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The Ins and Outs of the Top 5 Lockdown Questions from SME Employers.

Let's face it, lockdown is not only taxing on employers and employees mental health but it also impacts businesses livelihood, and in a big way.

With the ongoing lockdowns in NSW and VIC some employers are having to face harsh realities on what this means for their businesses. Acknowledging that everyone's circumstances are different, in no apparent order here are a few answers to the most commonly asked legal questions posed by SME's during this latest round of lockdowns.

  1. What award flexibilities are available to employers?

In the height of the 2020 pandemic schedule x award variations introduced pandemic leave, and how employees can take annual leave during the pandemic, most of these variations have expired but there are still some awards which offer flexibility, you can see the full list here. Some of the changes include two weeks pandemic leave and taking increased annual leave at half pay - so definitely worth checking out!

The FairWork Commission has recently reiterated they would act expeditiously when required and reinstate variations.

JobKeeper enabling stand down directions are also a hot topic of discussion amongst SME's. These directions implemented in response to the first pandemic in 2020 were a welcomed relief for employers, and currently a group of industry bodies are rallying the Prime Minister for a reinstatement of these directions. According to the FairWork Commissions website, this direction allowed employers to direct employees to:

  • Not work on a day or days on which an employee would ordinarily work.

  • Work reduced hours compared to the employees ordinary hours of work. This also included reducing working hours to nil.

Michael Byrnes, employment lawyer on the timing on these directions as quoted on hrmonline says ''If the government does reintroduce these changes, it's unlikely to happen until parliament resumes next month''.

2. Can I direct employees to use their leave?

Prior to COVID it was quite reasonable for an employer to request an employee to use annual leave over the Christmas period, especially if said business shuts down during that time. It's important to note here that this advice is in line with employees under an award and not an enterprise agreement, for employers with employees under an EA the employer should double check the directions under that agreement.

''The FairWork Act doesn't specifically say that a shutdown due to a pandemic or some other cause is a reasonable excuse to direct an employee to take annual leave, but i do think an analogy with Christmas shutdown could be drawn, and i think its a cogent argument'' says Byrnes.

Excessive leave is another area to investigate , if you have employees with excessive leave you have options. There are directions as stated by the FairWork Commission that employers can implement so these employees take their excessive leave balance. FairWork steps that process out here. Be careful not to confuse annual leave with long service leave, as this is a totally different scenario.

Long Service Leave (LSL) is highly regulated and controlled state by state and there are quite a few differences legally. Western Australia and Tasmania do not allow employers to direct staff to take their LSL. Apart from NSW, who changed their LSL legislation last year to incorporate the pandemic, the below states allow employers to request employees to take their LSL in line with state based notice periods:

  • Northern Territory - two months notice.

  • Australian Capital Territory - 60 days notice.

  • Queensland - three months notice.

  • South Australia - 60 days notice.

  • Victoria - 12 weeks written notice.

3. Standing down employees

Not surprisingly this query is in the top 5. Employers don't want to be in this position, but unfortunately for some this is their reality. It is vital for employers to have researched all their options before arriving at a potential stand down. In the eyes of FairWork, employers must be able to show clear and lawful evidence for standing employees down, as these actions can be contested through the FairWork Commission.

In the case of Michael Mason v Coral Princess Cruises (N.Q) Pty Ltd t/a Coral Expeditions [2020] FWC 2721. Under the stand down provision section 524 of the FairWork Act 2009 (Cth) this allows employers to temporarily stand down employees without pay, when an employee cannot be usefully employed because of:

  • Industrial action.

  • A breakdown of machinery or equipment if the employer cannot reasonably be held responsible.

  • A stoppage of work for any cause for which the employer cannot reasonably be held responsible.

In this case the employee who was stood down alleged his employer was in breach of section 524 of the FairWork Act. The employer Coral Cruises due to the COVID pandemic, their revenue had dropped to zero and as a result were forced to stand down 50% of their workforce. The employee argued that although guest services had ceased there were administrative duties he could perform, and therefore there wasn't a 'stoppage of work'. In this case the commission determined the primary activity of Coral Cruises is the ''carriage of passengers on various cruise holidays'', and given this activity had ceased there was a genuine stoppage of work and the employees claim was subsequently dismissed.

Whereas in the case of the Health Services Union v Presbyterian Aged Care [2021] FWC 45 the case and circumstances were very different. In this case the commission ordered the Presbyterian Aged Care reinstate the leave balances of 9 employees who were stood down and directed to take leave after being potentially exposed to COVID-19.

In late 2020 the Presbyterian Aged Care was informed by Concord Hospital that one of its residents had been treated by a doctor who had been exposed to the COVID-19 virus. The hospital informed Presbyterian Aged Care that any staff who had contact with the resident would need to be off work for 14 days after their last contact, but they were not required to isolate at home. Presbyterian Aged Care stood down the 9 employees who had contact and at the conclusion of 4 days, Presbyterian Aged Care advised the employees they could return and nominate which leave they wanted to take for those four days.

In this case the commission deemed that this direction was unfair and for Presbyterian Aged Care it was just the right thing to do, and required Presbyterian Aged Care to redirect the leave entitlements of the relevant employees. The commission also determined that the 9 employees were not ''stood down'' pursuant to the FairWork Act 2009 (Cth).

Under section 524(c) of the FairWork Act 2009 (Cth), an employer may stand down an employee during a period in which the employee cannot usefully be employed because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible. The commission determined that, in this case, there was no stoppage of work as ''the work that the relevant employees performed continued to be performed during the relevant time by other employees''.

While stand downs have become common during the COVID pandemic there are certainly risks associated with their improper use and issuing directions.

As an employer, when making decisions in the area of stand downs, especially during a pandemic, its a good idea to pause and reflect and pose yourself these questions, before taking any action:

  • What does the FairWork Act say?

  • What do my policies/awards or employment contracts state?

  • Is this action reasonable in these individual circumstances?

4. Can I ask employees back into the office?

This particular question, is very state based dependent upon restrictions and government guidelines, but in general the advice is no. In NSW for instance, at this point in time, there are spot fines for organisations forcing their employees back to the workplace.

NSW premier Gladys Berejiklian said in her recent press conference ''There must be fundamental impediments or barriers to an employee effectively performing the duties of their role from home [to justify them coming into the workplace]. It can't be an employers preference''.

For the other states:

  • Victoria: The state government has released a comprehensive list of authorised workers who are able to attend the physical workplace, this incudes; allied health professionals and emergency service workers. All other organisations unable to open their physical space must close and allow their employees to work from home. All Victorian employees must wear a facemask in the workplace, unless they are the only person in the room.

  • South Australia: The state government has released a list of essential workers and workplaces, those not on the list, if possible must work from home.

At this stage Queensland, Western Australia, Tasmania and Northern Territory do not have any workplace restrictions in place, but as we all know and have become accustomed to, this can change at any time, so always keep informed by checking in with your local state health service(s).

5. Am I liable if an employee catches Covid-19 at work?

Unfortunately this is such a common fear, especially in the SME community. With the Delta variant virus making the rounds, the chances of employees contracting Covid is a lot higher.

Michael Brynes, employment lawyer says ''if an employee catches Covid at work, then their employer could be on the hook for compensation. An employer would need to show that the employment wasn't the main contributing factor to the employee catching the virus, otherwise the employee would likely be eligible for workers compensation''.

For employers there is no sure-fire way to prevent this from happening, after all it's a virus. The one thing employers should be doing in this instance, is ensuring they are following all the relevant Covid safety guidelines required for their individual workplace, this will ultimately keep them and their employees safe, as well as protecting their business from being prosecuted under WHS legislation, should they find themselves in a situation where an employee contracts Covid within their business.

The general overarching advice for organisations who are concerned with this happening, is to stay informed, up to date and compliant with this rapidly changing situation. SafeWork Australia is an excellent resource for all states.

And don't forget if you or your organisation would like further advice or clarification, don't hesitate to contact your local hr coach.

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