The COVID-19 outbreak has caused many brick-and-mortar stores, offices and even large corporations to commit to either a partial or total shutdown of operations. The uncertainty that the COVID-19 scourge brings is a striking concern to employers in these precarious times where major economies are being disrupted and suffering as a result. Trying to navigate your way as an entrepreneur/business owner in a dwindling economy can be down to finding what is now the “holy grail” for entrepreneurs — pivoting one’s business to adapt and stay afloat of the current situation. However, once business activities return to normalcy, you might want to consider some legal tips in a few possible instances to avoid complications arising from COVID-19 induced changes to Australian Employment Law.
Under the relevant employment laws guiding workers health and safety, every employee must take steps that are reasonably foreseeable to safeguard their employees from workplace hazards, and this includes health complications like the COVID-19. While there might be no specific obligations imposed on the employer to fulfil, there is, however, a minimum threshold responsibility is rooted in employment laws giving the employer necessary steps to curb the spread of the virus in the employer’s workplace like:
When an employee that is not a casual employee contracts the virus, such an employee is entitled to access their paid/sick leave under the Fair Work Act 2009 (Cth) (FW Act), which accrues progressively at the rate of 10 days per year. In the same vein, if a parent employee is forced to tend to their children as a result of a school shut down, they can always access the paid carers leave.
The Fair Work Act does not provide for cases where employees have been found to possess health risks and need quarantine. However, the Fair Work Ombudsman in Australian Employment Law has published guidance on how to deal with a quarantine case of an employee. It stipulates that the employee shall be entitled to their paid sick leave if they are medically unfit for work or seriously ill. There is also the option of the employer directing an annual leave for the employee. This directive must be reasonable in the circumstances and comply with any pre-existing contractual obligations, usually the employment contract. Flowing from this, it becomes cogent that employers take time to review extant “working from home policies” to ensure employee accountability and productivity.
The Fair Work Act does not make provisions for this situation. Still, the Fair Work Ombudsman has provided that in a case where an employee chooses to self-isolate, he must inform his employer or take out a sort of leave entitlement to that effect. There is also the freedom of the employer to assess the situation and see whether the employee’s concerns are reasonable in the circumstances to avoid abuse of the benefit.
Pursuant to the terms of the applicable employment contract, in employment law, an employer is given the power to order employees to stay at home without remuneration under the “stand down clause” in section 524 of the Fair Work Act 2009 owing to the following reasons:
*The incident of COVID-19 is most likely to trigger Paragraph 3 stated above. Paragraph 3 falls under the employment law doctrine of force majeure, which is when an unforeseeable circumstance supervenes on an existing contract and frustrates it to the point where parties to the contract are unable to fulfill their obligations. However, it must be noted that employers can only trigger the “stand down clause” when it has become a stark reality that the employees cannot be gainfully under his service, and the employer cannot stand to benefit any sort of “benefit or value for work” from the employee. However, there are other viable alternatives under Australian employment law to standing down employees. An employer can always request that employees take annual leave or long service leave, request an unpaid leave, and negotiate a reduction in working hours and remuneration.
