In response to our first article, which you may access here, and the additional measures imposed by the Australian and Victorian governments, further issues and concerns have been raised by our clients.
As such, we have collated a further guide to answer common queries.
Whilst all care has been taken to ensure the accuracy of this information, it is important to consider the facts and circumstances of each matter as it relates to you. Our team of experienced Workplace Relations lawyers is available to discuss any of these matters with you, as well as other employment law related questions.
1. We may need to implement a stand down. However, we are concerned for our employees. What government subsidies are available to them?
We are seeing dramatic changes to the landscape every day, if not within a 24-hour period, and so we base our information on government direction so far.
Currently, there are government subsidies available to employees who have been stood down.
Permanent employees who have been stood down may be eligible for the JobSeeker Payment. This payment is made fortnightly and may attract the Coronavirus Supplement of an additional $550 per fortnight.
The amount paid under this scheme is dependent on income testing and employees must meet applicable residency rules. It is the employees’ obligation to apply for this subsidy. Employees must also inform you if they receive this payment in case you intend on applying for the JobKeeper Payment.
We recommend you direct any employee to Services Australia for further information.
Employees who have been stood down may also be eligible to receive the JobKeeper Payment. This subsidy is in lieu of the JobSeeker Payment and came into operation on 8 April 2020.
As the employer, and if eligible, you may apply for this subsidy by registering your interest with the Australian Taxation Office (ATO). If you satisfy all relevant criteria, payments of $1,500 per eligible employee will be made to you to pass on to your nominated employees. These payments are due to commence in May 2020.
It is important to note that if employees have been stood down without pay, you are obliged to pay them the minimum $1,500 (before tax) as part of this scheme.
You may seek this assistance for a maximum of 6 months, and you must follow reporting requirements of the ATO.
2. What is the difference between a stand down and leave without pay?
In our previous article, we set out the strict requirements of the Fair Work Act 2009 (Cth) (FWA) when implementing a stand down. Namely, you may be entitled to stand down employees without pay where they cannot be usefully employed due to a stoppage of work beyond your control.
We also highlighted that where your right to stand down exists other than under the FWA, such as a modern award or enterprise agreement, then those provisions must be complied with instead.
You may be exposed to the imposition of pecuniary penalties in circumstances where you stand down an employee without the conditions for that taking place.
As such, a stand down should only be effected as a last resort.
Unpaid leave occurs where you permit employees to take leave and not pay their salary. Employees must agree to this form of leave, and you cannot compel them to take it.
Similarly, an employees’ continuity of service is not broken. Unpaid leave may be an alternative if you are not entitled to stand down employees in circumstances where there has been a slowdown in work as opposed to a stoppage in work.
If agreement is made with the employees to take unpaid leave, we recommend it is recorded in writing.
A new initiative, from by the Fair Work Commission, will see the introduction of “pandemic leave” into modern awards. This new form of leave is said to allow two weeks of unpaid leave for applicable employees. In addition, this proposal will permit flexibility for employees to take annual leave at half pay.
3. Further, what support are employees entitled to, if anything, if they are directed to take leave without pay or reduce their hours?
Depending on eligibility criteria and nomination by you, employees may be entitled to receive the JobKeeper Payment.
This may apply in both scenarios: where employees’ hours are reduced by way of a “JobKeeper stand down direction” or if an agreement is made in which the employees takes unpaid leave and their salaries are supplemented by the JobKeeper Payment.
4. What are my obligations to employees who are Australian citizens or permanent residents and cannot return to Australia from overseas? They have exhausted their paid leave entitlements.
The Fair Work Act does not deal with this issue specifically.
Strictly speaking, you are not obliged to pay the employee because they cannot perform any work.
5. Further, do my obligations change if they are a temporary visa holder who is stuck in their home country and cannot return to work in Australia?
No, your obligations do not change if an employee holds a visa. Your visa-holding employee is subject to the same rights and entitlements as an Australian or permanent resident employee. Equally, you are subject to the same workplace obligations and laws when dealing with foreign workers.
Accordingly, if changes are to be made to the terms and conditions of their employment due to COVID-19, they must not be less favourable than what you are providing to your Australian or permanent resident employees.
However, given the underlying operation of the visa, you should make all relevant enquiries with the Department of Home Affairs (DHA) to ensure that visa terms are not breached where employment terms are varied.
Further, given the overlap between migration and employment laws, it is essential to seek migration advice and you may find details for our experienced Migration Department here.
6. What are my OH&S obligations to employees whilst they work remotely?
Your legal duty to provide and maintain a working environment for your employees that is safe and without risks to their health arises under the Occupational Health and Safety Act 2004 (Vic) (or other applicable State and Territory legislation). This duty is qualified to be “so far as is reasonably practicable”.
Whilst a majority of work is now being performed at home, your duty continues and extends to the employee’s home working environment.
Accordingly, you must ensure, and continue to monitor, that there are no risks to employees’ health and safety now that they are working from home. You may fulfil this duty by asking employees to complete a checklist with items they must address in being permitted to work from home.
Employers should also turn their minds to breaks, and encourage employees to schedule these accordingly.
Mental health and well-being must also be considered, if not placed at the forefront. Some employees may be particularly vulnerable, such as those who live alone or those whose nature of work can be confronting. Maintaining clear lines of communication, both in a professional and personal sense, and maintaining the sense of a team environment, are recommended.
7. Can I require employees to take paid annual or long service leave?
Yes, you may be permitted to require employees to take annual leave. However, requiring employees to take long service leave is more problematic and likely to be impractical.
Section 88 of the FWA stipulates that a period of annual leave may be taken by agreement between the employer and employee. However, employment agreements, modern awards or enterprise agreements can provide that an employer can direct an employee to take annual leave. Depending on these provisions, you may be entitled to direct employees to take annual leave during the pandemic.
You may also consider a direction to take annual leave under the new JobKeeper legislation.
Where no agreement, modern award or enterprise agreement applies and you intend to rely on the FWA, you may direct employees to take annual leave in circumstances where the direction is “reasonable” (section 94). It may be reasonable where your business is non-essential and you choose to shut because of COVID-19.
Section 19 of the Long Service Leave Act 2018 (Vic) requires employers give employees at least 12 weeks written notice if they want employees to take long service leave. This notice period may be reduced by agreement between the parties.
8. What happens if employees injure themselves while they are working from home?
Workers compensation laws will apply if the injury arises out of the course of employment. Employees will need to complete any application form required under the legislation and an insurer will decide whether it is accepted or rejected.
9. We stood down employees prior to the introduction of the JobKeeper Payment. Can we implement a JobKeeper direction under the amending legislation?
Yes, you may implement a JobKeeper direction to employees who have been stood down provided you comply with your obligations under the amending legislation.
10. Do I need to specify an end date if we implement a JobKeeper direction?
No, you are not required to specify an end date if you implement a JobKeeper direction to employees.
The legislation provides that the direction remains in place until it is revoked or withdrawn by the employer, or if a new direction is made to replace the first direction.