By Sam McIvor >>
THE SPREAD of the novel coronavirus (COVID-19) continues to cause significant disruption to Australian businesses and fuel ongoing economic and employment uncertainty.
This has led to an unprecedented number of inquiries relating to an employer’s obligations in respect to ensuring the health and safety of its workforce and how to appropriately manage employees through these increasingly uncertain times.
Personal leave and working from home
If an employee informs their employer that they have contracted COVID-19 or need to care for a member of their immediate family or household who has contracted COVID-19, then they will be entitled to take personal leave under the NES.
However, personal/carers leave is technically not available where an employee has come into contact with a person who has COVID-19 or where an employee returns to work after travelling to a high risk area, but is not yet sick themselves.
This is because an employee can only access personal/carers leave if they are unfit for work because of an illness or injury affecting them.
Employers may elect to take a practical approach to these circumstances. This can include the employee working from home if they have the capacity to do so, which means they will continue to be paid their wages.
Employers still maintain the discretion to provide employees with paid leave in order to maintain no loss of income.
Changing or scaling down operations
As a result of the potential further spread of COVID-19, some employers may be forced to consider scaling down operations. For example by:
• placing a freeze on new hires;
• reducing engagements with supplementary labour such as contractors or labour hire workers;
• reducing employee hours; or
• providing annual or long service leave in advance or at half pay.
An employer’s ability to make such changes will largely depend on the applicable industrial instrument (for example, an enterprise agreement or award) or contract that applies to their employees.
Where an employee or group of employees cannot be usefully employed for a period because of a stoppage of work for which the employer cannot reasonably be held responsible, then employers may ‘stand down’ that employee or group of employees for that period without pay.
It is critical that there is a stoppage of work to trigger a stand down. That is, all or part of the business must cease operations in order to stand employees down without pay.
Employers usually exhaust employees taking available paid leave such as annual leave before considering standing down without pay.
If you have a stand down provision in an enterprise agreement or an employment contract you must get specific advice on the terms of this before implementing a stand down as the general rules may not apply to you.
Sam McIvor is a partner with Mullins Lawyers, Brisbane, specialising in employment law including employment relations, industrial relations and health and safety.