Work health and safety
- 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.
- Continue to monitor the World Health Organisation (WHO) and Department of Health (DoH) websites for updates and guidelines.
- Review advice released by SafeWork Australia, including:
- 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 has implemented four measures to ensure a safe transition back to work:
- The Federal Government's COVIDSafe 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 Federal Government has made it an offence under section 94H of the Privacy Act 1988 to require another person to download the COVIDSafe App.
- As part of its COVID-19 response, the Federal Government has also committed hundreds of millions of dollars in its 2020-2021 budget to, amongst other things:
- assist the detection of COVID-19 in asymptomatic workers;
- maintain the paid pandemic leave scheme;
- increase access to PPE;
- extend Medicare coverage of processes for detecting COVID-19; and
- expedite the resolution of workplace disputes.
- On 28 July 2020, the Victorian Occupational Health and Safety (COVID-19 Incident Notification) Regulations 2020 commenced and will apply for 12 months. The regulations require employers to notify WorkSafe Victoria immediately when they become aware that an employee, an independent contractor or an employee of an independent contractor has received a confirmed COVID-19 diagnosis and has attended the relevant workplace within the infectious period (14 days prior to the onset of COVID-19 symptoms until the date on which the person receives a clearance from isolation). Breach of this duty could lead to maximum penalties of 1,200 penalty units ($198,264) for body corporates and 240 penalty units ($39,652) for individuals.
- Since 5 August 2020, workplaces in Melbourne were required to close unless:
- Melbourne employers in industries allowed to continue operating under the current restrictions must enact a safety plan and comply with the Permitted Worker Scheme. The scheme involves providing a Permitted Worker Permit to employees required to attend a work site, and these employees carrying their permits when travelling to and from work. Employers that issue worker permits to ineligible employees or otherwise breach the scheme's requirements could face on-the-spot fines of $9,913, or court-imposed penalties up to $99,132. Workers who contravene the scheme (eg. by failing to carry their permit while travelling to work) could be fined $1,652 on the spot or up to $19,826 in court.
- On 2 September 2020, the Victorian Government has passed amendments to the Public Health and Wellbeing Act 2008, extending the current state of emergency for an additional 6 months. This will extend a number of "key protections" against the COVID-19 pandemic including: requirements for people to wear face masks when outside their homes and at workplaces; requirements for workplaces to have COVIDSafe Plans; restrictions preventing employers from directing workers to attend the workplace unless it is not reasonably practicable for them to work from home or remotely; and powers to direct people with COVID-19 to isolate.
- Under the Occupational Health and Safety Act (Vic), WorkSafe inspectors in Victoria can issue businesses with an improvement and prohibition notice, or a non-disturbance notice requiring an immediate stoppage or closure. Failing to comply with improvement and prohibition notices can lead to fines of $82,500 for individuals and $412,500 for body corporates. 68 improvement notices were issued to workplaces between late July and late August.
- On 17 September 2020, the COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020 was introduced to Victoria's Parliament to extend a range of temporary pandemic-related measures made by the previous emergency measures Bill (scheduled to expire next month). This Bill, among other things, amends sections 112 (power to issue prohibition notice) and 120 (power to give directions) of the Occupational Health and Safety Act (Vic) to provide "failure to comply with a direction relating to the COVID-19 pandemic given under section 200(1)(d) of the Public Health and Wellbeing Act 2008 is taken to be an activity that involves an immediate risk to the health or safety of a person." The safety changes will give greater power to WorkSafe inspectors by enabling them to issue prohibition notices in response to activities or processes that breach pandemic restrictions or controls. The health-related amendments are set to remain in place until 26 April 2021.
- On 22 November 2020 Victoria moved to "Last Step" restrictions, resulting in:
- no restrictions on reasons to leave home, however, restrictions on gatherings remain in place;
- a phased return to workplaces;
- contact and non-contact sport and recreation resuming for all ages, with limits applying to numbers of people;
- shops, recreational facilities, entertainment, hospitality and cultural venues opening, although restrictions remain. These include operating with a COVIDSafe Plan, density limits (the number of people allowed in a venue depends on its size so that people can keep at least 1.5 metres distance apart), record keeping and cleaning; and
- face masks no longer being mandatory when outdoors, unless individuals are unable to stay further than 1.5 metres away from people they do not live with. Face masks must be worn indoors and individuals must continue to carry a face mask with them at all times.
- WorkSafe Victoria has said safety inspectors will be "out in force" to ensure employers meet their health and safety obligations as workplaces open across Victoria.
- 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.
- 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.
- 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.
On 20 November 2020, Western Australia introduced mandatory COVID testing of all security and cleaning staff at quarantine hotels run by the Western Australian Government every seven days. The new directions add an "extra layer of testing" and are based off lessons learnt from outbreaks in Victoria and South Australia.
- 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.
On 22 November 2020, the South Australian Government published a revised list of Directions that remain in effect following its mid-November lockdown after 18 new cases were reported on 16 November 2020. It has also added a "COVID Safe Check-In" feature to the "mySA GOV app" which is available for businesses and customers to use from 1 December 2020.
- 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.
- On 26 November 2020, Queensland introduced the COVID-19 Emergency Response and Other Legislation Amendment Bill 2020 into Queensland Parliament to provide urgent amendments to the legislative framework empowering Queensland’s COVID emergency measures regulations. Under the COVID-19 Emergency Response Act 2020, all emergency measures were to expire on 31 December 2020. The Bill would permit the emergency measures regulations to be extended in their operation until 30 April 2021, unless an earlier day is set by regulation.
- 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.
- 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:
- the current restrictions on weddings, funerals, fitness classes, beauty salons, arcades, play centres and other public spaces.
- restrictions on pubs, licensed clubs and hotels (excluding accommodation), places of worship, gyms, indoor sporting venues, cinemas and casinos (with number restrictions on restaurants and cafes).
- restrictions on border closures and the requirement to obtain appropriate border passes if travelling interstate. Refer to specific State and Territory sites for more information.
Travel / group interaction arrangements
- While travel restrictions have effectively ceased all international business travel for now, employers should continue to demonstrate a degree of caution before immediately resuming international business travel when restrictions are lifted. Employers will need to monitor international business travel on a case by case basis and have regard for the countries and individuals in question.
- In terms of interstate
work-related travel, once states lift their own travel restrictions this
should be carefully considered on a case by case basis and in light of any COVID-19 cases in your State or Territory and proposed destination and, at least initially,
businesses should where possible arrange a video / teleconference. Facilitate
the avoidance of public transport, especially during peak travel times (eg.
allow workers to arrive late or leave early to avoid rush hour and/or allow
workers to utilise spare carparks).
- Certain State and Territory Governments have eased restrictions on public gatherings for certain activities, although social distancing rules are still in effect (including the requirement for people to be 1.5 metres apart. Employers should continue to monitor any updates in this regard and ensure the monitor and differentiate between mandated requirements and guidance. See COVID-19: State and Territory Powers and Penalties.
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. If your workers are in Victoria, Tasmania or South Australia and are required to self-isolate after being tested for COVID-19, advise them to apply for the Government's pandemic leave disaster payment (for more information see section "Financial assistance available to employees").
- 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, however any requirements imposed must be reasonable:
- On 16 November 2020, the FWC found that an employer imposed "unattainable" medical-clearance requirements on an employee with COVID-19 symptoms. In awarding the employee 4 months' pay, the FWC rejected the employer's claim that the employee had abandoned her employment. The FWC heard the employer required the employee to have a COVID-19 test before she could return to work, however despite several attempts to take a COVID-19 test she did not meet the screening criteria for COVID-19 testing at the time and could not take a COVID-19 test. It was found the employer imposed the COVID-19 testing policy at a time when testing was "very limited", and on one occasion the employee had travelled more than 3 hours to try to satisfy the policy's requirements. In finding a reasonable person would not have formed the view the employee abandoned her employment, the FWC found the employee's dismissal was "harsh, unjust and unreasonable". (See Ah San v Shamrock Consultancy Pty Ltd  FWC 5364 (16 November 2020)).
- 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 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.
- 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.
- 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.
- Is temperature testing in the workplace an appropriate or adequate control measure for the COVID-19 virus?
- 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.
- 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.
- 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
- Balancing the obligations to workers' health with business demands, especially as restrictions are eased and potentially reimposed in some States or Territories.
- 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.
Ensuring, so far as reasonably practicable the health and safety of other persons.
- 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
- 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.
- If mandatory, ensure appropriate masks are worn by workers and this is considered at an enterprise level:
- WorkSafe Victoria has warned of the risk of severe or fatal injuries if loose-fitting face coverings become caught in rotating parts of power tools and equipment.
- WorkSafe recommends that bandanas, scarves etc. should not be worn where there is a risk of entanglement.
- Employers should ensure workers wear safe and suitable coverings.
- 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.
- More than 1 in 3 of the COVID-19 related workers' compensation claims lodged in Australia involve mental health issues. As Victoria's second wave of COVID-19 did not peak until August, it is expected the number of claims will be much higher than the 533 claims reported by Safe Work Australia on 31 July 2020.
- 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.
- 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.
Monitor sleep disorders
- The Australian Sleep Health Foundation has reported that the COVID-19 pandemic has caused unhealthy, fatigue-inducing sleeping habits in workers. It urges employers to take steps to maximise workplace alertness and safety, including by monitoring for sleep disorders.
- The Foundation has created a COVID-19 Resources page which includes a number of sleep tips and tricks, as well as providing the contact details of the COVID-19 Health Professionals National Disability Advisory Service, established on 7 July 2020.
- 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
- 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  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 /
- 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
- 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.
- In response to an increase in COVID-19 infections in healthcare staff in Victoria, Premier Daniel Andrews promised to fast-track workers' compensation claims made by healthcare workers who contract the virus. Claims will be assessed within an average of 48 hours.
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.
COVID-19 presumptions in WA
The Western Australian Parliament has passed an Act to amend the Workers' Compensation and Injury Management Act 1981 (WA), providing presumptive workers' compensation to specified classes of workers diagnosed with COVID-19 and easing constraints on damages claims. The amendments prioritise healthcare workers with COVID-19, ensuring these workers "will not be required to go through lengthy and costly claim investigations to prove they contracted COVID-19 at work" and obtain workers' compensation. The amendments also facilitate the electronic service of certain documents and removes the termination-day constraint on an injured worker's ability to pursue common law damages. The changes will be reviewed after five years.
- Company may decide to provide special leave or other
- 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
- 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
- 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
- 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 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
- 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.
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).
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.
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
- 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
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).
- JobKeeper Payment – see our JobKeeper FAQ and How-To Guide.
- Free child care services will be made available for parents who continue working during the pandemic.
- The Federal Government has implemented a $1500 lump sum "pandemic leave disaster payment" for Victorian and Tasmanian workers required to self-isolate after being tested for COVID-19. This payment replaces the Victorian Government's $1,500 COVID-19 Worker Support payment. Workers are eligible if they have used up all their sick leave entitlements, including any special pandemic leave, and are not receiving an income, JobKeeper payments or other forms of income support.
- The South Australian Government announced a similar scheme to the "pandemic leave disaster payment" on 26 August 2020, providing that workers required to quarantine would be eligible for a $1,500 payment. Eligible workers in an "identified COVID-19 cluster" will also have access to a $300 up-front payment for the isolation period between undergoing a COVID-19 test and receiving the result.
Some State and Territory Governments have also
announced economic stimulus packages which benefit both employers
- The New South Wales Government released
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
- $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
- support for tourism operators and hospitality providers;
- support to the agriculture and fishing industry, 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
- small and medium size businesses with payrolls of less
than $3 million will be able to defer any payroll tax until 1
- $500 million will be injected into the hardest hit
sectors including tourism, retail and entertainment; and
- commercial tenants can apply for rent relief.
- 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
- 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.
- JobKeeper has been extended from 28 September 2020 until 28 March 2021 through two separate extension periods:
- Extension 1: from 28 September 2020 to 3 January 2021
- Extension 2: from 4 January 2021 to 28 March 2021
- The rates of payment for the extension periods is dependent on whether employees are "tier 1" or "tier 2". The rates of payment will be stepped down across the two extension periods for each tier as set out on the ATO's website.
- Learn more about it in our FAQ and How-To Guide.
- 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
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
- 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).
- Distribute the burden of labour cost cuts among all workers rather than singling out individual employees.
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
- 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
- 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  FWC 7863. The case concerned the requirement to stop
flights while the affected aircraft underwent aircraft
maintenance. The FWC held that scheduled heavy maintenance
of aircraft was required for, planned and known by the employer.
In particular the FWC 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
ready, willing and able 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
- If a business ultimately decides to stand down employees (or continue/extend stand downs) as a necessary action, it must be viewed against the principle of fairness. The recent FWC decision of Kurt Stelzer v The Trustee for the Ideal Acrylics Unit Trust T/A Ideal Acrylics  FWC 4992 placed significant weight on fairness in respect to COVID-19 stand downs. The FWC noted that employers must balance their interest in reducing labour costs with their interest in maintaining employment relationships which may be reinstated once the economic effects of COVID-19 subside.
Situations where stand down does NOT apply
- Where an employer refuses to pay an employee in response
to the employee’s refusal to work (for safety reasons)
in accordance with the contract of employment.
- On 23 November 2020 the Fair Work Commission ordered an employer to pay its employees who refused to work after their colleague tested positive to COVID-19, up until the NSW Chief Medical Officer gave them the all clear to return to work. The FWC acknowledged that at the time of the cease work, knowledge of COVID-19 was limited and the general public including Hutchison workers were concerned with the serious health repercussions of contracting the illness. The Deputy President nonetheless found that the employees should have returned to work after a meeting was held with representatives of the CFMMEU, WHS committee members and the NSW Chief Medical Officer, as "reasonable concern of an imminent, immediate or impending serious risk could no longer be justified following receipt of advice." (See Construction, Forestry, Maritime, Mining and Energy Union v Sydney International Container Terminals Pty Ltd T/A Hutchison Ports Australia Pty Limited  FWC 4983 (23 November 2020)).
- 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
- 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
- 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
- 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  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. On 27 November 2020, the Union lost its appeal of the Qantas Sick Leave Case. Qantas maintained its position that because it has no work to be performed, it does not need to keep paying sick leave. The majority full Federal Court preferred Qantas' interpretation of the Fair Work Act, finding it a "more natural reading of the statutory language" than the Union's "strained" and "unjustified" position. The majority found that section 525(a) of the Fair Work Act deems an employee not to have been stood down during a period when they are on leave (paid or unpaid) that the employer has authorised. The stand down provisions provide "authority to an employer to be relieved of the requirement to make payments to employees during a period when the employees cannot usefully be employed…" While the Union has not confirmed any intention to appeal the decision, a strong dissenting judgment makes this a real possibility (see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited  FCAFC 205 (27 November 2020)).
- 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.
- More recently, the FWC has examined the operation of the stand down provision in relation to a stoppage of work due to economic impacts of COVID-19. In Kurt Stelzer v The Trustee for the Ideal Acrylics Unit Trust T/A Ideal Acrylics  FWC 4992, the FWC found that to meet the preconditions of "stoppage of work", the work must have stopped beyond a "mere downturn in business activity". In this case, the business activity performed by Stelzer continued after he was stood down. Although Ideal Acrylics argued that, the company director cut labour costs by continuing fabricating work on his old machine, the FWC found that Stelzer could have continued his work on reduced hours. The FWC was also not satisfied that Stezler was selected to carry almost the whole burden of stand down on an objectively verifiable basis. The FWC said that the reduction of labour should have been apportioned between Stezler and other manufacturing employees performing work that he was also capable of performing.
- In Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No 3)  FCA 1428(6 October 2020) the FWC ruled that the Qantas group could not reasonably be held responsible, nor reasonably have prevented, the stoppages of work caused by the downturn in international and domestic air travel arising from the COVID-19 public health orders. It was found that both "Qantas and Jetstar took those steps which a 'reasonable [employer] might be expected to employ in such circumstances.'" The FWC also ruled that Jetstar was not required to maintain the status quo pending the resolution of the dispute because the relevant enterprise agreement did not contemplate or extend to circumstances in which there was no work which an employee could usefully perform whilst the dispute remained to be resolved.
- On 16 November 2020 the FWC ordered Preston James Pty Ltd to immediately end its stand-down of one of its state managers. The FWC rejected Preston James' claim that COVID-19 left the state manager with no work, finding instead that it had attempted to force her to resign. In reaching this conclusion, Deputy President Binet found it was "not reasonable that she be required to make permanent concessions in her employment conditions to address temporary market conditions" and that the stand down "appears intended to force her to resign from the business to avoid the lengthy notice period contained in her contract of employment." (See Collette Buttress v Preston James 1 Pty Ltd  FWC 5927 (16 November 2020)
- 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
- If dismissals are required, carefully follow the
company's usual policies in relation to termination and
- 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
- pubs, registered and licensed clubs
(excluding bottle shops attached to these venues) and hotels
- beauty salons including waxing, tanning and nail salons
and tattoo parlours;
- gyms, swimming pools and indoor sporting
- 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).
- 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
- 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
- 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.
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
- 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
- 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.
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
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
- Employers should consider their obligations under any
applicable enterprise agreement, award, employees’
employment contracts or workplace policies, which may be more
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  FCCA
- 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)  FWA 8816 noted (at
) 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
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
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
- 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
- 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
- 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
- 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.
- 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
- 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 /
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
- 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.
- Risk of adverse action and discrimination claims arising
from perception of management actions taken in direct response to
- 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.
- 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
- 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
- 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
- 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
- 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
- (a) relative living standards and the needs of the low
- (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. On 13 November 2020, the FWC further extended the variations to the Clerks Award until 29 March 2021.
- 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 FWC 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 were set to operate from 1 July 2020 to 27 September 2020. On 24 September 2020, the amendments were extended to 29 March 2021.
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 74 awards until 29 March 2021.
- 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.
Paid pandemic leave
- Nine health sector awards, including the Aged Care Award 2010, Medical Practitioners Award 2020, Nurses Award 2010 and Social, Community, Home Care and Disability Services Industry Award 2010 (SCHCDSI Award), have been amended to grant paid pandemic leave for aged care workers covered by these awards for a three-month period from 29 July 2020. The changes allow for employees who work in residential aged care facilities, including "regular and systematic" casuals, to take up to a fortnight's paid leave each time they must self-isolate because they display COVID-19 symptoms or have come into contact with a suspected case. On 30 October 2020, the FWC extended the paid pandemic leave provisions for aged care workers under the Aged Care Award, Nurses Award and the Health Professionals Award until 29 March 2021.
- On 18 August 2020, the FWC called for further submissions from the ASU, HSU, Federal and Victorian governments to assist in assessing the case for temporary paid pandemic leave in the SCHCADS Award and Ambulance and Patient Transport Industry Award 2020 for disability services and ambulance workers.
- The Federal Government has also implemented a $1500 lump sum "pandemic leave disaster payment" for Victorian, Tasmanian, New South Wales and Western Australian workers required to self-isolate after being tested for COVID-19. The South Australian Government announced a similar scheme, providing that workers required to quarantine would be eligible for a $1,500 payment. Eligible workers in an "identified COVID-19 cluster" will also have access to a $300 up-front payment for the isolation period between undergoing a COVID-19 test and receiving the result.
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 2020
- 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 2020
- 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.
- On 15 September 2020, the FWC rejected an application to amend the SCHCDSI Award to introduce a temporary hourly allowance of $4.94 an hour for disability workers to compensate them for working with known or suspected COVID-19 cases. The FWC determined that the allowance was unnecessary and likely to trigger a push to insert it into other health sector and aged care awards. The FWC noted that the allowance would impose an extra cost on employers dealing with actual or potential outbreaks that likely would not be recoverable through the NDIS.
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 originally due to expire on 30 June 2020, however through three variations, the FWC extended their operation until 31 September 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.
- On 25 September 2020, agreement was reached at a FWC conference to extend the operation of the amendments to the Vehicle Award to 30 November 2020.
Building and Construction General On-Site Award 2010, Joinery and Building Trades Award 2010 and the Mobile Crane Hiring Award 2010
On 7 August 2020, the FWC rejected MBA, HIA and AiG's bid to extend certain JobKeeper award flexibilities to ineligible companies in the construction sector. The FWC did not consider it appropriate for it to use its award variation powers to alter the JobKeeper scheme which is a decision reserved to the Commonwealth Government. Separately, the FWC highlighted that the construction employers attempted to 'pick and choose' elements of the scheme which suit their objectives and discard the benefits afforded to employees such as job security and income protection. The FWC noted that MBA, HIA and AiG have been subject to limited economic impact by the pandemic and any other deficiencies were covered by government investment programs.
On 10 August 2020, the FWC approved an application to vary the Building and Construction General On-Site Award 2010, Joinery and Building Trades Award 2010 and the Mobile Crane Hiring Award 2010 to insert two weeks' unpaid pandemic leave and allow the taking of double annual leave at half pay. Construction employer groups MBA, HIA and AI Group had also sought to 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 and. Additionally, the changes would allow industry employers to direct employees to take any accrued annual leave in excess of two weeks. However, the FWC was not satisfied that such measures were necessary., 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. The FWC noted that just before publishing its decision, the Victorian Government announced the "Stage 4" restrictions, including limitations on the number of employees permitted at construction sites. In standing the matter over, the FWC acknowledged that further award variations may become necessary and flagged that the matter may be relisted on request at short notice or may be relisted at the FWC's own initiative.
Real Estate Industry Award 2020
- The Real Estate Industry Award was amended on 5 August 2020 to allow the period of May 2020 to October 2020 to be disregarded when determining whether commission-only employees have reached the Minimum Income Threshold Amount (MITA). The variation comes as employees have struggled to meet MITAs due to the extraordinary effects of the pandemic. The variation also prohibits new employees from being employed as a commission-only salesperson from 6 August 2020 until 1 November 2020.
- The Federal Government has suspended its consultations
over introducing criminal penalties for the worst cases of
- 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
- In the chaos of trying to hire new employees and redeploy
others management of historical underpayments could fall through
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.
- 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 FWC.
- 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.
The Queensland University of Technology (QUT) has proposed to vary its enterprise agreement to require performance management to consider the pandemic's effect on employees' working environment and personal lives. QUT has also committed to providing staff who have contracted COVID-19 or been required to self-isolate with two weeks paid leave. In the interests of preserving jobs, employees have agreed to a suspension of a 2% wage increase in favour of a 4.04% rise in December 2021. Staff will be unable accrue annual leave during 2021 and are being directed to use four days of accrued annual leave during the Christmas and New Year break. The NTEU supports the proposed variations and have found the University's approach as "cooperative".
In a contrasting fashion, Griffith University's decision to abandon COVID-19 variations has been criticised by the NTEU. Griffith originally proposed that employees to forego of a 2% pay rise in 2021 in favour of a 2% increase in 2022 in the interests of protecting 80 full-time equivalent positions. Despite a majority vote in favour of the proposed agreements, Griffith discarded the variations as they did not receive a majority vote for all proposed variations which included several other terms. The $10 million in salary savings which would have occurred in the event of the variations will now be achieved by reducing executive salaries, maintaining senior staff salaries to 2019 levels and reducing expenditure in casual and sessional roles.
- 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.
- Officeworks has also received backlash from its employees following a new proposed enterprise agreement despite a significant increase in revenue amid the pandemic as a result of a boom in work-from-home arrangements. Officeworks has offered employees a 2% pay rise and seeks to expand ordinary working hours from 7.6 hours to 10 hours a day. Workers also want the new agreement to give labour hire workers at Officeworks distribution centres, including those working for third-party logistics businesses, the same pay and conditions as permanent Officeworks employees to reduce the risk of their wages and conditions being undercut The inability for Officeworks to provide essential workers with job security has sparked a 24-hour strike and an encouragement to customers to cease shopping in store or online during the strike.
- 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 FWC 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
- 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
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.
alternative tasks an employee may be able to take on as reducing
a permanent employee’s ordinary hours usually requires the
- 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.
approach is not without risk and if done without consultation and
consent may give rise to redundancies. Take advice prior to
- 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
- 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
- food supplies;
- household goods.
- temporary repairs;
- any similar assistance.
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.
1 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).
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
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?
- Undertake a risk assessment (this is discussed further below);
- Carefully consider what controls can be implemented to manage and control the risks identified in the risk assessment;
- 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);
- Consider the risks facing those employees returning to the workplace;
- As restrictions continue to ease, consider arrangements for transitioning employees from remote working back to the workplace;
- 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
- 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.
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:
- Isolate the person;
- Seek advice and assess the risks;
- Organise appropriate transport to have the person taken home;
- Clean and disinfect the office;
- Identify and tell close contacts of the person (while carefully considering privacy obligations); and
- 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.