Australia: A Guide to Prevent Collapse During Coronavirus

Emily Kuhnert March 19, 2020

We have gathered information on what measures you can take as an employer in Australia to help preserve your employees while keeping your business intact. As more information comes in, we will update this post.

If you have any questions on the impact of Coronavirus on labor laws, visit our Linkedin AMA post and leave us your questions in the comment section and we will reply.

[AMA] Impact of Coronavirus on Labor Laws

Updated: March 25, 2020

Supporting Apprentices and Trainees

Businesses that employ trainees or apprentices may be eligible for wage subsidies in order to maintain the development of skilled workers. Employers who are eligible can receive 50% of their apprentice’s or trainee’s wage until September 30, 2020. Employers will receive a maximum reimbursement of $21,000. If the current employer is unable to retain the apprentice, the subsidy will be available to the new employer. More information can be found here.

Boosting Cash Flow for Employers

Small and medium business and non-for-profits, with a minimum of payment of $20,000 is eligible to receive a Government provided subsidy of up to $100,000. This measure is intended to boost cash flow to business that have a lower turnover that $50 million or NFP’s. This payment is tax free. More information can be found here.

Updated: March 19, 2020

Unpaid Leave

Employers cannot make a one sided decision that workers will take unpaid leave. Employers will need to obtain the employee’s consent for unpaid leave through a discussion with them. If consent is not reached, employers have the option to dismiss an employee through redundancy.

Reduced Working Hours

Employers can decide to reduce the number of hours an employee works but it needs to be agreed on by the employee. If the employee does not agree then redundancy will be the alternative procedure.

Redundancy

Regular procedure must continue to be followed when making redundancies. The first step is to conduct a consultation process:

  • Notifying the employees who are affected by the proposed changes
  • Provide these employees with information on the changes and the expected effects
  • Discuss the steps which have been taken to avoid and minimize the redundancies
  • Consider employees ideas or suggestions about the changes and how to avoid or minimize them.

Once the consultation process has been completed and documented and an agreement has been reached on the changes and next steps. Redundancy pay/severance will need to be given to terminated employees whose period of continuous service with the employer is more than 12 months, the amount of severance pay is based on length of service with their employer.

A severence calculator can be found here.

Redundancy in Small Businesses

Depending on the industry, some small businesses are exempt from paying severance when making an employee redundant.

The definition of small business is one with under 15 employees at the time of the dismissal and includes the employee and any other employees being terminated at that time, regular and systematic casual employees employed (not all casual employees) and employees of associated entities, including those based overseas. You can use the following government site to determine if your business is exempt from having to pay severance.

Employer and Employee Rights & Obligations Q&A

Source: Baker McKenzie

1. Are employees obliged to disclose themselves as a “risk-factor” to the employer? Yes.

  • Employees themselves have a duty under work health and safety (WHS) laws to take reasonable care for their own health and safety and to not adversely affect the health and safety of others. As such employees who are either infectious, or at high risk of being infectious, should disclose this information to their employer.
  • To ensure employees understand their reporting obligations, employers should develop a clearly communicated policy on what and when an employee is expected to inform their employer of risk factors.

2. Can the employer demand employees to disclose themselves as being a “risk-factor”? Yes.

  • Employers have a statutory duty to ensure, so far as is reasonably practicable, the health and safety of their workers whilst they are at work.
  • Employers can issue a lawful direction to employees directing that they disclose themselves as being high risk for COVID-19. Employees must comply with lawful directions or measures imposed by their employer which are aimed at ensuring work health and safety.
  • In addition, employers should carry out a risk assessment if they become aware that an employee has been in close contact with a confirmed case or has visited a high risk area.

3. Can the employer issue an instruction (or a policy) requiring employees to report co-workers with flu symptoms (i.e., fever, cough, difficulty breathing, pain in the muscles, tiredness) to the employer?

  • We would not recommend that employers issue an instruction, or implement a policy, requiring employees to report their coworkers to their employer.
  • Such an instruction or policy could lead to the creation of a toxic work environment.
  • Employers should take care that their employees do not spread misinformation about fellow staff which may be hurtful and result in claims of unlawful discrimination, bullying or defamation.

4. Can employees refuse to come to work? Yes, in some circumstances.

  • In some circumstances a worker has the right to stop or refuse to carry out unsafe work. A worker has this right to cease work if there is a reasonable concern that the worker would be exposed to a serious risk to their health and safety from an immediate or imminent hazard. A worker must inform their employer as soon as they can that they have ceased work. A worker must also then be available to carry out suitable alternative work, such as working from home.
  • Employees who want to stay at home as a precaution need to come to an arrangement with their employer that best suits their workplace, such as making a request to work from home (if this is a practical option) or to take some form of paid or unpaid leave, such as annual leave or long service leave. Normal leave application processes in the workplace would apply.
  • If the employee does not enter into an arrangement with their employer or use paid leave, they would be considered to be on unauthorized leave and would not be entitled to payment in these circumstances

5. Can employees refuse to attend meetings or to travel? Yes, in some circumstances.

  • As above, in some circumstances, a worker has the right to stop or refuse to carry out unsafe work. A worker has this right to cease work if there is a reasonable concern that the worker would be exposed to a serious risk to their health and safety from an immediate or imminent hazard. A worker must inform their employer as soon as they can that they have ceased work. A worker must also then be available to carry out suitable alternative work, such as working from home.

6. Can the employer send employees on suspension from work? Yes. 

  • It will not be appropriate for all workplaces to implement working from home arrangements.
  • As a precautionary measure, employers may consider requiring certain employees (who may be otherwise fit for work) to take leave and stay away from the workplace. The question of whether these employee will need to be paid is discussed below.

7. When is the employer forced to shut down its operations?

  • An employer would be required to shut down its operations if government authorities determine that it is necessary to do so.

8. Does the employer have the obligation to report infections occurring in the business to the health authorities? No. 

  • COVID-19 has been declared a ‘notifiable illness’, meaning that an individual and/or the treating medical practitioner has a positive obligation to report the illness to the Department of Health. The Department of Health’s position is that if an employee has COVID-19, they would have already been to a medical practitioner to be diagnosed with the virus and it would, therefore, have already been reported to the Department of Health by the medical practitioner.
  • Notwithstanding this, SafeWork NSW is currently treating COVID-19 as a ‘notifiable incident’, which means that an employer is under a positive obligation to notify SafeWork NSW, as the State WHS regulator, if an employee has a confirmed case of COVID-19. SafeWork NSW is not a “health authority”.

9. Can the employer require an employee to see a doctor? Yes.

  • Employees can be directed by their employer to obtain a medical clearance to ensure that they are fit for work and do not expose others to a risk of illness of injury. This may include being tested for COVID-19, provided this is reasonable and based on factual information about health and safety risks.

10. If employees are sent on suspension from work, or refuse to come to work or if an operation is being shut down, do the employees still need to be paid?

Whether employees are entitled to be paid will depend on the reason why they are not working:

  • Wherever possible, where risk factors are present, or an employee is awaiting the outcome of a test for COVID-19, but is otherwise able to work, employers may instruct employees to work from home and should be pay them their usual pay.
  • If an employee is displaying symptoms and is unfit for work, they can be treated as being on sick leave and will be entitled to sick pay according to the employer’s usual policy (which must not be less generous than an employee’s statutory sickness entitlements).
  • If an employee who is fit, ready, willing and able to work has been asked not to attend work by the employer and they do not have a job that can be done remotely, they are entitled to be paid their usual pay. An exception may be if the employee is a casual employee.
  • Employers may consider requiring certain employees (who may be otherwise fit for work) to take leave and stay away from the workplace. Whether or not an employee is entitled to pay in these circumstances is a vexed question.
  • Where an employee is fit, ready and able to perform work and is not a casual employee, then the employer must continue to pay them. Sick leave is reserved only for those employees who are actually unfit for work due to illness or disability. An employer can ask its employees to take accrued annual leave, but can only direct them to do so in limited circumstances – which vary depending on whether or not they are covered by an industrial instrument and the terms of their employment contract.
  • However, if an employee is required independently to self-quarantine by law (e.g., because they have arrived from an overseas destination or received a notice from a health authority under public health emergency legislation) and cannot otherwise work whilst on quarantine, an employer is not obliged to pay them. A potential exception to this is where the employer has in some way caused the imposition of the self-quarantining (e.g., where the employer required the employee to travel overseas). The employer and employee may agree that accrued annual leave be taken over this period.
  • Genuine casual employees are engaged on a day-to-day basis, and would not be entitled to pay where an employer elects not to offer up further work as a precautionary measure.
  • Under the Fair Work Act 2009 (Cth), an employer has the right to stand down employees without pay in limited circumstances which include where there is a stoppage of work for which the employer cannot be held responsible. These provisions are relatively untested, but could apply in certain circumstances where the government decides that certain employers should shut down their businesses for a period of time. They will not apply where the employer makes a decision to stand employees down as a precautionary measure. Employers should consult with employees and any trade union of which their employees are members before implementing such drastic measures.

11. If kindergartens and schools are being closed and employees need to stay home and cannot work, does the employer need to pay them and – if so – for how long?

  • In these circumstances, the employer should make every effort to allow the employee to work from home, or adopt any other flexible work processes to permit the employee to work from home. Otherwise, the employer should permit the employee to take paid leave (i.e., annual leave or long service leave) or unpaid leave for a reasonable period. Employees who have parental responsibilities do have certain protections under Federal and State anti-discrimination laws.

For more details see our detailed payroll & benefits guide to Australia NSW and Victoria