WORK IN THE TIME OF COVID-19 – A PRACTICAL GUIDE FOR EMPLOYER’S OBLIGATIONS

Workplace Directions

The coronavirus outbreak has resulted in many employers reviewing current work practices and arrangements. While many businesses are accustomed to managing illness or injury in the workplace, the global nature of the new coronavirus is creating unique challenges. This includes the requirement for employers to rapidly introduce preventative safety measures into workplaces, as well as ongoing compliance with industrial and employment laws as businesses adapt to the commercial realities of remote work and increasingly flexible work practices.

With new developments every day the situation is fluid, however there are a number of practical steps employers can take to help navigate the ‘new normal’.

Work Health Safety: Prevention, Compliance and Minimising Risk

Preventing the spread of the coronavirus in the workforce is essential for employee welfare, and also for compliance with obligations under Work Health Safety (WHS) legislation.

Persons Conducting a Business or Undertaking (PCBU) are obliged to ensure the health and safety of workers and others while at work. This means that, so far as reasonable practicable, PCBUs must actively take steps to:

  1. Identify and monitor risks to the health and safety resulting from coronavirus in their workplace
  2. Provide information, training instruction and supervision that is necessary to protect employees from the risks of coronavirus in the workplace
  3. Provide and maintain a safe workplace environment, which limits so far as reasonably practicable for the risks to health and safety at work associated with coronavirus.

Safe Work Australia has recognised that employers will not be able to completely eliminate the risk of workers contracting coronavirus while carrying out work. That said, employers must – in consultation with the workers and worker representatives – do all that is reasonably practicable to introduce appropriate control measures, implement the control measures and clearly communicate them to all workers.

This may include, for example:

  • Identifying employees who have recently travelled overseas or been in contact with confirmed cases of coronavirus, and advising employees to self-isolate if required
  • Providing products and facilities that promote good hygiene in the workplace including hand sanitiser, tissues, and cleaning supplies, and ensuring that the workplace is cleaned regularly
  • Rescheduling work-related travel or in person meetings where possible.

Employers must also continue to monitor the situation, by keeping up to date with the latest official advice provided by the Australian Government Department of Health and Human Services, the World Health Organisation, the Smart Traveller website, and the advice from state and territory governments and WHS regulators.

In addition to safety requirements, employers should also consider any relevant obligations imposed by the Fair Work Act’s National Employment Standards, Enterprise Agreements, Awards, contracts of employment, and workplace policies.

Flexible working arrangements

One of the impacts of the WHS legislation is that employers may be required to direct employees to stay away from the workplace if they are unwell and not fit for work. As at the time of writing, workers are required to self-isolate for 14 days if they have travelled overseas or been in close contact with anyone confirmed to have the coronavirus.

Employers may consider offering flexible working arrangements as a practical means of responding to coronavirus. However, employers should be mindful that workplace obligations, including WHS, will continue to apply to employees working remotely or from home. This means that employers should assess the nature of employees’ work and the suitability of their home environment for work responsibilities prior to negotiating work from home arrangements.

The Fair Work Ombudsman has recently released a guideline on Coronavirus and Australian Workplace Laws.

Closing the workplace to non-employees

For workforces where workers cannot work remotely (for instance in manufacturing), employers face different challenges and may take the step of closing their workplaces to all but those who absolutely must be in the workplace.

Impact of flexible work on wages

If an employer directs its employees to remain at home in circumstances where those employees are otherwise fit and ready for work, it is likely that the employer will need to continue to pay those employees as normal under the Fair Work Act 2009 (Cth).

Under WHS laws employees also have an obligation to take reasonable care for their own health and safety in the workplace, and to remain at home if they are feeling unwell. If employees wish to take their own precautions and remain away from the office, they must make a request to work from home or apply for leave. Requests will be subject to normal leave application processes, and employers should follow any existing work from home policies.

Paid and unpaid personal leave

Employees who are sick with coronavirus are entitled to take paid personal leave in accordance with the National Employment Standards (NES) under the
Fair Work Act 2009 (Cth). Similarly, employees with unwell family members are entitled to take paid carer’s leave, and casual employees may take unpaid carer’s leave.

Shut down and stoppage of work

Section 524 of the Fair Work Act 2009 (Cth) prescribes for a period of unpaid stand down during a period in which an employee cannot be usefully employed because of a stoppage of work for any cause for which the employer cannot reasonably be held to be responsible. Many industrial instruments also have additional shut down provisions.

Significant uncertainty exists as to how such shut down provisions may be utilised by employers whose operations are affected by coronavirus. Where employers exercise their own discretion to close physical worksites and send people home (but still perform some operations), this seems unlikely. Recent updates to guidelines published by the Fair Work Ombudsman would appear to indicate there may be some capacity to stand permanent employees down without pay (or require employees to access accrued leave entitlements) as required by a Government directive (for example, legally mandated self-isolation after returning from abroad). Such Government directives may have ongoing application to workforces as worksites such as social venues are mandatorily closed down.

It should be noted that the consequences of standing a permanent employee down without lawful authority can be significant, as such conduct can amount to a fundamental breach and “constructive dismissal” of the employment.  Employers should therefore obtain specific legal advice before applying such arrangements in their worksite.

Protections against termination and redundancy continue to apply

The protections against termination and redundancy in the Fair Work Act 2009 (Cth) continue to apply to employees affected by coronavirus. If employees do not have sufficient leave available to cover a period of absence, they can access unpaid sick leave for a period of up to three months before they will lose protection under unfair dismissal laws. That said, terminating an employee for an extended absence due to coronavirus could still fall foul of the general protections which apply to workers or breach anti-discrimination legislation. We would recommend that employers make a careful evaluation of the circumstances and seek advice prior to taking steps to dismiss any employees impacted by coronavirus.

Right of Entry

Many companies have started taking drastic actions to combat the spread of coronavirus amongst their employees. Some employers have elected to have their employees work from home while other employers that don’t have that luxury (for instance in manufacturing) are taking the step of closing their workplaces to all but those who absolutely must be in the workplace.

Indeed, some are simply prohibiting all visitors and stating that any work that can be conducted by telephone or video will be. In fact, this includes the Fair Work Commission which is now conducting most procedural matters by video or teleconference to mitigate against the risk of the coronavirus.

So what does an employer do when it gets a right of entry notice to hold discussions in a time like this?

Even at the best of times getting a right of entry notice can cause issues for an employer and can cause disruption.

However, even in the current circumstances, an employer would be poorly advised to just say no to an entry when all legislative requirements have been complied with by the union. Doing so could expose the employer to an action under section 502 of the
Fair Work Act 2009 (Cth) which could lead to the imposition of a fine. This might happen even though you have a good reason, because the legislation doesn’t allow you to hinder or obstruct a permit holder.

But that doesn’t mean that an employer cannot take measures to protect its workforce.

Section 491 of the Fair Work Act 2009 (Cth) states that any permit holder must comply with any reasonable request by the occupier of the premises to comply with an occupational health and safety requirement that applies to the premises. If there is no agreement on compliance with this request, the Fair Work Commission can deal with the disagreement as a dispute.

In such a circumstances, if there are particular measures that you have put in place for business critical visitors to your workplace, you could impose such measures on a permit holder who is seeking to enter your workplace. This might be the subject of some negotiation, but in all, if you are seeking to protect your workforce by complying with occupational health and safety requirements and government guidelines, you should be in a good position to argue for such measures for all who wish to visit the workplace.

Any employer receiving a right of entry notice at the moment where they have limited access to their site should seek to obtain specific legal advice in relation to their workplaces.

Workers Compensation

It is possible that employees may have an entitlement to workers compensation if they contract coronavirus. For example, if the employment involves travel to an area with a known viral outbreak, activities that include engagement or interaction with people who have contracted the virus or activities that contravene Department of Health recommendations. Further information regarding the potential for workers compensation claims can be found here.

Further information / assistance regarding the issues raised in this article is available from the authors, Nick Duggal, Partner (Melbourne), Tim McDonald, Partner (Sydney), Madelaine August, Partner (Melbourne), Emma Reilly, Partner (Canberra), Elizabeth Radley, Partner (Newcastle), Brian Jackson, Special Counsel (Perth) and Stephen Marriott, Senior Associate (Sydney) or your usual contact at Moray & Agnew.

The above content is commentary rather than legal advice and was prepared on the basis of applicable legislation, government programs and initiatives that were in place as of the date of publication. Given the ongoing evolution of both the COVID-19 pandemic and frequent consequential changes to the various laws and programs within all Australian states and territories, readers should seek legal advice on the current situation as applicable to their specific circumstances before taking any action in relation to the above.


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