With many companies having to completely reshape their workforces, reducing headcount to survive or adjusting in myriad other ways just to stay afloat, we have compiled some FAQ’s to shed some light on all things workplace rights and make sure you stay connected and across the vital information we all need right now.
Employees and employers are encouraged to work together to find appropriate solutions that suit the needs of individual workplaces and staff. This may include taking different forms of leave, working from home, or taking extra precautions in the workplace.
When can employers direct employees to stay away from their usual workplace under workplace health and safety laws?
Safe Work Australia has information about when an employer can direct employees to stay away from their usual workplace under the model workplace health and safety laws.
What if an employee cannot attend work because their child’s school has closed due to concerns about coronavirus?
Employees who cannot come to work because they need to care for a child whose school has closed will ordinarily need to use paid leave entitlements to be paid for their absence.
Paid carer’s leave is available to full-time or part-time employees where the employee needs to look after a family member or a member of their household who requires care or support because of a personal illness or unexpected emergency affecting the member. A school closing on short notice and for a short period due to concerns about coronavirus (for example, because someone at the school has tested positive) is an unexpected emergency for this purpose.
Other arrangements that may be available include:
- working from home (if this is a practical option and consistent with any applicable award, enterprise agreement, employment contract or workplace policy) or other flexible working arrangements
- taking annual leave
- taking any other leave (such as long service leave or any other leave available under an award, enterprise agreement or employment contract)
- taking any other paid or unpaid leave by agreement between the employee and the employer.
What if an employer wants their employees to stay home as a precaution?
Under workplace health and safety laws, employers must ensure the health and safety of their workers and others at the workplace as far as is reasonably practicable. Workers also have responsibilities under those laws.
If an employee is at risk of infection from coronavirus (for example, because they’ve recently travelled from overseas, or have been in close contact with someone who has the virus), employers should request that they work from home (if this is a practical option) or not work during the risk period.
Where an employer directs a full-time or part-time employee not to work due to workplace health and safety risks but the employee is ready, willing and able to work, the employee is generally entitled to be paid while the direction applies. However, if an employee cannot work because they’re subject to an enforceable government order or direction requiring them to self-quarantine, the employee isn’t ordinarily entitled to be paid (unless they use leave entitlements).
Employers should consider whether their obligations are impacted by any applicable enterprise agreement, award, employees’ employment contracts or workplace policies, which may be more generous.
When can employees be stood down without pay?
Under the Fair Work Act, an employee can only be stood down without pay if they cannot be usefully employed because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible.
Whether the option of standing down employees is available is very fact dependent and an employer should exercise the option cautiously. The employer must be able to demonstrate that:
- there is a stoppage of work
- the employees to be stood down cannot be usefully employed (which is not limited to the work an employee usually performs)
- the cause of the stoppage must also be one that the employer cannot reasonably be held responsible for.
Employers cannot generally stand down employees simply because of a deterioration of business conditions or because an employee has coronavirus.
Other options that an employer may consider instead of stand down include:
- seeking employees’ agreement to take paid (or unpaid) leave for a period
- in limited circumstances, directing employees to take paid annual leave
- in limited circumstances, negotiating with employees to change regular rosters or hours of work
- terminating the employment of the employees, in which case the employer may have to provide redundancy pay.
Employers are prohibited from exerting undue influence or undue pressure on employees in relation to making certain agreements or arrangements.