Coronavirus Implications for Employers & Employees


This article was written by Andrew Crayshaw for Crayshaw Consultants.


Hi all, despite the significant human health toll that coronavirus will inflict, this email will look solely at the employment law ramifications. 

First of all, the best place to stay on top of all developments is the Fair Work website.

As I write, the most relevant article for most employers is the leading link on their site.

The article on the above link is very detailed but it is an excellent starting point for many concerns. Below is some of the key issues at the moment – it isn’t possible to cover everything.

Whilst care has been taken putting this information together you should always consult further before taking any course of action.

General advice only, please ensure you consult directly with a trusted advisor to discuss your individual circumstances. A lot of these matters can have significant grey areas so it is always best to consult with either Fair Work (13 13 94) and/or an employment law firm and/or an industry body.

Part Time and Full Time staff

 Generally have contracted hours that are required to be paid each pay period.

These hours usually cannot be changed without agreement from both employer and employee.

Can I cease the employment of a Part Timer or Full Timer because trade is now very quiet?

Generally, if it’s within the first 6 months of employment (for large employers) or 12 months of employment (for small employers) then you can cease employment by providing the applicable notice (usually 1 week).

A small employer employs fewer than 15 employees
https://www.fairwork.gov.au/ending-employment/unfair-dismissal

 
An employer might need to make some employees redundant.

Again, there are different rules for “large” employers vs employers of fewer than 15 staff.

Employers of fewer than 15 staff are often exempt from paying redundancy pay (but they still need to give / pay the required notice).

https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/minimum-workplace-entitlements/notice-of-termination-and-redundancy-pay


Can I stand down certain staff or force them to take leave while we are so quiet due to coronavirus?

We don’t believe so – as per the cut and paste below which is taken from the Fair Work site;

Standing down employees without pay is not generally available due to a deterioration of business conditions or because an employee has the coronavirus.

 

Annual Leave needs to have the agreement of employee and employer.

There can be different rules if an employee has “excessive” Annual Leave;

https://www.fwc.gov.au/awards-agreements/awards/modern-awards/modern-awards-fact-sheets/excessive-annual-leave-accruals

 

 

Are there any other options available?

Some awards have a clause allowing for an employer to shut down or close down for a period of time.

It may be that you could give notice for an upcoming shut down due to the downturn caused by coronavirus.

For example, the Restaurant Industry Award clause 35.3 says;

An employer may require an employee to take annual leave as part of a close-down of its operations, by giving at least four weeks’ notice.

Similarly the Hospitality Industry General Award clause 34.3 says;

An employer may require an employee to take annual leave by giving at least four weeks’ notice as part of a close-down of its operations.

The Registered and Licensed Clubs Award and the General Retail Award both have a clause in them in line with above.

To check any other awards go to the following link and enter your industry / award;

https://www.fairwork.gov.au/leave/annual-leave/directing-an-employee-to-take-annual-leave/direction-to-take-annual-leave-during-a-shut-down#

Once in a shut down situation then we believe you only are required to pay any entitled Annual Leave.

We’re not sure if there are any limits to how long you can stay in shut down.


What about if I’m forced to close by a government directive?

Then this we believe will probably put you into the shut down / close down situation above.

In this situation you would normally only be obliged to pay any accrued Annual Leave owing to Part Time and Full Time staff.

You can always agree to go beyond this (EG paying Annual Leave in advance) but we’re not sure of how that would play out if an employee then resigned.

If this were to eventuate I would expect Fair Work to put up specific advice on their website so a reminder to keep checking the site;

https://www.fairwork.gov.au/

It goes without saying that none of this is us suggesting that you take any particular action.

Many businesses consider themselves one big family where the employer looks out for their employees and the employee their employer.

However, we are very mindful of the extraordinarily difficult economic circumstances on the horizon and so need to give a summary of some of the options available.

Carer’s Leave

An employee decides to keep their well child home from school where the school is not closed?

Usually not Carer’s Leave but they might contact their employer about work from home or paid or unpaid Annual Leave

An employee is not able to get care for their child as school has closed?

Could be considered to be a “family emergency” and so yes Carer’s Leave could apply.

It might even apply through school holidays if vacation care options are not available.

The usual rules on Carer’s Leave would still apply – see link below for more info;

https://www.fairwork.gov.au/leave/sick-and-carers-leave/paid-sick-and-carers-leave

Please keep referring to the Fair Work website for more information on the Carer’s Leave situation.



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