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COVID-19: Employer obligations if returning to work

COVID-19: Employer obligations if returning to work

Presenters: Nigel Ward, CEO and Director and Joe Murphy, Managing Director - National Workplace

This webcast reviews the proposed easing of restrictions and look at the employer’s legal obligations and what you need to consider when you get the green light to resume business in whatever form that might be.  Nigel and Joe discuss the legal issues employers must consider and will look at:

  • Providing a safe work environment
  • Stand downs and returning to work
  • Getting casuals back to work, including those on JobKeeper

Watch the one hour free update for business owners, HR managers and professionals now.

Sign up to our newsletter for the latest information on managing your employer obligations during and after COVID-19. We have a wide range of resources available to read now in our COVID-19 Information Hub here

Webcast Transcript

Nigel Ward: Thanks for coming. It's good to see you!I feel that we've been allowed to sit marginally closer than we have in the last few weeks, so it's very pleasing.

Nigel Ward: Today is quite interesting because I know everybody is at different stages of where they are, but I think we all accept now, we're sort of on the way out, which is really pleasing, and we want to start to talk about some of the things that are going to come to the fore on the way out and we're already getting a lot of questions from clients about on the way out.

Joe Murphy: We certainly are.

Nigel Ward: We're going to try and do our best to start that conversation today, and hit some of those highlights, if we can. First of all about the government roadmap. Make sure people have got a sense of what that really means and where it fits in. We might also chat then about what our clients are already talking to us about or the issues they're confronting, so we'll talk about that and share that. Then, we want to come on to this really big issue about the safety considerations about coming back to work.

Joe Murphy: A big one.

Nigel Ward: I'll pass it over to you to drive that, if we can. And then, we've got these really challenging issues about, "Look, I stood people down under the Act. Can I now stand them down on the JobKeeper? Can I still give JobKeeper directions, even though we're coming out?" We'll try and deal with that as best as we can. Then, we're going to just give a little bit of an update, if we can at the end, about Modern Awards and what's going on. Because there is still quite a bit going on.

Joe Murphy: There certainly is.

Nigel Ward: And now, the worm's turned a little bit and now we've got some claims from the union movement actually seeking increased benefits in a variety of sectors, and we'll talk about those as well. So, that's roughly where we are. As always, send your questions through. We've already got half a dozen straight away, which we'll be using so, as always, if you get in early, we'll try and get your question up, so we'll do our best to do that, but it should be a fun hour.

Nigel Ward: So let's just talk about the roadmap. I think probably everybody in Australia has seen this. This is the roadmap that the Prime Minister put up about four or five days ago now, and I think a number of things come out of this which are really important. One is, clearly it's an iterative process. It's a phased process to get back to normality, if we can use that term.

Nigel Ward: The really important thing to say straight away though is that even though the Prime Minister is talking this up, Ministers is talking this up, to actually give this legal effect, we need public health orders.

Joe Murphy: We certainly do, and this will be looked at as a guideline and it might be a first port of call, before you then go to the relevant state or territory order that exists in your state or territory. And I think we were discussing before that we haven't seen New South Wales' order yet. Gladys Berejiklian has come out and made some comments that from Friday, there will be some changes, and we haven't yet seen the order and it's really important. We always wait to see the order before we start sending out materials in detail, because you can jump the gun and every state and territory has a slightly different take on what you need to be doing.

Nigel Ward: I think the one that's really important is as we sit here today, if you think about the phrase there in step one about work, "Work from home if it works for you and your employer." No public health order has actually tried to explain what that means yet and we've still got the old ones. And the old ones are still saying, basically, "You shall work from home unless you effectively can't do your job from home," and that's still in place. So it's going to be a few more days before we actually understand what that means in detail. I'm sorry about it, but you're just going to have to stay tuned when those public health orders come out. We'll let you know what they actually mean, and we'll do that through our normal alerts.

Nigel Ward: I think we've got another one of these in a couple of weeks' time and as they change, and I suspect they might change every week or fortnight, we'll have to keep you updated as to what they mean. But that's the gist of it.

Nigel Ward: Now, of course, everybody is starting to say, "I need to get ready," and there's a lot of questions that clients have already raised with us, a lot of things they're talking about. We thought we'd share those first from the practical perspective, and then we'll get into some of the nitty-gritty if we can.

Nigel Ward: If you take the last three or four days, these are the sorts of issues which we are seeing coming up and we'd challenge you to make sure you're thinking about them as well. I say, first of all, we're not talking to anybody at the moment about a hard start back into the office. Nobody is going, "Everybody will be back on this day. The minute the government says it, I'm free to do it, I want everybody back." Nobody is talking about that. Everybody is talking about the phased reintroduction, and I think that's a really, really sensible thing to do.

Joe Murphy: It is.

Nigel Ward: Paramount is going to be wellbeing, that is the actual wellbeing of the employees. We'll talk about the safe working environment a little later, so I won't go into that. Just be conscious that this is a very complex issue. A lot of personal preference issues are going to come in here.

Nigel Ward: Some people are desperate to come back to the office. Some people are freaked out about coming back to the office. So there is going to be a fair amount of that to talk through.

Nigel Ward: I suspect, and Joe is going to talk about this in more detail, public transport is going to be a big issue. Now, if you drive to work and you've got a parking space, you're probably less worried about this. But if you are somebody who is going to be on a train or a train and a bus for an hour and a half, the whole question of public transport is going to be an issue from your personal perspective. But we also need to wait and see what the government is saying about public transport. We saw in London, I think yesterday, they're talking about forcing people to stagger using public transport. So again, we'll have to really wait and see that.

Nigel Ward: Just understand also that even once you get to work, some people have got a different sense of safety, their personal safety. What I would say is once you get people back into the office, if somebody is unnaturally quiet, unnaturally withdrawn, just make sure you're talking to them and communicating, and doing your best.

Nigel Ward: Big practical question we've been asked by a lot of clients, "What's going to be the rules around lifts?" We've been doing a little bit of wandering around in the last few weeks, and I think we've had one person in a lift at a time.

Nigel Ward: I think we might have been in some very big lifts where two people got in, but it wasn't more than that. If you think about big office blocks, let's say you end up with 1500 people trying to get up an office block in, say, a 40-minute period, and it's one person per lift, I mean, that might take an hour to get everybody up to work. So that's a very practical issue you're going to have to talk about and think about, and it's probably going to be a bigger issue than just your business if you share the office. But, also, you've got issues there about productivity, you've got issues about social spacing, and you've just got issues about whether or not people are just going to get fed up doing it.

Nigel Ward: The other big one I'd ask everybody to think about as well as childcare. I'm past this, Joe is not, so Joe is living in this world, I'm not living in this world, but what we found was that while childcare was free, if I can use that phrase, my understanding is that it's not free anymore, is that right?

Joe Murphy: It's still free, but it may not be for much longer. But the difficulty is trying to get extra days. Once upon a time, you could get an extra day and it'd be easy because the centre would say, "That's fine, you can pay for the extra day," and what we're finding is that centres are not offering the extra days because they're not getting paid by the government for them.

Joe Murphy: I'm sure some people are able to do it, but the general issue we're finding with that is that people are not able to get those extra days.

Nigel Ward: We've also found some people who've actually struggled to get the days back they had before, at a couple of centers, so just the whole question about making sure your childcare fits your model of bringing people back to work, is important as well. And there's also another consideration, which we've seen a lot of, which is what your partner's required to do as well, juggled against that childcare issue. We had this with one of our own employees, we were talking to a couple of days ago about their partners staying at home, that had a certain challenge with it in terms of when they were coming to work not/coming to work.

Nigel Ward: Another person said, "Well, look, my partner has been told they must begin on Thursday/Friday and that's going to be their days back in, when they're allowed back in, and that's a childcare problem for me on this day." All I would say at the moment is that I think communication, early communication with your staff is really important, and it's taking a moment about what legal rights you've got to direct people, but the more you can engage with your people, at the moment, around these issues and find a workable solution. Most of our clients are talking about ... sort of Roster A/Roster B, part of the week for a while, three days on, two days off. So most people aren't talking about big bang. They're talking about phased reintroduction to the workplace.

Nigel Ward: We'll get asked that question, "What are other people saying?" Well, these are the things that other people are talking to us about.

Joe Murphy: And I think there's a number of overarching elements here. One of them is the practical aspect of, or challenge that these issues present. There's also the logistical challenge and also a cultural challenge, and one of the things we want people to remember is that, those of you that have great businesses out there will know that culture is a very strong element in any great business, and if you take your eyes off the cultural ball and only focus on the regulatory ball and getting back to business, you may find it even harder to come back from where you are right now. But that these things are about just taking a practical approach and understanding that parents are going to be driving their kids to school, so traffic is not going back to normal.

Joe Murphy: In fact, traffic might be crazy. People will drop their kids to school, people will drive to work, and then Nigel raised the issue about waiting for hours to get up in the lift, so what we might find is that businesses who have Roster A and Roster B might actually need to have Roster A, B, C, and D.

Nigel Ward: Yeah, and they might have to have those staggered starts or staggered finishes, and all sorts of interesting things as well. Yeah, absolutely.

Nigel Ward: Some really good questions coming through which I might hit you with in a moment. Let's talk about making the return to work safe, the workplace safe.

Joe Murphy: Sure, and what I wanted to start with is why we're doing this and this is why we start with the health and safety, when we talk in the health and safety world, why do we have health and safety? And that's because of the risks or what happens when risks are realised then, and that is we can have serious illness, we can have mental health challenges or mental illnesses, and, in worst case scenario, death. And I don't want to overplay this because a lot of people think that sometimes the COVID-19 threat and certainly there was something on the news the other night about a rally in Victoria about how it's ... Some conspiracy theorists saying it's being overstated. But, I just want to say that the reality is that even though we've got a very low death rate here in Australia compared to the world and the like, death is a real possibility out of this whether it's for someone who comes into your workplace or someone who catches it in the workplace, or on the way to work, or on the way home, and then infects someone else. So it's really important that holistically, we examine every aspect of what your employees are doing. How they're getting to work, what they're doing on their way to work, and how they're conducting themselves at work.

Nigel Ward: And my sense is that most employers understand that they've got to take that stronger approach to the safety of their people at this time. I think most of them do that.

Joe Murphy: I think that's right. The reaction we've seen has been a very serious one by all employers who have embraced this, embraced this issue and who want to accommodate the health concerns and do the right thing, just generally.

Joe Murphy: Really, you just take a general health and safety approach. The first thing you try and do is eliminate the risk of COVID. Now, I think that eliminating the risk means you remove the risk altogether, that's going to be very hard for most businesses. The absolute majority of most businesses to do. So what you'll be doing is implementing measures that minimise the risk, and so it's a risk management approach. When you do get to the point of examining these issues, it's a risk assessment.

Joe Murphy: Unless you already know what the risks are and then you can move straight to controls and implementing measures to manage those risks. It's very much an important situation where you are looking at the circumstances and the characteristics of the individual employee, the people around them, the features of the workplace, and the nature of the work they're doing as well. Because some areas of Industry will have employees that are at a higher risk of exposure and others you can manage it in a different way.

Nigel Ward: And if you think about that, it's not just the individuals, as you just said, some people might have compromised immune systems. You know, once you get over a certain age threshold, you're more susceptible, I assuming there's a higher risk profile. But then it's the little things like how is your office laid out. I mean, if you're open-plan and you're normally squashed in like sardines, that's going to create more issues for you. If you're still in a sort of closed-plan, everybody's got a physical office with the door closed, again, there's going to be different risk parameters to that physical environment as well. So it's that very much tailored risk approach to the work setting and the individual.

Nigel Ward: There's some questions coming through. One of them is not up there, which had a really interesting question which was, "Can I compel people to have their temperature checked when they come into work?" And I suppose the image I've got in my mind is this is sort of a queue of people trying to get in the office and I'm going to be delicate but I presume they're going to use the thermometer somehow, right? What are your views on that?

Joe Murphy: We've actually had this question quite a few times. Not because people are just thinking it's a maybe, it's because it's actually happened. We've had employees, for some clients, who have refused to be temperature checked. And that's with the infrared temperature checking. So I found that quite astounding!

Nigel Ward: Do you see a difference between and I'll say this with some care, because of where thermometers sometimes go in. Do you see the difference between an invasive thermometers and non-invasive thermometers?

Joe Murphy: Look, I actually do. I really do. The starting point for that scenario is and I think you should do this for all of the concerns that any employee has, but we're starting with a really basic one, that many people will find a little astounding.

Joe Murphy: They'll say, "Well, if you've got a temperature gun, it might look threatening, holding it up against someone's head," but it is what it is. It's just a temperature gun, it's infrared lights, it's non-invasive, there's no radiation involved, it doesn't penetrate the skin in any way. It takes a reading off the skin. So, I think, as I said, the same approach you take with any scenario or any question employee has, here is, don't react in a negative way to hat but ask the employee, "What are your concerns?" That's the first port of call.

Joe Murphy: If the employee has questions about how the gun operates, I think that's perfectly reasonable. If no one's ever seen one of those infrared temperature guns, there are going to be some paranoid people out there. They're going to say, "Well what does it do?" "Is it like an x-ray? Does it have radiation in it? Is i going to hit me with a needle? Like, what is it?" I think that's a very reasonable question for an employee to have. But once you've explained how it works, the employee then needs to submit to a temperature check at that point.

Nigel Ward: It's very much a reasonable direction?

Joe Murphy: Absolutely. It's a very reasonable direction.

Joe Murphy: When we start to talk about the more invasive types of thermometers, and we don't need to go where hospitals go, but we'll go where you might find, we've got one of these at home, for the girls, one that you stick in the ear. And that can be considered by some to be more accurate. So, in that scenario, I think you really do need to be very careful about forcing an employee to submit to physical contact like that. Particularly, sticking something in someone's ear, they might have an ear problem. They might have had an illness when they were a kid and one of the horrible memories they have is having a thermometer stuck in their ear every night or every hour, while the hospital or the person treating them was concerned about their temperature. There's a whole range of things that can happen, but we need to be reasonable about that.

Nigel Ward: We'll just jump onto another question while we're on this. Question is, "We've set up a hand sanitizer station ... " I'm just paraphrasing, if I can, Joe, "Hand sanitizer station. We sense one of our employees might refuse to comply using it."

Joe Murphy: Well, again, it's the same issue. Why are they refusing to use? Now, they might have a skin condition, they might have an allergy, these things are 80 percent alcohol. And they have other additives in them as well. And people these days seem to have allergies to a whole range of things, so it's really important that you're reasonable as to how you deal with your employees in relation to these things because there are things that you haven't required people to do before. And people have allergies to soap! So they find an alternative way to clean themselves or clean their hands, and you need to do that as well. So if someone has an allergy to, and it be pretty common, to an alcohol-based hand cleaner, then you need to think about alternatives. And you should start thinking about that in your plan. If you've got a lot of employees, some of them are going to have an allergy to that.

Nigel Ward: You've put cleaning up here, and I suspect there's two types of cleaning. One is just making sure that surfaces are more regularly cleaned than normal. Probably keyboards ...

Joe Murphy: Door handles.

Nigel Ward: Door handles would be a very good example. Lift buttons. Most of our clients were sort of sending somebody around with an alcohol-based cleaner, maybe a couple of times a day doing that. If you actually have a COVID-19 case, the Department of Health will actually come in. There's actually almost the industrial-standard of cleaning required, though it?

Joe Murphy: Yeah, that's right. And we've seen the photos from some of the clients, they've sent through with people in hazmat suits walking through the office with a gas gun and all sorts of cleaning materials.

Nigel Ward: We are just talking about having a cleaning regime. We had our clerk running around, before we went up to working from home, and he was cleaning any surface that people would touch, a couple of times a day at least, and sometimes more frequently. And with your cleaning regime, there's a number of reasons why you're going to have to split shifts. One of them is what we were talking about before, logistics and the increased flow of traffic and people in the workplace trying to get into the building when you're only allowed to have one in the lift, for example.

Nigel Ward: Or physically, just to have 1.5 meters distance. I can only put one person at that workstation instead of normally put two.

Joe Murphy: That's it. And then the rules around one person per four square meters. So there's a whole range of rules that we just need to be careful about, each time one of these orders coming out. But also, it means that you'll be on those split shifts, but with those split shifts, another reason for having those, is so that if someone on that shift gets sick, then there's a decreased chance that they're going to infect other people in the office or on the other shift.

Nigel Ward: Roster A gets infected, possibly going to self-isolate or go and get tested. Testing is a lot easier to do these days, and I think the isolation period after testing is 72 hours rather than 14 days, which is very positive. But if A goes down, Roster B is still operate.

Joe Murphy: That's it. And for the majority of people that are just being tested, you'll do that. You can have them working from home. So, even between those shifts, you want to make sure you've got your cleaning regime that accommodates the fact that you've got a shift leaving, and if someone happens to be ill and find out a day later or two days later, you've always got a clean office for people coming in or a clean workspace for the next shift.

Nigel Ward: So I think, in many respects, what we're really saying is back to the sort of regime we had before we left the office, when we were becoming more acutely concerned about COVID-19 infection, generally. So sort of back to that risk-mitigation approach that most people were actually adopting just before we kind of all left the office.

Nigel Ward: Lets' talk about PPE, because I think that's a good one. Do you have to have any sense about compelling people to wear masks or providing masks? Do you have view on that one?

Joe Murphy: I do. And I think that if your risk assessment suggests that you should require people to wear them, then you should do that. If you're requiring people to wear them, you should provide them, because they may not be able to buy them, because the shelves are still pretty empty, as far as I understand, when it comes to masks and other PPE. One of the other things I'll say about masks and PPEs, this same issue arises around whether or not someone has a problem with wearing one. I'm not just talking about a personal preference, I'm talking about an illness or a psychological aversion to them that has a reasonable basis.

Joe Murphy: It's really important that you do consult with these employees and find out what the issue is. And don't be dismissive of it. You can get to a point where an employee is being what you deem to be unreasonable about not wearing a mask or not cleaning their hands with alcohol-based cleaner or not complying with some other requirement, it's really important that, in a calm, collected cool way, you find out exactly what the issue is. And if you need to ask for more information, then you can ask more information.

Joe Murphy: If the person says, "Look, I have an allergy to that," you might get to a point where you're actually asking them for a medical certificate that says that because if in your workplace, the personal protective equipment is a must, or it's something that's really crucial, and someone's telling you they can't wear it, then it's important you get an evidentiary basis for the next decision you make. Which may be they're not coming into the workplace and they're not getting paid. That might be another question.

Nigel Ward: Look, there's a couple of really good questions, but I'm going to hold them over. I might let you crack on if you want to.

Joe Murphy: We've got a list of other things up here as well and I think it's really important that if you don't already have a policy in place or a procedure in place, that you do address these in your COVID-19 return-to-work plan. We're talking about, of course, a different type of return-to-work plan, but this is the COVID-19 return-to-work plan in stages. And I think it's important that you document your new protective equipment regime, what people are required to do. Don't just tell people. It is really important to put it in writing, it's really important that you consult with employees as well, because we're talking about health and safety matters and you are required to consult. I'll come to consultation in a minute.

Joe Murphy: One of the things I also wanted to factor in here, and you've already mentioned this, Nigel, is vulnerable workers. And that is people who have illnesses, compromised immune system, and there are ... like it or not, age-related problems here, as well, where people who are of a particular age, who might have one or more chronic conditions, and that is for example a 65 year old with one or more chronic medical conditions is someone who is a vulnerable worker. And you need to map your workforce and work out who those people are and whether or not you need to be doing something to accommodate them. Putting in different measures. They might be the people that you allow to work from home, they might be the people that you spend a little bit more money on, in terms of putting in accommodations and accessories that can enable them to actually return to the workplace.

Joe Murphy: You are required, under the law, to make reasonable adjustments. And that means sometimes spending a little bit of money in order to have someone return to the workplace if there's an issue around their age or their disability.

Nigel Ward: But the bottom line is, I'm going to be listing a lot more to these people in this category, because the risk is greater and therefore my response has to be a little bit more thought-through and careful. And practically, I think as well, I suspect anybody who's in this category ,who's concerned about coming back to work and has been successfully working from home, is probably going to work from home a little longer. That's my sense.

Joe Murphy: Yeah. I just want to repeat your point. This is a great class of individuals or group, this is a great group of people to start with when you're talking about a risk assessment. Because their vulnerabilities and the risks associated with these people will talk to the outer extremities of the risk. And if you can find the worst outcome and work backwards from that, then you're going to have the best outcomes from a safety perspective.

Joe Murphy: So you were talking a little bit about this, employees having concerns about returning to work, and we've already had a question about this, and if there's any others we can chuck them in here. If an employee has a reasonable concern about their health and safety and coming back to work in this environment, I'll come back to what I said before, and I've said this a few times and I'll probably say it again before the session is over.

Joe Murphy: Ask. Ask. Ask why. Find out why. If you're going to test it and ask them for evidence, start gently because you need to have a little bit more tolerance in this environment. What we have had is eight weeks of day-in day-out, 24/7 COVOD-19 figures, deaths, illnesses, nursing homes that have gone down with 60-70 people who have been infected. It' really important that you understand that people are not paranoid in an unrealistic way at the moment, it's not irrational.

Joe Murphy: It is the new norm for people to be concerned, for people to turn around and give you the the death stare when you cough or sneeze in public, as you did a minute ago when I cleared my throat. It is really important that you approach this in a very careful way each time it arises. And that's why starting the consultation with your employees, and I'll talk about in the consultation the next slide, is really important because it gets you on the front foot in starting this conversation. Not announcing, "We're all returning to work," and waiting for employees to come to you and say, "Oh I'm sorry I can't come because I'm ill," or, "I have an ill family member," or, "I'm living with my parents and my parents fall into one of the vulnerable worker categories." It's really important that you consult with your employees about this.

Joe Murphy: Employees do have a right not to be discriminated against when it comes to health and safety concerns. A bit like adverse action. Adverse action arises here as well, if someone raises an inquiry about their employment, the health and safety in their employment, they have a protection around that inquiry. So how you react to that is really important. If you react badly and you say to the employee, "You're being paranoid, don't be stupid," and you take an adverse view that they're just being difficult in a challenging time, then that can end up in any subsequent actions after that, being claims to have been adverse action that you've taken against them after that. And that's a classic scenario.

Nigel Ward: So consult. If somebody raises a specific issue, inquire into it. If it's got some legitimacy to it, don't be brutal in how you proceed. Perhaps take some advice if it is complex. If there's no special facts or circumstances arising though, most of your directions in terms of keeping the workplace safe, et cetera, probably are going to be reasonable and acceptable directions. I think that's what most people will do. Let's talk quickly about consultation.

Joe Murphy: And this is what I've said a number of times, you've got to consult with your employees. But because we're talking about health and safety, you must consult about health and safety matters. And so I've listed up here, just to get you thinking about it, your risk assessments. Don't go off and do it in isolation, don't do it on your own. Consult with your employees about those risk assessments, get them involved in the risk assessment. They don't have to hold your hand all the way through it, but talk to them about the things you are considering before you come to a final view and you end up with a list of risks and you move into your control measures around how you're going to control those risks or address those risks. Really important that you consult with your employees.

Joe Murphy: The other thing you want to consult with them more broadly is also, your employees are going to have some great ideas about the return-to-work plan. And we did this with our plan, we circulated our plan and most of our clients have done that. Circulating the plan before you finalise the plan. = Not to mention they pick up the odd typo. You can get some really good ideas from employees who have heard from their friends or just have a great idea to implement it into your plan.

Nigel Ward: We've got great questions come through, which I'm desperate to answer as much as ask, but the question is, "Got employees coming back to work, can I require them to download the coronavirus app?" This is the app... I'm not going to use word track, because it doesn't actually track you. But this is the app which allows the government to work out if you've been near somebody who's diagnosed with COVID-19. Can I require that as coming and going back to work?

Joe Murphy: No, you can't. And there are penalties for doing that.

Nigel Ward: In fact, I think it's jail time, isn't it?

Joe Murphy: There's a potential for that.

Nigel Ward: You might think that's a really sensible thing to do, encourage as much as you want to, suggest as much as you want to. A little bit of peer pressure might help. But please, be very careful. You cannot require it. There's some very stringent penalties if you do actually force somebody to download that app. So just be very, very sensitive about that.

Nigel Ward: And I've got another one coming through which I thought was really interesting. It's sort of on the other foot, "What if the employee wants to come back to work but I don't want them to come back yet?"

Joe Murphy: Well, it depends. It depends on the circumstances. So, if we're talking about coming back from a stand down or a direction that you've given them under the JobKeeper laws, or even a Fair Work direction, for stand down, and we're going to talk about , then it will depend on whether or not the time is right for them to come back at that point in time. So, is the direction reasonable to have given in the first place?

Nigel Ward: To work from home.

Joe Murphy: That's it. Or, is the stand down direction, in the first place, reasonable is? Is there now work for them to perform? One of the tests for the Fair Work stand down is that you have a stoppage of work. But if people are starting to come back to work, all of a sudden, that's undermined a bit. So you just need to be careful that you still have a lawful basis for keeping the person away from the workplace. But the other consideration is the health and safety consideration.

Joe Murphy: That is, "Is it safe for them to come back to work?"

Nigel Ward: As in commute to work and all the other things we talked about already. And the other thing I'll probably say as well to the person who asked this question, because I think it's a good question, is this is one of those moments where we really would want to look very closely what the public health order actually says. So, for instance, at the moment I have a sense that the public health is probably going to say that the next change about coming back to work is it's going to be sort of like by mutual agreement. If it's okay to come back to work, and the employer and the employee agree, I suspect that might be the first thing we see before we have more come back to work, as it were. A lot might of it might depend, you said right at the beginning about, what's written in that public health order as well. It's a good question.

Joe Murphy: It certainly is. And just before move on, I just want to say one last thing, Nigel, about the consultation with others. This can be important when you are a tenant in the building and so you still need to consult with the landlord, or whoever's managing the building, about what measures they are employing in the building and what's going to happen with a lift arrangement, and what their rules are, from a company perspective. Because their health and safety policies procedures, as they were and as they will be going forward with COVID-19, are something that you need to be across and they need to be across yours and to understand yours as well. So you still need to be engaging with these people, we need to be engaging with contractors, customers, and clients, as well, when we have this discussion.

Joe Murphy: Very early on, we talked about making sure that if we were going to see a client, that we understood what they had in place from a COVID perspective and that we had our own rules communicated to them so they understood it. And I know that when we put out a pitch document or a tender, in the front of that pitch document, it has its own section now, COVID-19 and, "These are our measures." So, it's a standard part of your health and safety, and it's likely to be a standard part of health and safety for the next 12 plus months.

Nigel Ward: And look, and I was going to move on but this is a really interesting question come through, "I've got an employee who we are worried will refuse to go to customer sites when we come back to work. What can we do?"

Joe Murphy: Well, it comes back to what we were talking about before. What are their concerns? What measures do you have in place?

Joe Murphy: Consulting with them about what those measures are, both your measures and the clients' measures. Making sure they fully understand what controls are put in place. I saw another question we had, where the client had given the sales staff face masks, gloves, and cleaner, sanitizer as well. Another one where they were talking about being given goggles to protect their eyes as well. I think if you get to a point where you've addressed their safety concerns, it then starts to get into the category of a reasonable direction. Meaning, they should do what they're told at that point in time. But you still need to be very careful, because at that point in time, if they are genuinely suffering anxiety as a result of that and it's affecting them. then it may be a situation where you've caused them an injury and they might go off in, which case they're not use to it, no use to it all if they go off work. It's a really careful situation you find yourself in when you're at the end.

Nigel Ward: So, in simple terms, you've worked hard to minimise risk at your end, you've got a clear plan, customers work hard to minimise risk at their end, you've dealt with what happens in terms of the journey to the customer. Most of the time, it's going to be a reasonable direction to go and visit the customer. There may be exceptions and that's probably when you pick the phone up and we talk through the specifics of that exception.

Joe Murphy: That's it. And I think that that conversation is really important because I think you'll find that when you talk through and map it out with the individuals, you'll find that they come to the realization that it's not so bad.

Nigel Ward: Yeah. We'll jump to this because we've been getting some interesting questions about this. I'm thinking about how we might just deal with this, in terms of how we present it. But we've we've had clients who stood people down under the Fair Work Act. Talk quickly about that. We've got people who've stood people down under JobKeeper, we've got people are now saying, "Well, I stood people down under the Fair Work Act. Can I now stop that and stand them down under JobKeeper?" And then, we've got all the other people who haven't done any of those things but they're trying to manage their business the best they can.

Nigel Ward: We wanted to touch on this because they really ask some really interesting questions. The rights to stand down under the Fair Work Act are still alive. If for some reason you need to avail yourself of them, you can. And essentially, those rights require a stoppage of work. So it's not just a slowdown in work, but an actual stoppage. It's important that you can't usefully employ the individual employee you're looking to stand down, and we've talked before about what that means, is there's no net benefit, productive benefit in the work that you can find them, if there's any work at all. And that's got to be reasonably beyond, in my words, the control of the employer.

Nigel Ward: All of that still alive and running. I suspect that as we wind back up, there's probably going to be less demand to stand employees down, but that legislation is still there. Separate to that, we've got the JobKeeper stand down direction. So if you are a JobKeeper participant, you've still got the JobKeeper stand down directions alive and well. They're very different to the Act. Again, you don't need a stoppage of work. That's the big difference. So under the JobKeeper scheme, if you can't usefully employ somebody, you could stand them down completely, or you could stand them down partially to 20 hours a week, 22 hours a week, 24 hours a week.

Nigel Ward: In other words you can stand them down to the point where you have useful work for them to do. A very different regiment, just be aware that even though we're getting back to work, all of this is still alive, it's still operating. One thing I would say, is that if you've given a stand down direction under the Fair Work Act and you're now going to bring somebody back to work, I'd say make it very clear you're ending that direction. I think it would be good to see that in writing so the employee understands that we're ending that direction. And if you stood somebody down under the Fair Work Act and you're now going to stand them down under the JobKeeper scheme, some really important rules to apply are three days of consultation. So we have a view that you don't have to bring them back to work first, you can just give the new direction, but you've got a consult. You've got to give them notice of your intention, you've got to consult for three days, it's got to be meaningful consultation, but then you could issue the stand down direction under the JobKeeper scheme. So just understand that all of the advice we've given about that in the last four or five weeks, it's still alive and running even though we're talking about coming back to work. And it's still all there if you need it. That's the important thing.

Joe Murphy: I think one of the overarching features of these stand downs feeds back into what we've been saying already today and that is trying to be as reasonable as you possibly can be and that means probably doing a little bit more than what you you would have done pre-COVID-19, that means listening to your employees a little bit more, that means giving a it little bit more time when it comes to consultation. And I think you said meaningful consultation? That's really important that you meaningfully consult with your employees. And as Nigel said, this is the JobKeeper stand down rules. Take away that need for a stoppage of work and you have that downturn, and that means as long as you're being reasonable about the stand down or the reduction in hours or the days that they're not going to be working, as long as that reasonableness is met, having regard to your business and the downturn, because now we can talk about downturn, then you're okay.

Nigel Ward: And a really an important point as well is that all of these JobKeeper directions, be it stand down or the other two directions, they're all governed by this general test. The direction can't be unreasonable in all the circumstances, there's over a hundred and fifty disputes in the Fair Work Commission already, dealing with challenges on reasonableness or unreasonableness. So please, if you're going to be issuing JobKeeper directions and you've got any anxiety about some novel feature or some concern, please, please, please get advice, because what we're seeing is a lot of pushback in relation, particularly to JobKeeper stand down directions. It's really important you get some advice on that.

Joe Murphy: "What if an employee feels unsafe?"

Nigel Ward: Yes.

Joe Murphy: Yes. And so we talked about this a little bit already, and that is if an employee feels unsafe to present for work, then the first question you might ask is, "Has the employee provided a medical certificate?" Is there a medical reason as to why they're not attending the workplace? That's not always going to be the first thing that they do.

Nigel Ward: So the really important takeaway, I think, that we want to get through here is that even if you're part of the JobKeeper scheme, if we're giving JobKeeper directions, be those directions to work from a different place, be those directions to work certain hours, all of the usual safety rules apply. They're not thrown in the bin because of some JobKeeper stuff, is it?

Joe Murphy: No. The safety rules and the ordinary rules, just about being reasonable in the workplace.

Nigel Ward: Okay. Can we quickly touch on this? Because it just worries me a little.

Joe Murphy: Yeah. Look, I think it's important, the reason we jump to discrimination in this and all the sudden, we've had this discussion about being practical and being reasonable, and now we're going to talk about discrimination which often doesn't talk to those things, it talks about being technical around the law and we'll try not to be too technical when we talk about this. But it is really important that when we give these directions, as part of the reasonableness, but also as part of not offending other laws like discrimination laws, that we're very careful about what we are taking to account or what we're not taking to account.

Joe Murphy: So, a general blanket rule about bringing people back to the workplace or and maybe not all the workplace, it might be the the roster system we're talking about, Roster A, Roster B, and Roster C, and and you might be implementing a very you well orchestrated, prepared and well thought-out, and expensive strike plan about bringing everyone back to the workplace. But if you haven't taken into account what we were talking about before, and that is vulnerable workers and people with disabilities or people with compromised immune systems, if you haven't taken them into account and you haven't taken into account that they might have family members or household members who also suffer, or might separately suffer from a compromised immune system or an illness that they are concerned about and they live with those people, then it's really important that the decisions you make from a policy perspective, in an overarching way, are not just implemented without turning your mind to that. And that's where your consultation, your engagement with the employees comes into play.

Joe Murphy: That requirement, firstly, needs to be reasonable. I've got it here at point four. But in actual fact, you've got to start with reasonable. The other three considerations are that you're requiring somebody to comply with a particular requirement or condition, the person does not always or not able to comply because of their disability and the requirement or the condition has or is likely to cause disadvantage to that person. And if you meet those requirements and the requirement is not reasonable, in terms of the overarching policy of bringing them back to work, requiring them to work in the workplace and not work from home, just a blanket view like that, can give rise to a risk that you might be offending the discrimination laws.

Nigel Ward: Particularly in this case, you used the example of somebody who has a disability. So that's a class of person, when I'm working out how to bring people back to work, I need to be far more mindful of and perhaps have something more specific and tailored in mind, in terms of the nature of their disability. Particularly, if they have compromised immune, systems, about I can't just assume that, "Well, what I'm doing for everybody is going to fit you." That's where I might fall foul of this.

Joe Murphy: That's a right, Nigel. One size doesn't fit all.

Joe Murphy: We've got, just before we move on, we do have the inherent requirements defence, if we need it, and so hopefully we don't get to that point. And I think the fact that many people have worked from home, it's demonstrated that businesses can do it.

Nigel Ward: It's very hard, therefore, to say, "It's an inherent requirement you must work in the office," if the last four weeks, the person has been highly productive working at home. It's going to be more complex, isn't it?

Joe Murphy: On the other hand, you might have a business that has gone into shutdown for the last eight weeks. And we've seen you know lots of clients which shut shop fronts and they've only got the back office running. And you might have people who work in those shops who now don't want to work in those shops, but the real reason is that, personally, they have a disability be or they've got a compromised immune system, which would be a disability for the purposes of the legislation. Or they've got a relative that they don't want to infect.

Joe Murphy: And this next point talks to that as well, because if you implement a policy that has the effect of discriminating through the connection, that is, that your employee, for example, but their relative has the disability, and I've got up here, it could be the spouse, it could be a relative, it could be someone who genuinely lives with the person on a domestic basis, then that, by proxy, you have discriminated against them. So they can still bring an action on that basis.

Nigel Ward: The big takeaway there is, if one of your employees has a disability or they're living with somebody who has a disability or they're in this high-risk category, don't assume that the one-size-fits-all approach to return-to-work is going to fit them. They might have different legal rights which need to be explored to make sure that any general policy or plan to get people back to work isn't going to put you in a high-risk position in terms of offending those rights.

Joe Murphy: That's right. And I think it's part of your consultation plan.

Nigel Ward: I had to put this in because we still get this question almost every morning and every night. So there's this general issue of the Casuals, I appreciate it. Some people think that some Casual employees have made out like bandits because of JobKeeper. I know that we're not politicians so we don't make the laws, but there is this ongoing issue of a lot of people have said, "Look, my Casual used to earn $300 a week. I'm now having to pay them $750 because it's one-in-all in with JobKeeper. Can I make them work extra hours?"

Nigel Ward: We've said consistently that you really need to look at the Modern Award they're under, you need to look at the contractual arrangement you're under. But, generally speaking, you can't demand that they work enough hours up to the $750. As a general rule, you can't do that. You just have to treat this in the normal way you would do in offering additional hours to any Casual, at any other time, and you'd have to review very carefully what the grounds for decline were. The grounds for decline might be very reasonable grounds for decline, which is, "I look after my child on that day," or whatever. So please just be very mindful that we're not living in a world that, just because all of a sudden, Bob the Casual is getting $750 a week, you can force Bob the Casual to do that number of hours.

Joe Murphy: Well, it opens up an interesting discussion. We won't get into it because we've had whole webcasts on Casuals before. But it comes down, again, to reasonableness. So, if you have a regular and systematic Casual who is getting JobKeeper, because if they're not regular and systematic, they're not getting JobKeeper, right? And that person regularly works 20 hours a week, then it's reasonable for you to require them to work 20 hours a week.

Nigel Ward: That's right.

Joe Murphy: If you've got a Casual employee who has worked regularly and systematically, for the last year at least, as the as the rules require, and you have had them working ten hours a week, and now you're trying to make them work twenty, that wouldn't be reasonable.

Joe Murphy: Because they have not worked on a regularly and systematic basis, for the last twelve months, for twenty hours, only ten hours. So is the direction reasonable? We've had a theme here today about being reasonable. I spoke to a fellow yesterday who said that two of his staff had refused to take up their casual shifts, but were getting JobKeeper. And it was really interesting to hear the story, because I immediately felt probably a little bit disappointed that had happened in, one sense, because it seemed to me that it was reasonably safe for this person to go back to work in this particular business. But, as he told me, the story evolved, that in fact the individual had some symptoms, and it's really important, and this feeds back, again, to our reasonableness, really important that you understand that the government agencies and the state governments and territory governments are giving orders like, "If you've got any symptoms, stay home." So even though, for example, the New South Wales order may not say that, Gladys Berejiklian, the Premier, this week said, "If you have any symptoms, stay home, isolate, and get tested." And so that's one of the things you will do with these employees. You've got a casual employee who's refusing to work their shifts or they say that they've got symptoms, you make sure you give them a clear requirement that they go and get tested. Because if they've got symptoms, it's a lot easier to get tested.

Joe Murphy: We had a problem when this first came out, where there were rules around the four basic symptoms you needed to have in order to get tested.

Nigel Ward: They were very constraining. I spent ten days in bed with what I think is the flu, and I couldn't get tested.

Joe Murphy: That's it. And so, that was a real challenge. Those challenges are no longer quite there. There are still some testing stations that will say, "If you don't have any symptoms at all, don't come and see us," and they'll kick you out of the line.

Nigel Ward: Yeah, just understand that you can keep asking the Casual a question but the answer is not going to change, I think.

Nigel Ward: Probably the best way to say it. Might just finish off with because we've managed to get through a lot of questions we've had asked. I've got one question I'm really dying to answer, if we can, if we have time. But I just want to let people know that there's still a lot of activity with Modern Awards. As you would know, we talked before about restaurant Modern Awards had some flexibilities put into. Clerical Modern Award. Modern Awards are still being looked at and being changed, but also, as I said right at the beginning, the union movements are getting on the front foot a little bit.

Nigel Ward: So, we'll just quickly ... There's a very large application at the moment in involving what are called Health Sector Awards. It's quite broad, it involves aged care social, social and community work, private hospitals. It doesn't involve public, that's a state world. And doctors, surgeries, and the like. And it's quite a serious claim, it's claimed for two-weeks paid leave, per occasion, effectively, when somebody has to self-isolate. But also, substantial additional sick leave for these people.

Nigel Ward: The ACTU are running it, effectively, with the unions ... I think, about ten or eleven witnesses are being called by the ACTU. We're heavily involved in the case as well, at the moment, in defending it. The case is being opposed, because we simply don't see the need for it at the moment. Particularly, on the way out, as we are.

Joe Murphy: Eight weeks ago, it would have been helpful.

Nigel Ward: Yeah, it might have been. But we also have the very strong view that most of the people who are subject to this claim, based on your risk approach, are probably taking so many precautions, they're probably less exposed to risk of contracting COVID-19, frankly, than you and I might have been walking into a supermarket four weeks.

Nigel Ward: But it's a big case and it's coming through, we'll keep you posted on that. There's been an interesting claim, in the social and community area, for disability services and that's for a 5 dollar per hour allowance when somebody is dealing with somebody who is COVID-19 positive or is suspected of being COVID-19 positive, or is required to self-isolate possibly because of COVID-19. It's been a bit of a shemozzle, this case. And I'm being serious when I say it's been a bit of a shemozzle.

Nigel Ward: Started hearing last week, we got partway through the hearing, it got adjourned. Some people, some employer groups, who were supporting it, have now withdrawn their support. It's back on in the next week or two. I don't know if it's going to sort of fold and disappear. It's possible or it might end up being argued. But that case is also being opposed and we're taking a lead role in that case as well, at the moment.

Nigel Ward: Big attempts, in the fast-food industry, to try and introduce some of those flexibilities we've done for clerical and for restaurants so far. And, out of the blue, I'm going to call them a new union. I always forget what they're called. The RAFFWU or the new shops union, not the current SDA which is the primary union in the industry, has come along and raised all sorts of objections that said it's not fair to employees. Up to that point, the SDA was agreeing to it, the ACTU were agreeing to it, and that's now gone into a bit of a tailspin, at the moment. So that one's up in the air. And I think two days ago, we finished the hearing for vehicle manufacturer repair service and retail. It's a part of the business community that's been paid pretty badly.

Nigel Ward: Bizarrely, an employer association turned up and said the changes weren't going far enough, even the changes we were trying to get through. And we're expecting the decision. I think that'll get up and that Award will get [inaudible 00:57:38]. But again, as we come out of the COVID-19 pandemic, there'll probably be some more activity in the Award area.

Nigel Ward: Currently contemplating the fact that Modern Awards, going forward, probably need to say more about working from home than they do today, and have some flexibilities around working from home. Because I suspect that, to some extent, increase working from homes are here to stay ... for some of us, at some time. I know a lot of HR directors are desperate to start to have that conversation, and a lot of CEOs are saying, "Hey we could save a lot of rent," which is a legitimate consideration for them. So, I suspect that they'll be more to be discussed in the working-from-home front, as we come out of the pandemic. We might just ... Final tips. I think they're probably the things that we'd like everybody to do right now. Encourage employees to download that app, but please be careful. Can't force them to do it.

Nigel Ward: I've done it. Have you done it?

Joe Murphy: I've downloaded it. Yeah, absolutely.

Nigel Ward: I think I said on the webcast before, I'm a ...

Joe Murphy: One of the first million?

Nigel Ward: I'm a bit of an anti-app type guy when it comes to the government, but I've done it. Let's get this thing over with. We said at the beginning, state and territory public health orders, or their equivalent, are really going to drive this. So, yes, Prime Minister is going to tell you what's generally going to happen. But, in terms of how its given effect to and the real language that's important, you've got to wait for those public health orders to come out. When they come out, we'll let you know real quick.

Nigel Ward: I think Joe's made the point, consultation and reasonableness is really the key ... as you bring people back to work, more than anything else. And, importantly, that Joe's made, I think, which is really excellent, is look, don't assume one-size-fits-all. Think, if you're dealing with people with disability, you're dealing with people in that vulnerable group, one size may not fit all. Generally, though, if you've dealt with those types of individuals, you've considered individual needs, I suspect most of the directions you're going to give about coming back to work, as long as you've thought about the work environment, getting to work, et cetera, are going to be reasonable and lawful directions. And I think that'll be the key.

Nigel Ward: And, as always, if you do get into trouble with any of these issues or you are struggling to sort of deal with those more complex cases, please pick the phone up and ring us, and we'll take you through it.

Joe Murphy: I think, just on this last point about encouraging employees to be sensible in their personal time, we still get lots of questions about managing employees in their personal time, and whether or not you can do it. I think, obviously, with the same approach that we've advocated throughout today's session, a sensible consultative approach, being understanding about what people need to do, but also understanding that employees should still conduct themselves appropriately in public. And you can still have some degree of concern about what they're doing in their own personal lives. But let's be a little bit nicer about it at this time.

Nigel Ward: We've run out of time, but I'm desperate to ask one last question, if we can. Because this one is just fascinating. "We have stood down employees due to retail outlet closures," I assume it's a retail shop, "With retail opening back up, do we have a choice of when these employees return to work, i.e., can we delay a return?" It's a very complicated issue and it will depend on what basis you stood people down, in the first place. If you stood them down under the Fair Work Act, it's probably going to be more difficult to continue that stand down, because the stoppage of work outside of your effective control, probably, is starting to cease. That is, government have said retail shops can open up again, so that stoppage of work might have gone.

Nigel Ward: If you stood people down under the JobKeeper scheme, I suspect you've got far more flexibility about phasing them back in or not back in, because you don't have to have that stoppage of work rule.

Nigel Ward: Complicated question, but it really will depend under what set of rules you actually stood them down, in the first place. Whether or not you can or can't, as you put it, delay a return. And I suspect that means choosing whether or not to open the shop up now or a little bit later on. I'm deeply disappointed in my local coffee shop. I went down today and I said, "You opening on Friday?" I said, "Book me a table." And they said, "No, Nige, we won't have our supplies back up and running for 2 or 3 days." So, I have to wait till Monday to go and patronize my local coffee shop, but we'll be there. I think as we said all along, this is probably the beginning of the conversation out now.

Nigel Ward: We'll take on board all of the questions people are putting to us ... day to day. I think we've got another one coming up, another webcast coming up in a couple of weeks, and I think we'll be better prepared at that stage to talk in, probably, more detail, with more experience about what to do. But in the meantime, as we've said all along through this, please stay safe. If you do need to call us, please call us. So stay well and please take care.

 
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