that will be subject to intense scrutiny as the impact of COVID-19 continues to be felt. The incorrect application of the stand down provisions will likely result in industrial action and/or injunction applications from unions to return individuals to work and/or prevent the use of the stand down provisions. It may also result in prosecution by the FWO if the Regulator considers that the provisions have been inappropriately applied. Advice that takes into consideration the specific impact of COVID-19 on your business is essential before acting.
  • Unions lodged an action in the Federal Court against Qantas for its refusal to pay sick leave to stood down workers. Qantas claims that employees are not eligible to receive paid sick leave while they are stood down. On 18 May 2020, Justice Flick dismissed the applications, finding that there is no obligation to pay sick leave, carers' leave or compassionate leave to stood down workers (see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited [2020] FCA 656 (Qantas Sick Leave Case). Justice Flick said that these types of leave are an entitlement of employees to take leave from otherwise performing the work they are required to perform, and therefore they are a form of income protection. If there is no work available to be performed, there is no income and no protection lost. The TWU is looking to appeal the ruling.
  • On 25 May 2020, the FWC, in examining how employers can lawfully assess what is "useful work" when standing down employees, ruled that a pandemic-affected cruise operator acted "upon proper principles" when transferring some of a superintendent's duties to others. Deputy President Nicholas Lake observed that three "primary criteria" must be satisfied for a stand down to be lawful under s524(1) of the Fair Work Act:
    • the employee must be stood down during a time in which they cannot be usefully employed;
    • one of the following three sub-criteria of section 524(1) must be present:
      • industrial action (other than industrial action organised or engaged in by the employer);
      • a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown; or
      • a stoppage of work for any cause for which the employer cannot reasonably be held responsible; and
    • the employee cannot be usefully employed because of the stoppage.
    • What constitutes a work stoppage? Having rejected a "mere reduction" in available work as satisfying the statutory requirement, the Deputy President said there still remained a question as to whether a genuine stoppage of work occurs "when an employer's business is not trading, but there still exists some limited functions that can be performed". It was determined that "Work" applies to the "activity" of the business, which in this case related to the carriage of passengers on various cruise holidays. Here, "this activity had entirely halted" and was therefore properly characterised as a stoppage of work.
    • This might flag the start of cases that, given the progress of time, and ongoing stand down, look more critically at the appropriateness of stand down as restrictions continue to ease in most states.
    • The ALAEA applied to the FWC in March to reverse the standing down of licensed aircraft maintenance engineers by Qantas and Jetstar. The Federal Court has taken over the matter due to jurisdictional concerns.
  • The Independent Education Union of Australia has challenged the standing down of teachers by several Victorian independent schools. The union claimed that the schools can find useful work for the teachers to perform. Before the FWC made a finding on the matter, the schools withdrew the stand downs and announced that they would back pay employees for the periods of stand downs.
  • In light of the propensity of unions to litigate in this area, employers should carefully document decisions relating to stand down  including in relation to alternative employment options that were considered.
  • Communicate with employees regularly. Inform employees about how the company is approaching the rapidly changing COVID-19 situation, what impact the crisis has had or will have on operational strategies and generally, check in regularly in relation to employee's mental health and well-being (both prior to and during stand down) – remember they remain your employees even during a period of stand down when they are not being paid.
  • Continually remind employees to access EAP services if they need to.
  • Closely and constantly consider options to return people to work as soon as possible, or consider redundancies where appropriate.
  • If dismissals are required, carefully follow the company's usual policies in relation to termination and redundancy.
  • Leave entitlements will continue to accrue during the stand down period.  However, in light of the Qantas Sick Leave Case referred to above, there is no obligation to pay sick leave, carers' leave or compassionate leave to stood down workers (subject to the Federal Court's decision being appealed).
  • Public holidays occurring during a period of stand down, that the employer may otherwise have been able to take, may still need to be provided and paid for. This is a complex area and one that may depend upon the work undertaken by the employee. You should take specific advice on the issue.

Who can be stood down?

  • The Government has previously directed that all "non-essential" services and gatherings be shut down to increase adherence to social distancing requirements and reduce the risk of transmission of COVID-19. Employers operating the following services have been considered "affected employers" and their employees can be considered "affected employees" (this is not a complete list):
  • pubs, registered and licensed clubs (excluding bottle shops attached to these venues) and hotels (excluding accommodation);
  • beauty salons including waxing, tanning and nail salons and tattoo parlours;
  • gyms, swimming pools and indoor sporting venues;
  • cinemas, theatres, entertainment venues, casinos and night clubs;
  • restaurants and cafes (except for takeaway and home delivery);
  • shopping centre food courts;
  • amusement parks and arcades;
  • libraries, museums and galleries; and
  • religious gatherings and places of worship.
  • This alone does not trigger the right to utilise the stand down provisions but provides a good starting point. You must still consider the test for standing down employees as set out in the FW Act, Enterprise Agreement or contract and generally set out in this Briefing Note.
  • Given restrictions are now easing in most States the ability to continue to rely on relevant provisions to support ongoing stand down will become more difficult. That said, stand down does not need to be applied equally to all staff and can be relaxed on a case by case basis (but employers should be mindful of how staff are chosen noting the ongoing application of discrimination, adverse action and reprisal action laws).

Issue

  • Under the FW Act, an employee can take paid personal / carer's leave to provide care and support to a member of the employee's immediate family who requires care and support because of an illness / injury or because of an unexpected emergency affecting the family member.
  • A member of the employee’s immediate family means:
  • a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of an employee; or
  • a child, parent, grandparent, grandchild or sibling of the employee’s spouse or de facto partner.
  • Workers may have to leave work at short notice to collect their children if the school / childcare facility decides to close down or the school is directed by the government to close.
  • Workers may also not have alternative care arrangements to care for children for a period of time if schools shut.
  • There may be a higher frequency of workers needing to take leave to care for their sick child.
  • Employees who have been stood down may have ample personal leave available and want to access this if they do not have any annual leave they can rely upon. Employees may request to access such leave entitlements at this time.

What you need to know

  • Err on the side of caution when approving or declining a carer's leave request.
  • Be lenient (if possible) when granting carer's leave as the provision in the FW Act should be interpreted really broadly given the use of the word support.
  • Remind employees of the notice and evidence requirements associated with accessing carer's leave. Only if the employee does not comply with these requirements will they not be entitled to take the time off as personal / carer's leave.
  • Notice must be given as soon as practicable which may and can be a time after the leave has started. The employee does need to advise you at this time about their expected period of leave.
  • You may request that the employee provide you with evidence that would satisfy a reasonable person. This may include a medical certificate or statutory declaration.

Can employees use personal leave when they are stood down or unable to perform their job from home?

  • In the Qantas Sick Leave Case referred to above, the Federal Court found there is no obligation to pay sick leave, carers' leave or compassionate leave to stood down workers. Unions are looking to appeal the ruling.
  • However, employers should still consider employees' requests to take personal leave during a period of stand down on a case by case basis. This is an evolving area of the law and employers should seek specific advice that is relevant to their business and whether the Qantas Sick Leave Case applies to their own circumstances. It is likely that both options (paying personal leave or not paying personal leave) will bring their own set of risks, so businesses will need specific advice to properly assess those risks.
  • If an employee was already on personal leave before a period of stand down commenced, they should continue to receive pay for personal leave.

Can an employee who is not sick but self-isolating (as they have returned from overseas or been exposed to someone who has tested positive for COVID-19) access personal leave if they are unable to work from home?

  • Employees in this situation will not be able to access personal leave as they are not unwell or required to care for an immediate family member.
  • If an employee become unwell during the period of self-isolation, they will then be entitled to personal leave, subject to satisfying the usual notice and evidence requirements. Employers should regularly stay in touch with employees throughout this time.
  • Given there is now a government directive requiring individuals who have returned from overseas to self-isolate for 14 days, employers should explore what other tasks employees could perform from their homes so the employee can be utilised if possible and compensate them accordingly. This will encourage employees to self-isolate and not attend the workplace when they have possibly been exposed to the virus.

Example. An electrician who has returned from overseas and is required to self-isolate for 14 days in accordance with the government directive. The electrician's employer gives them approximately 4 hours of administrative work to complete from home each day. This means the electrician will be paid for 4 hours a day but isn't entitled to payment for the rest of his ordinary hours.

Can employees use personal / carer's leave to care for a sick child?

  • This area is uncontentious. A full time or part time employee may take paid carer’s leave if the leave is taken to provide care or support to their child (or children) if they are ill or injured.
  • Under the FW Act, casual employees are entitled to two (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 but will likely still be required to still fulfil the notice and evidence requirements.
  • Casual employees don't have paid sick or carer’s leave entitlements under the National Employment Standards (NES) and usually are not entitled to be paid when they don't work (for example, if they miss a shift because they are sick due to COVID-19 or because they are otherwise required to self-isolate). Casual employees are paid a casual loading instead of paid leave entitlements.
  • Employers should consider their obligations under any applicable enterprise agreement, award, employees’ employment contracts or workplace policies, which may be more generous.

Use of carer's leave to pick up children when school / childcare closes and / or take time off work if a child is in quarantine or schools are closed and no one else can care for them:

  • This situation is less black and white because the individual circumstances need to be considered. An employee can take paid personal / carer's leave to provide care and support to a child who requires care and support because of an unexpected emergency affecting the family member.
  • An employee needing to collect her child from school because alternative arrangements fell through, was an "unexpected emergency" for the purposes of paid personal / carer’s leave in Wilkie v National Storage Operations Pty Ltd [2013] FCCA 1056.
  • Commissioner Roe in the case of Noutsis v Through Road Child Care Association Inc (t / as Through Road Kindergarten Children's Centre) Receipt (Pls Leave) [2011] FWA 8816 noted (at [53]) that whether the circumstances in that case amounted to an "unexpected emergency" was "a matter about which reasonable minds might differ". This case also highlighted that whether something is an unexpected emergency is very fact specific, and will depend on the relative position of all the parties concerned.
  • Situations where employees should be particularly understanding regarding employees needing to take carer's leave:
  • single parent households
  • where an employee's spouse is an frontline worker and unable to take leave themselves.
  • While there has been discussion about schools and businesses possibly closing for weeks now, the decision to close down schools and childcares will undoubtedly be made at short notice and carers may only be notified of the school closure less than 24 hours prior to it occurring. It is unreasonable to expect or require employees to take annual leave just on the off chance their child's school might close that day.
  • School closures could be considered an "unexpected emergency" and employers should allow employees to use their carer's leave. Especially when the announcement is made to come and collect your child immediately or not allow them to return with less than 24 hours' notice. The FWO concurs.

Example 1. If an employee is contacted by their child's childcare centre and informed that as on tomorrow the childcare centre will be closed for 48 hours because a child at the centre tested positive to coronavirus the employee should be able to take paid carer's leave to stay home and care for their child if no alternative carer is available to assist because the closure of the childcare centre on short notice is an unexpected emergency.

Example 2. In the absence of an enforceable government directive to keep children at home, if an employee simply wants to keep their child home from school, despite the school still being open, the situation would not be considered an unexpected emergency, as such the employee would have to use annual leave.

  • Employers should also consider allowing employees to access carer's leave for a reasonable number of days while employees organise appropriate alternative childcare arrangements. This may be different periods of time subject to individual circumstances.
  • Be mindful that organising alternative childcare arrangement will be particularly difficult during a pandemic.
  • Be flexible and understanding – it will decrease the risk of your business facing a discrimination, general protections claim or stress claims.
  • Regularly check in on your employee and see what the business can do to help, including any accommodations that might be made to assist the employee return to work sooner. 

Issue

  • Businesses are exhausting every option trying to keep staff on their books ensure the businesses is able to resume normal activities as soon as possible following what will be an extended period of disruption, especially those who have worked with the employer for a significant period of time.
  • Employees typically need to apply one (1) month in advance of accessing long service leave

Possible solutions

  • Urgent amendments to Long Service Leave Acts could be sought to create greater flexibility for employers and employees to access leave during the ongoing COVID-19 crisis.
  • NSW Parliament amended the Long Service Leave Act 1955 to allow employees to take leave in shorter blocks, such as one day a week (rather than the traditional monthly blocks), and without the traditional one-month notice period, by agreement with their employer. The legislation will have effect for six months from 25 March 2020 with the possibility of an extension to one year.

Issues

  • Under the FW Act a pregnant employee, who is otherwise fit for work, but provides evidence that it is unsafe to continue in their current position because of hazards connected to the position must be transferred to an "appropriate safe job" for the "risk period" with no other changes to the employee's terms and conditions of employment. Under the FW Act, the risk period is essentially the length of the pregnancy.
  • If the employee is transferred to an appropriate safe job for the risk period the employer must pay the employee for the safe job at the employee's full rate of pay for the risk period.
  • However, if there is no safe job available, the employee is entitled to "paid no safe job leave" for the risk period. This means the employee will be able to take paid leave and not attend for work while still being entitled to pay and other entitlements. This paid leave is in addition to any maternity leave entitlements.
  • The COVID-19 outbreak and recommendations in relation to isolation of vulnerable individuals may mean that, other than work from home, no alternative safe job can be provided to pregnant workers. While there doesn't appear, at this time, to be any definitive medical information about the impact on pregnant people they are generally considered to be higher risk / vulnerable category.

Things to know

  • Employers must pay affected pregnant full-time or part-time employees at the base rate of pay for ordinary hours of work in the risk period if there is no safe job. Casual employees must be paid at the base rate of pay, not including casual loading, for the average number of hours the employee would have worked in the period they are on "no safe job leave".
  • Be flexible and assist the employee to transition into another role where possible.
  • Employers are entitled to request a medical certificate from the employee providing evidence that they can work but cannot do their normal job due to safety risk (eg. catching public transport, contact with the general public as part of their role).
  • If the employee is paid no safe job leave during the six week period before the expected date of birth of the child, an employer may ask the employee to provide a medical certificate stating whether the employee is fit for work. 

Issue

  • Risk of adverse action and discrimination claims arising from perception of management actions taken in direct response to COVID-19.
  • Under the federal discrimination legislation, the Disability Discrimination Act 1992 (Cth) (DDA), a positive diagnosis of COVID-19 would be considered a disability as disability includes the presence in the body of disease-causing organisms, and also includes "imputed" disabilities. Accordingly, a person who has tested positive to COVID-19 would have a disability for the purpose of the DDA.
  • It is unlawful for an employer to directly or indirectly discriminate against an employee because of a disease, illness or injury. However it is open for the employer to assess whether the disease prohibits their ability to complete the inherent requirement of their role and manage them accordingly, subject to any reasonable accommodations that could be made.

What does this mean in the context of the COVID-19 pandemic?

  • Ensure mandated isolation / removal from the workplace decisions are medically required and supported by expert advice.
  • Document all decision-making processes and ensure proper processes and company policy is complied with.
  • Take particular care and seek advice where decision may be perceived to be because of race, age, disability, ethnic origin, parental responsibility or some other prohibited reason.
  • Ensure workers treated consistently and with parity where appropriate.
  • Ensure workers who access rights including the taking of sick leave, reporting of workplace risks and complaints are protected from reprisal action.
  • Consider increased risks of bullying, harassment, reprisal action and victimisation by other co-workers and ensure management is supported in dealing with it proactively.
  • Regularly communicate and update all employees.
  • Section 48 of the DDA permits discrimination on the basis of a disability that is an infectious disease, such as COVID-19, where the discrimination is "reasonably necessary to protect public health". NSW, Victoria and Queensland anti-discrimination legislation include similar provisions. This section (in conjunction with the mandatory Federal Government directions) would allow employers to lawfully request employees not to attend the workplace until they are deemed healthy.

Issue

  • It has become obvious modern awards are not designed to provide the level of flexibility the COVID-19 pandemic requires, particularly in terms of addressing potentially restrictive hours of work and associated payments. 

Possible solution

  • Unions, employers and employees alike might seek to lodge an application before the FWC under section 158 of the FW Act, which enables applications to vary, revoke and make modern awards.
  • Recent applications have sought to incorporate a new schedule to provide for award flexibility on a temporary basis during the COVID-19 pandemic and while the resulting public health orders are in effect.
  • The decision will assist employers' ability or desire to retain as many employees in employment as possible, albeit on reduced hours.
  • Watch this space closely as undoubtedly other awards will be varied to provide this additional level of flexibility.

Hospitality Industry (General) Award (Hospitality Award)

  • On 24 March 2020 the FWC made a determination to vary the Hospitality Award. The new Schedule L applies from 24 March to 30 June 2020. This bid was put forward in response to the sudden closure of substantial parts of the hospitality industry as a result of the Federal and state government public health orders.
  • The variation has enabled employees to work across classifications and duties providing they licenced and/or have the correct qualifications, such as Responsible Service of Alcohol (RSA) certification or truck licence.
  • The changes also include a provision that allows full-time employees to work a reduced average of 22.8 to 38 ordinary hours per week, as directed by their employer, while part-time workers can work an average 60% of their guaranteed weekly hours. The purpose of this is to ensure that any reduction in hours does not put employees in breach of existing Hospitality Award requirements.
  • The variation also permits employers to direct employees to take annual leave upon a reduced 24 hours' notice and allows the parties to agree that employees can take twice their allocation of annual leave but at half their normal rate of pay.
  • Employers must consult with employees and the relevant union/s before making any changes to employees' conditions. Disputes may go to the FWC.
  • It was argued the variation should be made to achieve four of the modern award objectives in section134(1) of the FW Act, namely:
  • (a) relative living standards and the needs of the low paid; and
  • (c) the need to promote social inclusion through increased workforce participation; and
  • (d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
  • (f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden.
  • On 29 June 2020, the FWC made a determination to replace the 24 March 2020 amendments to the Hospitality Award with a separate amending schedule. The new amendments maintain some of the flexibilities available under the first amendments and include greater protections for employees. The main differences between the first amendments and the second amendments are:
    • the exclusion of employees employed by an employer that qualifies for JobKeeper;
    • the requirement for the employer to advise the employee in writing that the employer consents to arbitration;
    • the requirement that a direction in relation to hours of work can only be given in certain circumstances (the employee cannot be usefully employed for the normal days or hours because of changes to business attributable to COVID-19 or government initiatives or to slow the transmission of COVID-19); and
    • the inclusion of some additional safeguards around annual leave.
  • The new amendments will operate from 1 July 2020 to 27 September 2020.

Clerks – Private Sector Award (Clerks Award)

  • An urgent application was made to the FWC to allow employers to make reductions in working hours while keeping the same hourly rate of pay for up to one million workers covered by the Clerks Award. In a special Saturday sitting, the FWC made a determination to temporarily vary the Clerks Award.
  • The determination does not take effect until the start of the first full pay period that starts on or after 28 March 2020.
  • Where hours are reduced, the employee's ordinary hourly rate will stay the same. However, the employee will continue to accrue entitlements in accordance with their ordinary hours of work prior to the agreement to reduce hours.
  • The application seeks to introduce flexibility options to provide relief to business and employees during the pandemic by:
    • allowing employees and employers to agree to change ordinary hours of work while an employee is working at home;
    • giving workers expanded options to help manage their job around things like schooling children from home during the day (without an employer facing additional costs for work being conducted out of the usual span of ordinary hours);
    • allowing staff to work more flexibly across classifications, provided the employee has the relevant qualifications;
    • increasing flexibility in taking leave such as double leave at half-pay, where employers and employees agree; and
    • giving employers flexibility to reduce hours for full and part-time staff, whilst allowing employees whose hours are reduced to take on another job without penalty.
      • On 30 June 2020, the FWC granted an application to extend the variations to the Clerks Award, enabling employees to spread out working hours without the application of penalty rates until 27 September 2020. However, there will be a reduced span of work hours, protections for part time and casual workers, dispute arbitration and the right for workers to vote against continuing reduced hours.

Redeployment measures

  • The FWC has also endorsed coronavirus redeployment measures agreed between the United Workers' Union and DHL Supply Chain (Australia) Pty Ltd. The agreement mitigates job losses caused by the pandemic by facilitating temporary redeployment of employees in severely affected sectors to industries with ongoing work.
  • Employees will maintain their terms and conditions while temporarily working in other industry sectors to eliminate inefficiency in this turbulent time.
  • The redeployment arrangements operate for 90 days but has the potential to be extend beyond this time.
  • The Commissioner has granted the parties "liberty to apply at short notice" for further proceedings if disputes arise.
  • This is a common sense initiative which other companies with large supply chains could consider. 

Restaurant Industry Award 2010 (Restaurant Award)

  • On 31 March 2020, the FWC made a determination to temporarily vary the Restaurant Award to mitigate against the current impacts of COVID-19 on employees and employers covered by the Restaurant Award.
  • The Restaurant Award has been amended to allow employers to:
    • direct employees to perform any duties that are within their skill and competency regardless of their classification, provided that the duties are safe and the employee is licensed and qualified to perform them;
    • direct full-time employees to work an average of between 22.8 and 38 ordinary hours per week on a pro-rata payment basis;
    • direct part-time employees to work an average of between 60% and 100% of the guaranteed hours per week over the roster cycle; and
    • direct an employee to take annual leave within 24 hours' notice (ordinarily, under clause 35.5 of the Restaurant Award, directions to take leave cannot give less than 8 weeks' notice and can only be made where an employee has excessive leave accrual, being more than 8 weeks).
  • In the event of a close down of all or part of operations, an employer may require an employee to take annual leave by giving at least one week's notice (instead of the four weeks' notice currently required by clause 35.3 of the Restaurant Award). Where an employee has not accrued sufficient leave to cover part or all of the close-down, the employee is allowed paid annual leave for the period for which they have accrued sufficient leave and given unpaid leave for the remainder of the closedown.
  • Employees that are directed to work less than their ordinary hours of work will continue to accrue annual leave and personal leave based on their ordinary hours of work. If an employee takes paid annual leave or personal leave, the payment for that leave will be based on the employee's ordinary hours of work.
  • An employer and an employee may also come to an agreement for the employee to take twice as much annual leave at half the rate of pay for all or part of any period of annual leave.
  • The amendments will operate until 30 June 2020. The period of operation can be extended on application.
  • On 29 June 2020, the FWC made a determination to replace the 24 March 2020 amendments to the Restaurant Award with a separate amending schedule. The new amendments maintain some of the flexibilities available under the first amendments and include greater protections for employees. The main differences between the first amendments and the second amendments are:
    • the exclusion of employees employed by an employer than qualifies for JobKeeper;
    • the requirement for the employer to advise the employee in writing that the employer consents to arbitration;
    • the requirement that a direction in relation to hours of work can only be given in certain circumstances (the employee cannot be usefully employed due to COVID-19, the direction is reasonable and given in writing); and
    • the inclusion of some additional safeguards around annual leave.
    • The new amendments will operate from 1 July 2020 to 27 September 2020.

The FWC has inserted temporary pandemic leave into awards

  • The FWC has temporarily amended 99 modern awards to give an estimated 4.4 million workers access to two weeks' unpaid "pandemic leave" and annual leave at half pay. The FWC has extended the entitlement to unpaid pandemic leave and annual leave at half pay in 63 awards until 30 September 2020.
  • On 14 April 2020, the Western Australian Industrial Relations Commission issued a general order enabling employees to take two weeks' unpaid pandemic leave, annual leave at half pay and annual leave in advance. The order will operate until 31 July 2020 and may be extended.
  • The FWC is also considering amending awards to grant paid pandemic leave to health care workers vulnerable to contracting COVID-19. Employers have indicated an intention to oppose the union bid for paid leave.

Victorian Government $1,500 payment to eligible workers that are required to self-isolate

  • On 20 June 2020, the Victorian Government announced that it would implement a one-off $1,500 payment to workers who have no paid sick leave and who are required to self-isolate. All COVID-19 cases and close contacts are interviewed by the Public Health Case and Contact Tracing team and automatically screened for eligibility for the one-off payment. The payment is for permanent, casual, part-time, fixed term, and self-employed workers who are not entitled to any paid leave or other income support.

NSW Local Government (COVID-19) Splinter (Interim) Award 2020

  • A temporary 12-month "splinter award" has been approved by the NSW Industrial Relations Commission to protect local government workers who are unable to perform their usual roles during the COVID-19 pandemic.
  • Councils will be required to look for other suitable work for employees who are unable to perform their usual jobs owing to mandatory closures or other changes. If alternate work is not available, workers will be paid a weekly job retention allowance of $858.20 for a period of 13 weeks.
  • The award also gives employees up to four weeks of special leave at their normal pay rate to cover any period where no work can be provided, including if an employee is required to self-isolate.

Legal Services Award

  • Several law firms applied to amend the Legal Services Award to mirror the changes recently made to the Clerks Award. The change would allow employers to give the ASU or other employee representatives 24 hours' notice of a vote to temporarily reduce ordinary working hours by up to 25%. Employers would also be able to direct employees to take leave with one week's notice, as long as employees retain at least two weeks leave.
  • A further amendment sought to reduce the minimum engagement for part-time and casual employees working from home to two hours and allowing employees to spread ordinary weekly hours between 6am and 11pm, instead of 7am to 6.30pm.
  • The application was withdrawn on 21 May 2020 after unions objected and alleged a failure to properly consult.

Educational Services (Schools) General Staff Award

  • The Educational Services (Schools) General Staff Award has been amended to permit employers to direct non-teaching staff to cut hours by up to 25% and to direct workers to perform any duties within their skills and competency provided they are safe and the employee is appropriately licensed and qualified. The change will affect staff such as bus drivers, maintenance workers and other support staff that are experiencing significantly reduced workload as a result of the pandemic.

Social, Community, Home Care and Disability Services Industry Award 2010

  • Unions are applying to amend the Social, Community, Home Care and Disability Services Industry Award 2010 to introduce a temporary hourly allowance of $4.94 an hour for disability workers to compensate them for continuing to work during the pandemic. In a statement on 5 May 2020, the FWC Full Bench asked the Federal Government whether it would increase funding to compensate employers if the allowance application is granted.

Fast Food Industry Award 2010

  • The Fast Food Industry Award 2010 has been amended to allow for flexible part-time employment with reduced working hours and no overtime pay. Additionally, workers are unable to unreasonably refuse requests to use accrued annual leave as long as they retain a balance of two weeks' annual leave. Employers are able to require workers to take paid or unpaid annual leave during close downs to all or part of their operations due to the pandemic. Employee safeguards in the amendment include the right to have disputes arbitrated and the requirement that any extra hours be genuinely agreed without coercion or duress.

Vehicle Manufacturing, Repair, Services and Retail Award 2020

  • On 11 May 2020, the FWC granted an application to amend the Vehicle Manufacturing, Repair, Services and Retail Award 2020 to allow employers to temporarily reduce the hours of work for full-time and part-time employees who do not qualify for JobKeeper. The amendments were due to expire on 30 June 2020, however the FWC extended their operation until 31 July 2020 with the additional limitation that the reduction in hours flexibility can only be used by those businesses which have already utilised it and implemented a temporary reduction in hours prior to 30 June 2020.

    Building and Construction General On-Site Award 2010, Joinery and Building Trades Award 2010 and the Mobile Crane Hiring Award 2010

  • Construction employer groups MBA, HIA and AI Group have applied to amend the Building and Construction General On-Site Award 2010, Joinery and Building Trades Award 2010 and the Mobile Crane Hiring Award 2010. The application seeks to temporarily change the awards to remove the requirement to pay overtime for hours worked between 6am and 2pm on Saturdays and to reduce the minimum casual engagement from four hours to two hours. Additionally, the changes would allow industry employers to direct employees to take any accrued annual leave in excess of two weeks, while employees could opt to spread out paid annual leave by taking it at half pay. The application has been opposed by unions and the matter has been listed for hearing before the FWC Full Bench on 8 July and 9 July 2020.

Issue

  • The Federal Government has suspended its consultations over introducing criminal penalties for the worst cases of underpayment.
  • Many large businesses recently disclosed that they had made significant underpayments, and proposed new checks and balances to ensure this does not happen, have not yet been established.
  • In the chaos of trying to hire new employees and redeploy others management of historical underpayments could fall through the cracks. 

Things to know

  • While the introduction of a harsher penalty regime is on hold this does not mean that the FWO will not continue with prosecutions, including prosecutions for employers who are found to take advantage of employees as a consequence of COVID-19.
  • While flexibilities are being granted by the FWC in terms of award applications this should be in place in advance to avoid underpayment or award breach claims. Alternatively negotiations should be advanced with unions to map a plan in relation to terms and condition changes.
  • Seek advice when drafting and reviewing contracts to amend terms to manage the COVID-19 pandemic.
  • Increase the payroll checks and balances to ensure employees are not being underpaid. 

  • On 19 June 2020, the FWC issued its decision on the Annual Wage Review 2019-20. The FWC decided to increase the national minimum wage and the modern award minimum wage by 1.75%. The national minimum wage is now $753.80 per week or $19.84 per hour. The hourly rate has been calculated by dividing the weekly rate by 38, on the basis of the 38-hour week for a full-time employee. This constitutes an increase of $13.00 per week to the weekly rate or 35 cents per hour to the hourly rate.
  • >In light of the varying impact of COVID-19 on different industries, the FWC determined different operative dates for the modern award wage increase for different groups of awards as follows:
    • Group 1 Awards will increase on 1 July 2020
    • Group 2 Awards will increase on 1 November 2020
    • Group 3 Awards will increase on 1 February 2021
  • The FWC found that the modern awards in Group 1 cover industries which have been less affected by the pandemic than those in Groups 2 and 3, and includes modern awards applying to "frontline" health workers, teachers and childcare workers and employees engaged in other essential services, who have continued working throughout the pandemic. The FWC estimated that about 25% of non-managerial award-reliant employees are covered by the awards in Group 1, while about 40% are covered by the modern awards in Group 2 and about 35% are covered by the modern awards in Group 3.

Issue

  • Enterprise Agreement employers may not be able to access some of the flexibilities and benefits now available from specific changes to Modern Awards. As a consequence, the FWC is considering applications to vary enterprise agreements in response to COVID-19 to determine whether the "exceptional circumstance" provisions apply.

Things to know

  • The FWC has stated that the pandemic and the responses from Federal and State governments have had a substantial impact on businesses and their employees through a range of restrictions. Some parties are considering varying their enterprise agreements to introduce additional flexibility to help address the impact of the pandemic.
  • Any variation to an enterprise agreement must be approved by the majority of employees who vote for the variation. Employees must be given access to a copy of the variation for 7 days before they vote. The application to approve the variation must be lodged with the FWC within 14 days of the vote. The variation commences when it is approved by the Commission.
  • An enterprise agreement will be approved if it passes the "better off overall test", or, because of exceptional circumstances, approval of the agreement would not be contrary to the public interest. An example of a case in which the FWC may be satisfied exceptional circumstances exist is where the agreement is part of a reasonable strategy to deal with a short-term crisis in, and to assist in the revival of, the enterprise of an employer covered by the agreement.
  • On 2 April 2020, the FWC approved an application by an electrical construction business, CVSG Electrical, to cut a 3% wage rise payable under an enterprise agreement. The FWC accepted the employer's evidence that its business was suffering from serious economic pressures associated with the pandemic such as the weakening of the Australian dollar, supply chain constraints from China and an expected 50% drop in tenders over the next three to six months. The FWC was satisfied that the "better off overall test" was satisfied because the terms and conditions of the amended agreement were overall more beneficial than the award. The FWC rejected arguments by the Communications Electrical Plumbing Union that the employees did not genuinely agree to the variation because the vote occurred before the Federal Government announced its JobKeeper initiative.
  • The "exceptional circumstances" test remains untested in relation to a variation to an enterprise agreement in response to COVID-19. However, it will be important to know your enterprise agreement to determine what, if any, short term amendments may assist and be able to demonstrate to the FWC that the "exceptional circumstances" test can be made out including the direct impact of the COVID-19 pandemic on the business and support any such submissions with evidence of the impact.
  • On 16 April 2020, the Federal Government temporarily amended the Fair Work Regulations by reducing the notice period that employers are required to give employees of proposed changes to enterprise agreements from seven days to a minimum one day.This amendment was repealed on 13 June 2020. The regulation allowing the shorter notice period continued to apply to applications where the notice period commenced on and between 17 April 2020 and 12 June 2020 only. Notice periods that started on or after 13 June 2020 must again be seven calendar days. A review conducted by the Attorney-General's Department found that the regulation was only used 23 times and about two-thirds of the agreements with reduced notice periods still allowed three or more days' notice. The review did not identify any cases of misuse by employers. The CFMMEU had filed a challenge to the regulation amendment, but the challenge was discontinued following the withdrawal of the regulation by Parliament.
  • With universities excluded from JobKeeper payments, the NTEU negotiated a "framework agreement" COVID-19 response for universities aimed at preserving jobs by asking workers in the sector to accept 12-month pay freezes or cuts of up to 15%. However at least 17 universities rejected the framework agreement.
  • Separately, Monash, La Trobe and the University of WA have made commitments not to implement forced redundancies or stand-downs without pay in return for temporary cost savings measures. Western Sydney University has applied to vary its academic staff agreement to require full-time, part-time and many fixed term employees to purchase between four and eight days of extra leave over six months.
  • Meanwhile, the FWC has stopped Deakin University from implementing hundreds of redundancies until the resolution of a dispute over whether Deakin's enterprise agreement requires it to consult at an institution-wide level with the NTEU before reaching a final decision.

Issue

  • The FWC may reduce, on application by an employer, redundancy payments employers must make to workers in certain circumstances. The FWC has made two contrasting decisions on the issue so far.

Things to know

  • In the case of Mason Architectural Joinery Pty Ltd, the FWC approved the employer's application to reduce a former worker's redundancy entitlement from seven weeks' pay to one week's pay, taking into account the "significant financial strain" experienced by the employer.
  • The Commissioner accepted evidence that the worker had been paid three weeks' notice and quickly found another job on better hourly rates. Furthermore, the employer could not afford to pay the full redundancy entitlement.
  • On the other hand, in the case of Worthington Industries, the FWC rejected an employer's application to reduce three full-time workers' redundancy payouts from four weeks' pay to one week's pay, despite a projected decline in sales and foreshadowed cash flow issues. The application was rejected in light of a statement by Worthington Industries' HR manager that the company had both the means to pay the full amount of the redundancy entitlements and the "money in the bank to do so".
  • Similarly, in the case of Print Logistics (Aust) Pty Ltd, the FWC refused the employer's request to reduce a worker's eight-week redundancy payout by 80%. The FWC acknowledged that the company's financial position had declined rapidly due to the effects of the pandemic, but noted that it had $120,000 cash in the bank. While relieving the company of the obligation to pay the full redundancy amount would provide some small assistance, the Commissioner did not accept that Print Logistics could not pay. It is not sufficient to demonstrate that it is merely beneficial to reduce the amount of the redundancy payout.
  • The circumstances of the business will be relevant to this consideration and it will be weighed against the impact on the employee of any decision to reduce the entitlement.

Workforce changes and regulatory response

Changing or scaling down operations in response

Issue

  • Reduced demand may mean some businesses may not require all employees to be present as regularly as usual.
  • Some companies may need to vary their operations in response to the spread of COVID-19.
  • While businesses are struggling now and are needing to stand down or make some positions redundant, businesses need to be cautious they do not eliminate institutional memory or ostracise employees to the extent that the business is unable to reopen in its full capacity once the quarantine restrictions lift. If employers stand down or make too many positions redundant they will emerge from the crisis with no employees to perform certain tasks or who know how the business operates. 

Possible solutions / things to be aware of

  • Check the applicable industrial instrument (eg. enterprise agreement, award or contract) that applies to the employee and see if you can vary hours and/or rosters before making any decisions in relation to termination, should stand down or redundancy.
  • If an employer is looking to change an employee's regular roster or ordinary hours under an award or enterprise agreement the employer needs to:
  • provide information about the proposed changes;
  • consult with employees in relation to the change - invite employees to give their views about the impact of the change (eg. impact on family caring arrangements); and
  • consider employees' views about the impact of the change.
  • Consider alternative tasks an employee may be able to take on as reducing a permanent employee’s ordinary hours usually requires the employee’s agreement.
  • An employer and employee may agree to an "individual flexibility arrangement" (IFA), which allows them to vary terms in their award or enterprise agreement relating to when work is performed.
  • IFAs only apply to an individual employee, must be in writing, and are subject to a number of safeguards to ensure the agreement has been genuinely made and the employee is left better off overall. However, when assessing whether an IFA means an employee is better off non-economic factors can be taken into consideration.
  • This approach is not without risk and if done without consultation and consent may give rise to redundancies. Take advice prior to implementation.
  • Place a freeze on new hires.
  • While some smaller businesses may be so financial strained that they are compelled to reduce the number of employees it is important to seek legal advice before making any employees redundant as any redundancies may be highly scrutinised by the Fair Work Commission. It will be important to evidence the selection process undertaken, and implementation of redundancies is also likely to impact the ability to upscale the business in a short time frame. 
  • The FWC's New Approaches program is working with the disability sector and the child welfare sector, "among others", to help them to make "significant workplace changes, very quickly, in response to the pandemic".
  • The Association of Children’s Welfare Agencies and the Australian Services Union have, with the assistance of the FWC's New Approaches program, developed model individual flexibility agreements (IFAs) and associated guidelines for use by child welfare agencies and their employees in New South Wales, using an interest-based problem solving approach. The draft IFAs and associated guidelines provide an approach to using 12 and 24 hours shifts that are not ordinarily available under the relevant award.

JobMaker – reform of systemic problems

Issue

  • On 26 May 2020, the Commonwealth Government announced the immediate creation of five working groups (each aligning with an identified systemic problem) who will work through to September in order to produce a "JobMaker" package. The aim is to maximise the opportunity for a genuine course of negotiation, compromise and co-operation in order to facilitate meaningful reform, which might be legislation, budget measures or policy changes.

Things to know / think about

  • The five working groups will be capped at 15 members each and are in the areas of:
    • Award simplification;
    • Enterprise agreement making;
    • Casuals and fixed-term employees;
    • Compliance and enforcement; and
    • Greenfields agreements for new enterprises.
  • Industrial Relations Minister Christian Porter will chair each of the working groups and has appointed Tim Marney (Principal of Nous Group) to act as deputy chair.
  • The IR groups are to meet 5 times a fortnight throughout July and into August, with the process expecting to wind up early September.
  • The aim is to produce a "practical reform" of the IR system, which will include major changes to skills and training, to help grow jobs as the economy emerges from the COVID-19 pandemic.
  • The groups comprise employer and union representatives, as well as individuals chosen based on their demonstrated experience and expertise. The Prime Minister announced that the working groups would also include representatives from small, rural and regional backgrounds, multicultural communities, women and families.
  • The Commonwealth Government announced, as a gesture of good faith, that it would not pursue a further vote in the Senate on the Ensuring Integrity Bill, which would make it easier to disqualify union officials and unions that break the law, but also raised the prospect of further measures to crack down on unlawful behaviour on construction sites.
  • The ACTU stated that it will head into the Morrison Government's JobMaker policy discussions with the aim of reducing insecure employment and extending paid pandemic leave.
  • The Industrial Relations Minister has set a target of 1 February 2021 for key IR changes developed by the working groups to take effect. This will coincide with the minimum wage rise taking effect for the sectors covered by the "Group 3 Awards" that have been most affected by the coronavirus crisis (see rise to minimum wage).

Assistance / Hardship Payments and tax treatment

Disclaimer: This note provides some general observations with respect to the taxation of hardship payments having regard to the ATO’s current messaging in response to the COVID-19 crisis. You should seek specialist tax law advice before making any decision as the ATO’s administrative guidance is not legally binding, may evolve or change over time and the law relating to the taxation of employee payments and benefits is complex.

Assistance Payments generally

A hardship payment (more commonly described by the ATO as an Assistance Payment) is a form of payment an employer makes to an employee during an emergency. The purpose of an Assistance Payment is to provide extra help to employees in emergency circumstances, in addition to their normal employee entitlements.

There is nothing that prohibits an employer making a one-off Assistance Payment to an employee. The Assistance Payment contemplated by the ATO is one that is made in addition to payments ordinarily received as remuneration for services of an employee, such as salary and employee entitlements. It is a payment made in respect of an “emergency”, which is defined (at least for fringe benefits tax purposes) to mean an emergency involving a natural disaster, an armed conflict, a civil disturbance, an accident, a serious illness, or any similar matter (Fringe Benefits Tax Assessment Act 1986, section 136(1)). The ATO has confirmed its view that the current COVID-19 situation is an “emergency”.

Any Assistance Payment is an entirely discretionary matter for the business to consider. There is no requirement for the business to do this.

From an employee's perspective, is an Assistance Payment assessable income?

No – a genuine Assistance Payment is a one-off non-wage benefit. The Assistance Payment is not related to any services / work that the employee is undertaking (ie. it is not a form of income, such as salary or wages).

Salary or wages of an employee are usually considered to be ordinary income of the employee. As such, they form part of an employee's assessable income and have to be reported in the employee’s income tax return. An individual’s assessable income impacts the calculation of his or her “taxable income” which is the amount on which income tax at the marginal tax rates is imposed and payable.

An Assistance Payment from an employer which is one-off and other non-periodic emergency relief payments do not take on the usual characteristics of ordinary income.

Payments which are regular, periodical, ongoing or which are calculated by reference to periodical rates may be characterised as assessable income.

From the employer’s perspective, do I have to withhold from Assistance Payments and will payments be deductible?

Employers should seek advice about their withholding obligations. Payments may be made to employees with the intention of providing assistance in these emergency circumstances, and yet still trigger the employer’s obligation to withhold and remit to the ATO under the PAYG withholding laws. For example, payments in respect of an incapacity to work (either of the employee or someone else), where the payment is also calculated by reference to a periodical rate may trigger withholding obligations.

An employer who gives emergency assistance to an employee will ordinarily be entitled to claim an income tax deduction for the amount of the assistance provided as a business expense.

Does an employer need to make superannuation guarantee contributions with respect to an Assistance Payment?

No – the Assistance Payment does not attract a requirement to pay superannuation guarantee contributions as it is not associated with ordinary time earnings. The ATO has not yet given a public view on this point but Clayton Utz has asked the ATO to do so to support employers wanting to stretch Assistance Payments further.

"Ordinary time earnings" broadly means an employee's earnings in respect of ordinary hours of work (other than payments relating to termination of employment) and includes earnings consisting of over-award payments, shift loadings or commissions, capped at the maximum contribution base).

Is an Assistance Payment subject to Fringe Benefit Tax?

Generally, employers will be exempt from fringe benefits tax (FBT) on certain non-cash benefits provided by employers to their employees in an emergency situation.

In the context of the current COVID-19 crisis, the ATO has acknowledged that this exemption will apply to the value of goods or services provided to assist employees who are sick or is at risk of becoming sick and it is provided for their immediate relief. The ATO has also confirmed it will also accept that the exemption applies to any assistance provided to an employee who has been located in a high-risk area and has been relocated or required to self-isolate.

Exemptions from FBT include certain benefits provided to an employee in an emergency situation. For the purposes of this exemption, an emergency is a natural disaster, an armed conflict, a civil disturbance, an accident, a serious illness, or any similar matter. The ATO accepts this includes the current COVID-19 crisis.

The ATO’s view on the FBT treatment of non-cash emergency assistance provided to employees more generally are that the following types of benefits will be exempt:

  • first aid or other emergency health care1
  • emergency:
    • meals;
    • food supplies;
    • clothing;
    • accommodation;
    • transport;
    • household goods.
  • temporary repairs;
  • any similar assistance.

Practical guidance

Employers should seek advice in relation to proposed employee Assistance Payments and other employee support non-cash benefits during the COVID-19 crisis.

The ATO can also provide non-binding guidance to employers and employees including, if necessary, on an urgent basis.

The exemption only applies to health care treatment if the health care treatment is provided by an employee of the employer (or related company), on the employer’s premises (or premises of a related company), by a company doctor at an accident site or at, or near an employee’s worksite. It does not apply to ongoing medical and hospital bills (section 58N of the Fringe Benefits Tax Assessment Act 1986).

FIFO workers

As of Thursday 26 March 2020 the Queensland Government implemented entry restrictions into Queensland in order to slow the spread of COVID-19 and continue to flatten the curve. Fly in fly out (FIFO) workers were previously exempted. However, on 31 March 2020 new tougher restrictions were announced for FIFO workers from interstate who will now be required to self-quarantine for 14 days on arrival in Queensland unless considered a "critical resources sector employee".

FIFO workers from interstate or within Queensland in the energy and resources sector travelling to a worksite or work camp are also under an additional obligation to provide the following information upon arrival:

  • the name of their employer;
  • evidence that they are a FIFO worker;
  • evidence that they are entering Queensland to go directly to work;
  • evidence of the location of the worksite or work camp; and
  • evidence that they are a critical resources sector employee.

New restrictions on FIFO workers

On Saturday 4 April 2020 at 11:59pm, and until the end of the declared public health emergency, only "critical resource sector employees" will be allowed to fly into Queensland from another state or territory for FIFO work and not have to undergo quarantine measures.

A "critical resources sector employee" means a person that is appointed under the Coal Mining Safety and Health Act 1999, the Mining and Quarrying Safety and Health Act 1999 or the Petroleum and Gas (Production and Safety) Act 2004 and holds an essential position listed on the Queensland Health website or a person that has been approved by the Chief Health Officer as a critical resource sector employee.

Unless FIFO employees are on the Queensland Health list or approved by the Chief Health Officer, they will not be a critical resources sector employee.

The Queensland Health directive also states that critical employees are those "critical to the ongoing operation of a resource activity or resource supply chain". This would in our view extend beyond the statutory positions listed to include persons such as mine managers, mechanical and electrical engineering managers and critical workers and this may assist resource companies in their applications to the Chief Health Officer. Please note that Queensland resource employees currently working and living in Queensland are automatically deemed a critical resource sector employee.

Quarantine for FIFO workers

Even where the FIFO worker is an exempt person, if they have been to any of the designated hotspots or overseas within the last 14 days then that person must self-quarantine. These hotspots will be available on the Queensland Health Website when published by the Chief Health Officer. Employers in the resources sector should keep an eye on what areas are deemed a hotspot so this can be managed.

Health care plan

Shortly all Queensland resource companies will need to provide a health plan for all FIFO workers whether that FIFO worker comes from interstate or within Queensland. This was highlighted by the Honourable Dr Anthony Lynham, Minister for Natural Resources, Mines and Energy, who stated in a media release on 31 March 2020 "All resources projects in Queensland are providing a COVID plan for their interstate workers to Queensland Health, and have been requested to prepare plans for their intrastate workers". We therefore recommend all resource companies in Queensland start preparing health plans for all resources projects (whether they have interstate FIFO employees or not).

A company that provides FIFO workers outside of Queensland is not required to comply with the Queensland Chief Health Officer's health plan. However, the FIFO worker may be subject to further regulations in the other states or territory. (We have set out a brief table below of the various quarantine restrictions on FIFO workers travelling in other States and Territories).

Quarantine requirements in other States and Territories

FIFO workers information for COVID-19 employment chapter

Planning a return to the workplace

The Government announced on Friday 8 May 2020 Australia's three-step Roadmap to a COVIDSafe Australia. Since then, the Government has released an updated framework. Different States have had to introduce different measures as a result of the current level of risk in each State with some States having a significant relaxation of restrictions and unfortunately for some significantly increased impacts. Before coming back to the workplace, it is crucial for businesses to ensure they are ready to deal with the challenges that inevitably lie ahead, as well as consider their duties under relevant Work Health and Safety (WHS) legislation and act consistently with the latest health advice.

Businesses that continued to operate at the workplace/office throughout the pandemic will also need to monitor and review their current WHS systems and control measures to ensure they remain effective and align with the most up-to-date health information and guidance.

As per the national principles agreed by Australian Governments, businesses navigating the return to work process must actively control the risk against a spread of COVID-19 at the workplace.They should do so by taking a risk based approach and considering the application of the hierarchy of controls to ensure the health and safety of workers and others where relevant, so far as reasonably practicable. They also need to ensure they have in place a COVID-19 Plan.

What are the main risks facing workers in relation to COVID-19 and the return to work process?

It goes without saying that the risk of contracting COVID-19 itself must be managed in any return to the workplace.

Other than Victoria, and to a lesser extent NSW, the Government is allowing many businesses to reopen and allow people to return to work, if it if safe to do so. Although this remains the approach at the date of this publication, the current situation in Victoria and NSW will need to be watched closely. Employers should be planning a gradual return to the workplace and monitor this approach closely. Employers and workers should work together and act consistently with the advice from the health authorities.

It will be important for employers to take a risk-based approach and to implement suitable control measures that are appropriate for their workplace that seek to reduce the risk of workers contracting COVID-19. A business' risks at the workplace will have changed as a result of COVID-19 and it will need to be prepared to deal with and respond to these new risks. This is a matter that needs to be undertaken by each business.

Employers will also need to implement a COVIDSafe Plan to meet their obligations.

Mental health and COVID-19

Another major risk facing workers is the risk to mental health as a result of COVID-19. Self-isolation and the extreme economic impact of COVID-19, not only in Australia but around the world, has taken its toll on people and will continue to do so for the foreseeable future. The longer this continues, the greater the risk this will be.

Control measures implemented by employers should not just focus therefore on the physical risks of contracting COVID-19, but will also need to consider ways to engage with workers to alleviate the risks of negative mental health.

See Mental Health and COVID-19 for more information.

What steps should employers take in the management of the return to the workplace process?

  1. Undertake a risk assessment (this is discussed further below);
  2. Carefully consider what controls can be implemented to manage and control the risks identified in the risk assessment;
  3. Consider which employees are critical/essential to return to the workplace first;

    (Employers should consider options such as a staggered return to work, alternating teams and office stations and having staggered start and finish times);

  4. Consider the risks facing those employees returning to the workplace;
  5. As restrictions continue to ease, consider arrangements for transitioning employees from remote working back to the workplace;
  6. Ensure they are staying up to date with the latest directives from your public health authority and guidance from regulators (and that the business is continuing to plan and adapt and are prepared to return to working from home arrangements if required); and
  7. Continue to review and amend their COVID-19 plans and ensure that the controls that have been implemented are managing the risks identified.

How can employers ensure they are meeting their WHS obligations?

Employers will need to take a risk based approach in planning their return to work process. They should consider the application of the hierarchy of controls to ensure the health and safety of workers where relevant. What is reasonably practicable will vary from business to business. Any controls implemented will also need to be continually reviewed to ensure they remain effective to manage the risks.

The Australian Health Protection Principal Committee has published a useful diagram outlining control measures for preventing the spread of COVID-19 utilising the hierarchy of controls.

Image showing Hierachy of controls for COVID-19

The Safe Work Australia COVID-19 hub also provides specific guidance on managing WHS risks arising from COVID-19.

While businesses should take into account their particular circumstances control measures they may choose to consider include the following which have been summarised from various workplace measures recommended by the various WHS regulators:

  • Implementing controls that promote social distancing, including:
    • Creating separate walkways through workplaces;
    • Limiting the number of people in meeting rooms, lunch or other common spaces;
    • Having posters and signage to remind people to maintain the currently recommended 1.5m distance apart;
    • Avoiding sharing desks, phones, offices and other work tools; and
    • Avoiding face-to-face meetings where possible.
  • Implement controls to reduce direct contact between workers, customers, clients, suppliers and other people in the workplace, including:
    • Creating barriers and screens;
    • Modifying shifts and rosters (for example by considering the issue of bottlenecks in building lobbies and elevators);
    • Actively supporting flexible work arrangements; and
    • Continuing to support working from home.
  • Implement controls to reduce environmental exposure, including:
    • Inspecting and reviewing air conditioning and ventilation systems;
    • Increasing cleaning and disinfection of high traffic areas or shared surfaces;
    • Provide cleaning products and instruction for cleaning workspaces;
    • Provide instruction and amenities for personal hygiene and infection control.
  • Implement controls to reduce the risk of those persons who may have been infected with COVID -19 coming to work:
    • Requesting employees to undergo temperature testing prior to entry to the workplace (for more information see COVID-19: Can I temperature check my workers?);
    • Requesting employees who are sick with a fever, cough, sore throat, and shortness of breath symptoms not to attend the workplace;
    • Training your workers on how to recognise the symptoms of COVID-19 and to not attend work when unwell.
  • Implement and promote good hygiene practices amongst workers
    • Provide ample soap and disposable hand towels
    • Provide access to hand sanitiser
    • Provide tissues and appropriate means of disposal
  • Use personal protective equipment (PPE) where necessary and provide workers with training for its use noting that what PPE may be required should be carefully assessed based on the workplace and the duties the workers are undertaking, as well as any current Government directives;
  • Manage psycho-social risks for workers and monitor their mental health;
  • Consider the risks associated with your workers travelling to and from work.
  • Consult with your workers and communicate, train and supervise workers on workplace measures to address COVID-19;
  • Consider industry specific advice for higher risk workplaces or industries (see SafeWork website).

Do employers need to undertake a risk assessment for the return to work process?

Safe Work Australia has advised that it is critical that businesses undertake a risk assessment on the risks of COVID-19 and manage these risks accordingly. The risk assessment should have regard to the hierarchy of controls.

Conducting a risk assessment will enable the employer to identify both physical and psychosocial risks of the return to work process. During this process it will be important for employers to consult with employees. See Safe Work Australia Key considerations for undertaking a risk assessment -–COVID-19 for more information.

Once the risk assessment is complete, employers will need to consider what controls are required to address the risks identified by the risk assessment and implement these. See the discussion above in "How can employers ensure they are meeting their WHS obligations once employees begin returning to work?".

What should employers do if there is a case of COVID-19 in the workplace?

Even though the instances of COVID-19 in Australia have been decreasing, further outbreaks in communities and workplaces are likely once workers start returning to the workplace.

Employers are not expected to diagnose workers as having COVID-19 and there are both employment and privacy related implications around this. However, employers do have a duty to minimise the risk to workers and others in the workplace of being exposed to COVID-19 so far as reasonably practicable. Guidance from Safe Work Australia indicates that if you are concerned that someone has COVID-19, employers should:

  1. Isolate the person;
  2. Seek advice and assess the risks;
  3. Organise appropriate transport to have the person taken home;
  4. Clean and disinfect the office;
  5. Identify and tell close contacts of the person (while carefully considering privacy obligations); and
  6. Review risk management controls;

For more information in relation to the above steps, see COVID-19 in your workplace.

Employers should ensure that their COVID-19 Plan addressed the scenario of what action they will take if someone becomes ill with suspected COVID-19 in the workplace. It should cover:

  • how you will separate the ill person from others in the workplace, how to limit the number of persons in contact with them and the process for alerting local health authorities;
  • how the business will ensure others are not put at risk (for example this could include considering whether or not the business needs to close for a period to allow for cleaning); and
  • how to identify at risk workers (eg. people who have diabetes, heart and lung disease, those above 65 years of age, those living with vulnerable people, those who have returned from overseas and other categories of vulnerable workers identified by the public health authorities), and how best to support them.
  • For more information see Advice for people at risk of coronavirus.