COVID-19 - Key issues Employers need to consider
Below are some of the issues that Employers will need to consider during this time.
Stand down provisions
The Fair Work Act 2009 (Cth) (‘FWA’) contains stand down provisions allowing an employer to stand down an employee if the employee cannot be usefully employed due to a stoppage of work for a cause the employer cannot be held reasonably responsible.
Employers may be able to utilise the provisions contained in the FWA in circumstances where Government directives close all or part of the business, or where there are direct consequences for a business as a result of Government directives to clients of the business (supply chains and clear associated contractual relationships) which result in a stoppage of work.
There may also be other circumstances where the stand down provisions can be used – but stand down provisions need to be carefully assessed on a case by case basis before applying them, and employers must also consider all relevant industrial instruments such as awards, enterprise agreements and contracts of employment.
When the stand down provisions were drafted, consideration was not necessarily given to impact of a worldwide pandemic. Because of this, the stand down provisions can be technically difficult to interpret when applying them to the effects of COVID-19 on a workplace. Accordingly, legal advice is essential.
Every employer should be currently assessing their business for a potential general lockdown and the consequential potential use of the stand down provisions in the FWA, including the flow on implications to employees. If you are uncertain about this, please contact one of our lawyers who are here to answer your questions.
Working from home
Directing or agreeing with an employee to work from home is an effective way to implement social distancing in the workplace and/or to relocate employees who can continue to be usefully employed if your business is required to shut down.
In accordance with the Work Health and Safety Act 2011 (Qld), employers are required to ensure a safe work environment for employees, including working from home environments. Employers are obliged to ensure a documented risk assessment is conducted of the proposed work environment in the employee’s home. Employers should consider the most effective risk assessment approach. Having a Working from Home Policy in these instances can always assist. If you do not already have a Working from Home Policy we recommend that you put one in place if you believe your workplace, or some of your employees, will eventually be working from home. Aitken Legal can assist you with this policy.
Employers must also take out an accident insurance policy with WorkCover Queensland where they are having employees working from home.
Workplace Health & Safety
All employers have an ongoing obligation to do everything reasonably practicable to ensure the health and safety of employees and others in their workplace. As mentioned above, this obligation continues where employees are working from home.
Where employees continue to attend the workplace, employers have an obligation to put in place measures for social distancing and hygiene and to remove or manage any risks so as not to expose employees unnecessarily to the risk of contracting COVID-19.
Safe Work Australia has specific advice for employers regarding COVID-19. This information and guidance tool can be accessed at www.safeworkaustralia.gov.au.
Annual and long service leave entitlements
Employers and employees may agree that the employee can take some or all of their accrued entitlement to annual leave or long service leave (‘leave entitlements’). An employer must not direct an employee to take leave entitlements unless it is done in compliance with threshold requirements and notice provisions in the relevant industrial instrument or contract of employment. Many of these threshold requirements or notice provisions require legal advice so employers should not hesitate to seek that advice.