We provided our first alert regarding Coronavirus and employer obligations on 12 March 2020. We have received hundreds of follow-up questions and have now prepared this update based on the following areas of concern.
- We have confirmed some issues discussed in the alert dated 12 March in Section 1 below.
- People are increasingly discussing the possibility of schools and childcare being closed. This raises questions about carer’s leave and we discuss these in Section 2 below.
- Some businesses are already struggling and are discussing their options. This includes standing employees down without pay, discussed in Section 3 below, and redundancies, which are discussed in Section 4 below.
For further advice on any of the above matters, please contact us on 1300 565 846 or
info@ablawyers.com.au and we will guide you through your options.
SECTION 1: PERSONAL (SICK) LEAVE
- While we dealt with personal leave in our alert on 12 March 2020, we remind you that personal
- leave is not available to be taken by employees who are not ill or exhibiting symptoms of illness rendering them unfit for work.
- Businesses are reminded that all employees, except casuals, are entitled to accrue 10 days paid personal leave per year of continuous service.
- This includes part-time employees so, to ensure compliance with the National Employment Standards, please ensure your payroll systems have up to date balances for full-time and part-time employees in the case of extended illness.
ISOLATED EMPLOYEES
- We addressed the circumstances where an employer may not be obliged to pay their employees in our article on 12 March 2020. While taking the step of directing an employee or group of employees to remain away from the workplace without pay may be culturally challenging, it may be unavoidable for some employers.
- This will require an on-going judgement call for you between affordability, culture and engagement. We would suggest that you weigh these considerations up carefully over the short and long term.
- Directing an employee to remain away from work without pay where they need to be isolated would only arise where there is a materially greater risk of that employee attending at work, than other employees, and only where that risk cannot be mitigated.
- This approach is likely to be limited to the 14-day isolation period for high risk persons recommended by the Australian Government and should not be approached lightly.
- As soon as any material risk is removed or otherwise dissipates, an employee is entitled to be paid. An example of circumstances where material risk might arise is provided in our alert on 12 March 2020. We will continue to update you on this as circumstances develop.
SECTION 2: CARER’S LEAVE
Q: What if an employee needs to look after their child(ren) due to school closures?
A: An employee may take carer’s leave to provide care or support to an immediate family or household member, where the care or support is required because of an unexpected emergency.
At this time, the closure of a school in the current climate will amount to an unexpected emergency. Where an employee qualifies for carer’s leave, they may access their accrued paidpersonal/carer’s leave.
An ‘immediate family member’ is:
- a spouse or former spouse, de facto partner or former de facto partner, child, parent, grandparent, grandchild, sibling;
- a child, parent, grandparent, grandchild or sibling of the employee's spouse or de facto partner.
A ‘household member’ is any person who lives with the employee.
The employee should be paid as if they were taking personal (sick) leave, the minimum requirement being payment at base rate of pay for the employee's ordinary hours of work in the period.
Employers may ask for reasonable evidence to justify the absence on carer’s leave. For example, a school announcement about a shutdown.
Q: What if an employee needs to look after someone that is ill? Including a child or family member who is ill or requires support due to Coronavirus?
A: An employee may take carer’s leave to provide care or support to an immediate family or household member, where the care or support is required because of a personal illness, or personal injury.
Provided the family or household member is suffering from an illness, the employee would be entitled to access their accrued paid personal/carer’s leave.
The rules set out above in respect of who qualifies as a family or household member apply, as do the rules for payment and evidence.
Q: What if an employee needs to look after their child(ren) due to school closures but has no personal leave left?
A: You have a few options. You may decide to pay the employee as an exercise of discretion. Absent this the employee could take leave without pay (subject to any leave without pay policy you have) or they could access another form of paid leave such as annual leave or accrued long service leave.
SECTION 3: TEMPORARILY SHUTTING DOWN PART OR THE WHOLE OF YOUR BUSINESS (WITHOUT PAY)
Many calls have started to focus on temporarily shutting down a business in the near future.
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 you may ‘stand down’ that employee or group of employees for that period without pay.
This is usually seen as a
last resort. Employers usually exhaust employees taking available paid leave such as annual leave before considering standing down without pay and as with many other COVID-19 related decisions you should consider balancing affordability, culture and engagement with the law before deciding what to do.
Natural disasters and pandemics, such as the current COVID-19 pandemic, can place businesses in circumstances where they are unable to usefully employ an employee or group of employees.
It is vitally important that the rationale and implementation of a stand down direction is conducted in accordance with the relevant provisions of the legislation.
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.
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 lawfully stand employees down without pay.
So, you need to ask yourself:
- Is there a stoppage of work?
- Is it for a reason reasonably outside your control?
- Can the affected employees be employed to perform useful work?
You cannot stand down an employee if there is useful work available within the ambit of their usual job and employment contract (focus on the employees role and job description to make this assessment). Useful work does not have to be the work that the employee ordinarily performs but needs to be genuine productive work not made up work.
Employees should be offered the opportunity to take any paid leave that they have available during a period of stand down.
These options are illustrated in the following examples:
Example 1
Assume that you run a restaurant. You have 11 full-time employees - three Chefs and seven floor staff and a bar person.
All three Chefs call you and say a mate has been tested for COVID-19 and they need to self isolate for 14 days. You ring around and find no replacement Chefs.
Working from home won’t help your type of business and until the Chefs come back you decide that you are left with no choice but to shut the business.
All of your employees are new and have very small annual leave balances which they exhaust in the first week after the Chefs are isolated.
You are struggling to manage the cost of the rent with no trade and decide that the only option is to stand down the remaining employees without pay because you simply cannot function the business without the Chefs.
You provide the employees with a properly drafted letter implementing the stand down.
This would be a proper basis to implement a stand down without pay for the remaining employees.
Example 2
The Government issues orders or advice to the community that all businesses are to be closed except food shops and pharmacies.
You run a car mechanic workshop.
This would satisfy the stoppage of work trigger but you still need to consider whether the employees can be usefully employed; working from home etc.
You get the team to clean up the workshop for the first couple of days and then ask them to take annual leave.
Unfortunately their annual leave is exhausted before the Government shut down ends and you are left with no choice other than to implement a stand down without pay.
You provide the employees with a properly drafted letter implementing the stand down.
This would be a proper basis to implement a stand down without pay for the remaining employees.
Example 3
Your business makes pizza ovens and is unable to obtain parts essential to manufacture the ovens from China as a result of backlogs from your supplier.
You have explored whether your employees can be usefully employed on anything else but they cannot.
You provide the employees with a properly drafted letter implementing the stand down.
This would be a proper basis to implement a stand down without pay for the remaining employees.
Example 4
It’s June 2020 and your shop has been hit hard by COVID-19. Sales are down 40% but so far the Government has not instituted a close down like the one in Spain and Italy.
You have cut all the casual employee hours and you are now unsure whether you can keep the door open. Your permanent employees have exhausted their annual leave allowing you to run a skeleton roster for a period.
Having some customers is good but it’s not enough to keep you going.
Can you shut the business and stand the employees down without pay?
This is a difficult example and will require a detailed discussion about your circumstances.
You will likely be able to implement a stand down at some point in this situation but given the potential significant ramifications of getting a stand down direction wrong if this is your situation please exercise caution and call us for specific advice.
SECTION 4: REDUNDANCIES
It is also important to note that stand downs are temporary in nature and are intended to ‘freeze’ the employment relationship as an alternative to termination. Employees cannot be stood down indefinitely and, if it becomes clear to the employer that they will not be in a position to resume their employment, the employee would still be entitled to any termination benefits that might ordinarily apply (e.g. notice and redundancy pay).
If you decide that redundancies are required, it is important to remember there are three requirements for a genuine redundancy to best avoid an unfair dismissal claim:
- The business must no longer require the person's job to be performed by anyone because of changes in operational requirements; and
- The business must consult with any employees who are covered by a modern award or enterprise agreement (in accordance with the relevant consultation provision); and
- It must not have been reasonable in all the circumstances for the person to be redeployed within the business or an associated entity. If redundancies are implemented, you must consider your obligation to provide:
- redundancy pay;
- provide notice of termination (or payment in lieu);
- and other statutory or contractual entitlements.
For further advice on any of the above matters, please contact us on 1300 565 846 or
info@ablawyers.com.au and we will guide you through your options.