In the employment landscape, COVID-19 has proven to be a massive mountain. Without the knowledge to navigate this terrain, employers and employees alike are struggling with the situation at hand. In order to assist you with this situation, we have collated a list of common questions that are arising in employment law at this time, alongside answers.
If my business is forced to shut down, do we need to pay our employees?
The Fair Work Act 2009 (Cth) states that an employer can only stand down staff without pay if they cannot be a useful and productive employee due to a stoppage of work that the employer cannot reasonably control or be responsible for. Leave entitlements should continue to accrue during this shut down for the employees. This is because during the shut-down period, the employment relationship is -in effect- frozen or suspended.
An Employee has contracted, has been exposed to COVID-19 or is a personal carer in the home where someone is ill or experiencing an emergency due to COVID-19. Can the employee use their Personal Leave?
Personal or ‘compassionate’ leave entitlements are available to part-time and full-time employees. For casual employees, there is no entitlement to any paid leave, however, they may be entitled to two days of unpaid leave for personal/compassionate circumstances. Full time and part-time employees can take up to 10 days of paid personal/carer’s leave per year and two days of compassionate leave for each occasion. In these times of the COVID-19 virus, personal or compassionate circumstances can come to include a school shut-down where an employee must stay home to tend to their children or an unexpected emergency in the home where someone (the employee or someone else) is ill or exposed to coronavirus.
An Employee is forced to self-isolate due to recent travel or is voluntarily self-isolating, but is not actually ill or injured. What do I do as an Employer?
Under the Fair Work Act 2009 (Cth), there is no specific guideline for these circumstances. Due to this, it is best for an agreed arrangement between an employer and the employee to be implemented. Considerations such as whether the employee can work remotely from home or if not, should they access accrued annual, long service or unpaid leave, should be contemplated.
Can an Employer direct an employee to take annual or long service leave?
A shutdown means that a business is operating in a reduced capacity and cannot operate in any significant way. In a shutdown of business operations, employees can be directed to take annual leave by their employer. For award-covered employees, for example, clerical staff, eight weeks’ notice must be given of forced leave. In New South Wales and Western Australia, employers can also direct employees to take long service leave, but only with a month’s notice. Other States necessitate between two and three months’ notice and in Tasmania, the whole policy of directing employees to take leave is disallowed.
As an employer, if you cannot provide written notice, it is vital that you instead come to an agreed arrangement with your employee, otherwise, you may be breaking the current laws.
If you require any further assistance in relation to your employment entitlements during this pandemic and beyond, feel free to contact our team of experienced commercial lawyers by clicking here to submit an online enquiry form. Alternatively, you can call us on 1300 QUINNS (1300 784 667) or on +61 2 9223 9166 to arrange a teleconference or appointment.