Coronavirus (COVID-19) Updates, Guidance and Resources

Coronavirus (COVID-19) Updates, Guidance and Resources

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Click the links below to jump to past Coronavirus (COVID-19) updates:

7 August – Further Changes to JobKeeper Eligibility
28 July – Update: Fair Work Commission decision to provide Paid Pandemic Leave
24 July – Update: Changes to JobKeeper Scheme
8 July – Pandemic Award Flexibility Extended
3 June – Rising Number of Unfair Dismissals Under COVID-19
8 May – Return to School of ‘At Risk’ Staff
7 May – COVID-19 Resource Kit by Safe Work Australia
1 May – Changes to JobKeeper Scheme
30 April – Emergency Staffing Options for Residential Out of Home Care Sector
28 April – Key Issues for RI & PJP Schools Q&A
27 April – Important Changes to Schools: General Staff Award
17 April – Signing Contracts During COVID-19
9 April – Awards Varied to Provide Unpaid Pandemic Leave and Annual Leave at Half Pay
9 April – Jobkeeper Changes Legislated For Eligible Employers
8 April – RI & PJP Schools Support Staff Arrangements
3 April – Modern Awards to be Varied
2 April – How Will COVID-19 Affect Easter Pay?
1 April – Essential Workers Still Required to Travel for Work
31 March – Government Announces Wage Subsidies to Save Jobs
31 March – Summary of COVID-19 Legislative and Award Variations
31 March – Top Tips to Transition to the Home Office
30 March – NSW Office of the Children’s Guardian extends WWCC clearances
30 March – Important Updates to Clerks Award
27 March – Slow-Down v Stoppage: What Are Your Options?
26 March – Changes to NSW Long Service Leave Legislation
26 March – Working from Home Template Policy
25 March – Shutdown of Workplaces
25 March – Hospitality Award Varied to Provide Additional Flexibility
19 March – Medical Clearances
16 March – Self Isolation
4 March – Have a Plan

 


7 August 2020 Update – Further Changes to JobKeeper Eligibility


In response to stricter stage 4 restrictions introduced in Victoria, the Morrison Government has today announced a further revision to the JobKeeper eligibility threshold.

Treasurer Josh Frydenberg today announced that the Government had set aside an extra $15.6 billion for JobKeeper. Mr Frydenberg said he expected $13 billion of the money to flow to Victoria, however, the changes will apply across the country, meaning some businesses in other states will qualify.

Having initially outlined the JobKeeper extension guidelines on 21 July, the Government is now relaxing some of the eligibility requirements. Previously businesses would have needed to assess their JobKeeper eligibility based on GST turnover in the June and September quarters. Businesses will now only need to be down on GST turnover for the September quarter.

In a further change, employees will also only need to have been ‘on the books’ since 1 July, a shift from 1 March.

If you have any questions, please get in touch with our Employment Relations Specialists on (02) 9390 5255 or enquiry@ccer.catholic.org.au.

Disclaimer: CCER does not give legal advice and this information should not be taken as such.

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28 July 2020 Update – Fair Work Commission decision to provide Paid Pandemic Leave


Aged Care Award, Nurses Award and Health Professionals Award to be varied for paid Pandemic Leave.

The Fair Work Commission decided on Monday that it would introduce paid pandemic leave for employees in the aged care sector covered by the Aged Care Award 2010, the Nurses Award 2010 and the Health Professionals and Support Services Award 2020.

Read the full update here.

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24 July 2020 Update – Changes to JobKeeper Scheme


Following a Treasury review and community pressure, the Australian Government has this week announced highly anticipated changes to the JobKeeper scheme.

Changes announced on Tuesday include extending the program from the initial end date of 27 September 2020 to run for an additional 6 months until 28 March 2021 and reducing the flat rate of payments.

From 28 September, payments will be made in two tiers based on the number of hours that employees worked before the pandemic.

Read the full article here.

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8 July Update – Pandemic Award Flexibility Extended


Many CCER members have encountered workforce issues as their operations are affected by COVID-19 and the resulting public health orders by State and Federal Governments. The following article discusses extensions to several variations.

In light of the ongoing effects of the COVID-19 pandemic, the Fair Work Commission (FWC) has extended temporary variations previously made to most Modern Awards to provide continuing flexibility in the workplace.

Read the full article here.

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3 June 2020 Update – Rising Number of Unfair Dismissals Under COVID-19


Unfair dismissal claims and stand down disputes are rising under COVID-19 and the Fair Work Commission may take longer than usual to process the increased load.

The Fair Work Commission President Justice Iain Ross revealed recently that the Commission has requested extra resources to deal with a record spike in unfair dismissal claims, which have increased by 70% compared to this time last year. The overall caseload has also grown by 40%, with stand down disputes having quadrupled and general protections cases seeing a 20% rise.

Justice Ross also highlighted that voluntary settlement of matters had declined, perhaps reflecting the difficult circumstances people are facing and the biggest challenge for the Commission would be handling an increased number of claims getting to the hearing stage.

The Commission advises the process may take longer than usual due to higher number of claims and the added restrictions within the Commission.

The FWC have also released information on how the COVID-19 situation is impacting how they deal with unfair dismissal applications. They have established a working group to formulate a plan and reallocated resources to case management and conciliation of the dismissal claims.

Unfair Dismissal in a Nutshell

Under the Fair Work Act 2009, a person has been ‘dismissed’ when their employment has been terminated at the initiative of the employer or they have been forced to resign because of the conduct or course of conduct engaged in by the employer. Employees who meet the relevant eligibility criteria, such as the minimum employment period, must lodge an application within 21 days of the dismissal. A dismissal will be ‘unfair’ when an employee has been dismissed without a valid reason in a ‘harsh, unjust or unreasonable manner’.

How CCER Can Help

While the best time to seek advice is prior to making any decision to terminate, if you do receive a claim or dispute which has been lodged in the Commission, we recommend you get in touch with CCER so we can assist you.

Disclaimer: CCER does not give legal advice, and this information should not be taken as such.

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8 May 2020 Update – Return to School of ‘At Risk’ Staff


On 28 April, CCER circulated a Q&A document to RI & PJP schools which advised how to manage staff considered to be at greater risk of more serious illness if they were to be infected with COVID-19.

CCER’s advice was that staff who fell into this category should be permitted to work from home. This was at a time when most students remained at home and there was scope for staff to perform their duties from home. We did, however, highlight that as schools returned to face to face teaching, there would be a greater likelihood that teaching could no longer be done from home.

With the planned transition back to face-to-face teaching, across the school sectors, we have had enquiries as to the approach that should now be taken with this group of employees, including pregnant employees.

While individual circumstances mean the approach taken from school to school may vary, the following outline of how we understand most schools (including systemic schools) will be approaching this situation may be beneficial to guide your approach:

  • At the point at which there is a resumption of face-to-face learning, staff (particularly teaching staff) are no longer able to work from home.
  • Staff who wish to return to school, who are known to be at greater risk will require medical clearance to physically return to school.
  • Staff known to be at greater risk who do not have a medical clearance or who indicate it is not safe to return to school may request to access paid personal/carer’s leave. Where this is not available, they may request long service leave or leave without pay.
  • In conjunction with a request to access leave, staff should provide a medical certificate stating the nature of the at-risk factor, confirmation that it places them at greater risk, and the period for which they will be unable to attend the workplace.
  • Schools may consider granting approval for such leave requests for a certain period (e.g. up to the end of Term 2) with a further review to take place at that time.

If you would like more information about the above, please contact our Employment Relations Specialists on 9390 5255 or email enquiry@ccer.catholic.org.au.

Disclaimer: CCER does not give legal advice, and this information should not be taken as such.

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7 May 2020 Update – COVID-19 Resource Kit by Safe Work Australia


The Federal Government this week outlined its thoughts on what a return to the workplace might look like.

In doing so it referenced a rebuild of the SafeWork Australia website and the release of a comprehensive COVID-19 resource kit. Resources include infographics, fact sheets, checklists and other workplace tools which may be useful for our members.

This resource is tailored to particular industry sectors and for businesses large and small. It includes advice on social distancing, hygiene, cleaning and personal protective equipment and may provide a head-start for employers needing to safely reanimate their particular business.

Click below to go to Safe Work Australia Resource Centre.

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1 May 2020 Update – Changes to JobKeeper Scheme


CCER provided information on the JobKeeper scheme on 9 April 2020. On 24 April 2020, the Australian Government announced further changes will be made to the eligibility rules for JobKeeper Payments which may be relevant to some of CCER’s members:Anchor

  • The changes will allow for religious practitioners of religious institutions to be eligible to receive JobKeeper Payments (excluding those that are students only) while recognising that many religious practitioners are not employees of their religious institutions. A religious practitioner for the JobKeeper Payment is a minister of religion or a full-time member of a religious order.
  • Full time students who are 17 years old and younger, are only eligible for the JobKeeper Payment if they are financially independent.
  • The ‘one in, all in’ principle has been clarified, which requires that once an employer decides to participate in the JobKeeper scheme and their eligible employees have agreed to be nominated by the employer, that all eligible employees are included in the JobKeeper scheme, irrespective of whether or not an employee is undertaking work or has been stood down by their employer. An employer cannot decide which eligible employees will participate in the JobKeeper scheme and receive JobKeeper payments.
  • Employing charities registered with the Australian Charities and Not-for-profits Commission can elect to exclude government revenue from the turnover test.

Please note that as at the date of this article, these changes have not been enshrined in the Government’s JobKeeper Rules and the ATO has not varied its online advice. CCER members are advised to monitor the ATO website for updates.

CCER recommends that members check with your finance officer or adviser to see if you are eligible to access the JobKeeper scheme and to contact the ATO if you are uncertain about the eligibility of certain employees.

Click here to see the updated Treasury fact sheet for employers re the JobKeeper Payment.

Click here to see the Treasury FAQs about the JobKeeper Payment.

Disclaimer: CCER does not give legal advice, and this information should not be taken as such.

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30 April 2020 Update – Emergency Staffing Options for the Residential Out-of-Home Care Sector


CCER is aware of staffing challenges faced by some members in the residential out-of-home care sector as a result of COVID-19 which are not contemplated by the Social, Community, Home Care and Disability Services Award (SCHADS).

For example, the hours of work and rostering provisions of SCHADS may not facilitate the rostering of a limited number of staff to support a child or young person who is required to be quarantined while awaiting the results of COVID-19 testing.

The Association of Children’s Welfare Agencies (ACWA) and the Australian Services Union (ASU) have jointly developed two template Individual Flexibility Agreements (IFAs) with 12-hour and 24-hour rostering arrangements for such situations in the residential out-of-home-care sector.  The process was facilitated by the Fair Work Commission and included consultation with the Department of Communities and Justice (DCJ).

As well as extended shift options, the IFAs provide related entitlements and new allowances, which recognise the need to minimise contact between clients and different employees working in residential care homes, and the additional risks posed to employees’ safety and wellbeing during this period.

Template IFAs have been designed to temporarily vary the effect of SCHADS and contain detailed provisions, including:

  • 12-hour (7 days on/7 days off) or 24-hour (3 days on/4 days off) rostering arrangements
  • A 15% COVID-19 allowance (calculated on the base rate of pay) for employees who provide support to children or young people who meet the case definition for COVID-19 testing or the definition of ‘close contact’
  • Payment of overtime in accordance with the normal provisions of SCHADS, i.e. after 10 hours per day and 38 hours per week
  • A requirement that overtime, penalty rates, allowances and other entitlements are calculated on the employee’s rate of pay inclusive of the 15% COVID-19 allowance
  • 20 days paid special leave if the employee is required to be absent from work as a result of self-isolation or quarantine, or needs to care for a sick family member or for their child/ren due to the closure of schools or caring facilities
  • The incorporation of the Guidelines into the IFA, which deal with a range of matters on safe systems of work including consultation with employees and the ASU, training and support, workplace cleanliness and hygiene, risk management and PPE and first aid
  • A requirement for the employer to take reasonable steps to ensure that the employee understands the IFA, including providing the employee with the contact details of the ASU.

It is voluntary for employees to enter into the agreed COVID-19 IFA.

Once agreed to, the IFAs remain in force while public health orders relating to COVID-19 are in operation.  They can be terminated by either party earlier with 13 weeks’ notice.

While CCER cannot advise on funding arrangements, we understand that applications can be made to the DCJ for supplementary funding and reimbursement for reasonable costs associated with having to take emergency action in response to COVID-19, including costs related to implementation of the model IFAs.

Further information is available here on the ACWA website.

Members are advised to contact the DCJ to discuss and clarify any funding issues.

For help or to discuss the model IFAs further, please contact our Employment Relations Specialists on (02) 9390 5255 or by email to enquiry@ccer.catholic.org.au.

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28 April 2020 Update – Key Issues for RI & PJP Schools Q&A



As schools move towards a graduated return to face to face teaching, CCER has put together a Q&A guide to some of the key employment issues which RI & PJP Schools may be facing at the commencement of Term 2. Click here to view the Q&A guide.

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27 April 2020 Update – Important Changes to Schools – General Staff Award


Many CCER members are encountering workforce issues as their operations are affected by the COVID-19 pandemic and the resulting public health orders by State and Federal Governments.

Those members with staff covered by the Educational Services (Schools) General Staff Award 2010 should note that the Fair Work Commission (the FWC) has temporarily varied the Award to provide employers and employees with greater scope to respond to the effects of the COVID-19 pandemic. The changes are intended to facilitate keeping employees in work where an employer is experiencing a significant downturn in operations.

This decision does not apply to general or support staff that are covered under the terms of an enterprise agreement. However, it may apply to the following employees:

  • Boarding staff in systemic schools and some independent schools.
  • Non-teaching staff in early childhood services attached to schools.
  • Allied health professionals in schools (such as psychologists, speech therapists etc).

If you are unsure of whether this decision applies to your organisation, please contact CCER for advice.

The changes to the Educational Services (Schools) General Staff Award 2010 mean that employers may:

  • Direct employees to work a reduced number of hours for a temporary period.
  • Direct employees to work across classifications.

These changes take effect from the first full pay period starting on or after 24 April 2020. They are currently in place until 1 August 2020, although the possibility of extending them has already been noted by the FWC.

The variation to the Educational Services (Schools) General Staff Award 2010 is contained in a new Schedule J to the Award and provides as follows:

Reduction in Hours

  • An employer may issue a written notice of intention to full-time and part-time employees, directing an employee to temporarily reduce ordinary hours for a specified period.
  • Immediately after issuing a notice of intention the employer must discuss the reason for the direction with the employee (or their representative) and must notify the Independent Education Union.
  • The direction comes into effect 5 days after the notice of intention is issued to the employee and remains in force for no more than 12 weeks.
  • The reduction in working hours is limited to a 25% reduction or less.
  • A full-time employee directed to work part-time retains their substantive full-time position.
  • Where hours are reduced, the employee’s ordinary hourly rate will stay the same.
  • Employees will still accrue annual and personal/carer’s leave and any other Award accruals based on their previous ordinary hours of work.
  • Any paid personal/carer’s leave or annual leave taken will be paid based on the employee’s ordinary hours of work prior to the reduction in hours. Please note that there are separate provisions covering payment during non-term time which is not covered by annual leave.
  • Any redundancy payment will be made at the employee’s ordinary hours prior to the issuing of the direction.

Changing Employee Duties

  • Employees can be directed to perform any duties that are within their skill and competency (even if they are lesser duties) regardless of their classification, provided the duties are safe and the employee is licensed and qualified to perform them.
  • The employee’s pay must not be reduced.
  • Where employees are directed by their employer to perform duties at a higher level than their substantive classification, the higher-level classification rates of pay will apply.

 

Any dispute regarding the operation of the Schedule may be referred to the FWC.

The FWC’s determination varying the Award can be found here.

The full Award can be accessed via the CCER members website.

For help or to discuss this further, please contact our Employment Relations Specialists on (02) 9390 5255 or by email to enquiry@ccer.catholic.org.au

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17 April 2020 Update – Signing Contracts During COVID-19



The impact of COVID-19 has forced many employers to operate differently as a result of the community’s response or to ensure adherence with Government public health restrictions. However, it’s not that easy in a time of working from home and social distancing for contracts of employment, or variations to be printed, signed and witnessed by others.

If a document is not properly signed it might not be binding on the parties. Generally speaking, an agreement can be in electronic form and executed electronically.

Please note this article does not consider certain types of formal documents (such as Deeds of Release) where advice will always be required about what is required to ensure valid execution – electronic or otherwise.

Contracts and Electronic Signature

For an employment contract to be legally binding, there must be three elements: an offer, acceptance, and consideration. If any of these elements are missing, the contract will not be legally enforceable.

As for using an electronic signature as an acceptance of a contract, the Electronic Transaction Act 2000 (NSW) contains three standard criteria that need to be satisfied to ensure the signature is valid:

Identity – The method of signing must identify the person sending the information, and to indicate the person’s intention to be bound by the transaction.

Reliability – Having regard to all of the circumstances of the transaction, the method is as reliable as is appropriate for the purposes of the electronic communication.

Consent – The person to whom the signature is required to be given must consent to the method of the electronic communication.

In view of this, sending an employment contract (or contract variation) via a company email to an employee or prospective employee’s email address for signing would satisfy the requirements. The email would make it clear that the contract is being sent by the employer with the intention of entering into or varying a contract of employment. This method is appropriate and reliable for the purposes of entering into or varying an employment relationship.

Prior to the contract being sent by the employer, it is expected that there has been a discussion surrounding the contract being sent electronically. If the other party does not object to receiving the contract this way, it can be reasonably assumed that there is implied consent on their behalf and that the agreement will be binding.

Other Options

While electronic signature is one method employers may adopt to formalise agreements during these challenging times, there are other options available:

  • It is not uncommon for home printers to have scanning functions, so there may still be the ability for employees to print, physically sign and return documents by email or by post.
  • Alternatively, for those with printing facilities, an option is to print the contract, physically sign and return it by taking a photo from their smart phone and emailing back.

Finally, where these options are not available, it is sufficient for a contract to be returned by the other party with written confirmation (e.g. a cover email) stating they accept the terms and conditions of the contract.

Witnesses

When it comes to having a witness, while it is good practice to have a written contract of employment signed by witnesses, the absence of a witness signature would not make a contract void. However, one advantage to having a witness sign a contract is that this may put an employer in a stronger position if there is ever a dispute as to whether terms and conditions contained in the contract were agreed to.

If you would like more information about the above, please contact our Employment Relations Specialists on 9390 5255 or email enquiry@ccer.catholic.org.au.

 

*Disclaimer: CCER does not give legal advice and this information should not be taken as such. 

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9 April 2020 Update – Awards Varied to Provide Unpaid Pandemic Leave and Annual Leave At Half Pay


The Fair Work Commission has varied 99 modern awards to provide an entitlement to unpaid pandemic leave and the ability to take annual leave at half pay.  These provisions will provide additional workplace flexibility to respond to issues arising from the COVID-19 pandemic.

The variations operate from 8 April 2020 until 30 June 2020.

The variations are included in new Annexures to each modern award entitled Additional measures during the COVID-19 pandemic.  You can access your updated modern award here.

A summary of the new provisions is set out below.

Unpaid Pandemic Leave

  • All full time, part time and casual employees are entitled to up to two weeks’ unpaid pandemic leave if they are required, by government or medical authorities or acting on advice of a medical practitioner, to self-isolate or are otherwise prevented from working by measures taken by government or medical authorities in response to the COVID-19 pandemic.
  • Employees are required to give notice of the taking of the leave as soon as practicable and can be required to provide evidence that the leave is being taken for the prescribed reasons.
  • Pandemic leave does not affect any other paid or unpaid entitlements and counts as service for the purposes of entitlements under the award or National Employment Standards.
  • The unpaid leave is available in full immediately and the leave must commence before 30 June 2020 (but can end after that date).
  • The unpaid leave is available in full to all employees, it is not pro-rated for part time or casual employees.
  • It is not necessary for employees to exhaust any other paid leave prior to accessing unpaid pandemic leave.
  • The two weeks’ unpaid leave does not operate on a per occasion basis, the total entitlement available is two weeks’ leave.
  • An employer and employee may agree that an employee takes more than two weeks’ unpaid pandemic leave.
  • The leave does not provide an entitlement to employees caring for others who are compelled to self-isolate. Personal/carer’s leave may be available in those situations.
  • The JobKeeper payment will be payable to eligible employees who are on unpaid pandemic leave.

Annual Leave at Half Pay

  • The employer and an employee may agree to the employee taking twice as much annual leave on half pay.
  • Agreement to take annual leave at half pay must be recorded in writing and retained as an employee record.
  • Half pay annual leave must commence before 30 June 2020 but can end after that date.
  • EXAMPLE: Instead of an employee taking one week’s annual leave on full pay, the employee and the employer may agree to the employee taking two weeks’ annual leave on half pay. In this example, the employee’s pay for the two weeks’ leave is the same as the pay the employee would have been entitled to for one week’s leave on full pay (where one week’s full pay includes leave loading if applicable under the Award); and one week of leave is deducted from the employee’s annual leave accrual.

If you would like more information about the above, please contact our Employment Relations Specialists on 9390 5255 or email enquiry@ccer.catholic.org.au.

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9 April 2020 Update – JobKeeper Changes Legislated for Eligible Employers


Legislation to enact the JobKeeper scheme passed through federal Parliament last night and includes further changes to those originally announced by the Australian Government including changes that will benefit charities – including some CCER members. Other changes include temporary amendments to the Fair Work Act 2009 for a six-month period.

Eligibility changes for charities

The Government has significantly relaxed the eligibility requirements so that more charity sector employees will be eligible for the JobKeeper wage subsidy.

To access the scheme employers (including not-for-profits) need a 30 per cent reduction in revenue and, for firms with a turnover exceeding $1 billion, a 50 per cent reduction in business.

However, charities registered with the Australian Charities and Not-for-profits Commission (ACNC) will be eligible for the JobKeeper Payment if they have a turnover decline of 15% or more. This will apply to all registered charities, including those with a turnover of more than $1 billion.

The Government has clarified however that while the change is aimed at charities like the Salvation Army and Catholic Social Services Australia, non-government schools are only eligible if they meet the turnover threshold of 30% for those with an annual turnover of less than $1 billion.

CCER recommends that members check with your finance officer or adviser to see if you are eligible to access the scheme. You can register for the scheme with the ATO here.

Temporary changes to Fair Work Act 2009 (FW Act)

Temporary changes have been made to the FW Act for a six-month period ending on 28 September 2020.

The changes include temporary amendments to the  FW Act which allow eligible employers to pay employees the minimum $1,500 a fortnight JobKeeper payment without breaching awards, enterprise agreements or a contract of employment. There is greater flexibility for employers to change employees’ hours, duties, days and location with the Fair Work Commission given the power to hear and arbitrate any disputes.

Please note these changes only apply to employers who are eligible under the JobKeeper scheme.

Key changes to the FW Act are contained in the new Part 6-4C — Coronavirus economic response:

  • JobKeeper enabling stand downs and changes to hours of work

The changes allow an employer to alter the number of hours worked by an employee if their job has been affected by Covid-19 or the Government’s policy responses and the affected employee cannot usefully be employed for their normal hours during this period. Useful work does not have to be the work that the employee ordinarily performs but can be other productive work that benefits the employer.

In these circumstances, the FW Act authorises an eligible employer to give a JobKeeper enabling stand down direction in writing to an employee to:

  • not work on a day or days on which the employee would usually work; or
  • work for a lesser period than the employee would ordinarily work on a particular day or days; or
  • work a reduced number of hours (compared with the employee’s ordinary hours of work).

An employer must give at least 3 days written notice of the intention to give the direction.

The direction to reduce hours cannot be unreasonable and must be necessary to continue the employment. In addition, an employee can request approval to work a second job or access training during this period. Any decisions made by the employer can be reviewed by the FWC.

Any period covered by a JobKeeper enabling direction counts as service and leave continues to accrue based on an employee’s ordinary hours of work prior to the direction being given.

The JobKeeper enabling stand down direction does not apply to an employee during a period of authorised paid or unpaid leave or other authorised absence.

  • Minimum payment guarantee

During the JobKeeper enabling stand down period, an employer must ensure that the total amount payable to an employee each fortnight is the greater of either:

  • the $1,500 JobKeeper payment or
  • the amount payable to the employee in relation to the performance of work during the fortnight including loadings, allowances, overtime and shift penalties.

Further, you cannot reduce an employee’s base rate of pay (worked out on an hourly basis) that applied before the direction was given.

This means you must continue to pay an employee their base rate of pay for all hours worked (where this is greater than $1,500 per fortnight). If this is unaffordable, the legislation enables an employer to reduce an employee’s hours or days of work to reflect the $1,500 minimum JobKeeper payment. In some cases an employee may not have to work at all but will still receive the JobKeeper Payment.

  • Changes to duties, location, days and annual leave

The legislation also permits an eligible employer to make changes to duties and location of work, as well as agreed changes to days worked and the taking of annual leave.

The FW Act authorises an eligible employer to give a direction to an employee about:

(a)     the duties to be performed by the employee; or

(b)     the location of the employee’s work.

The employer must consult an employee (or their representative) before giving a direction and the direction must be reasonable in all the circumstances and necessary to continue the employment.

The FW Act also authorises an eligible employer and an employee to make an agreement in relation to:

(a)     the days or times when the employee is to perform work; or

(b)     the employee taking annual leave, including at half pay.

Employees are required to consider a reasonable request for agreement by an employer and must not unreasonably refuse the request. Agreement should be made in writing.

Any request to take leave must not result in the employee having a balance of paid annual leave of fewer than 2 weeks.

FWC may arbitrate disputes

The FWC may deal with and arbitrate a dispute about any of the matters above including issuing binding orders on the parties.

The usual penalties apply to any contravention of the new Part 6-4C of the FW Act. 

Casual employees

The JobKeeper scheme only applies to casuals who have been regularly engaged with one employer for at least 12 months.

Click here to see the Treasury’s fact sheet for employers re the JobKeeper Payment.
Click here to see the Treasury’s FAQs about the JobKeeper Payment.

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 8 April 2020 Update – RI and PJP Schools Support Staff Arrangements


As schools move to a different model of teaching delivery, CCER is receiving enquiries from RI & PJP Schools who are keen to establish the working arrangements that will apply from Term 2.

In particular, schools are keen to work out arrangements for support staff, whose roles are more obviously affected in a situation where staff and students are not physically present in schools.

With this in mind, we thought you may interested to hear our brief thoughts on this issue and how we may be able to assist you.

Our Previous Advice
CCER has  previously given advice that it is permissible to mutually agree with school employees to take paid or unpaid leave, although, subject to particular circumstances, it will not currently be possible to stand them down without pay under provisions in the Fair Work Act. We have also advised you to seek our assistance in circumstances in which you may be considering redundancies, as there are reasons why redundancy may be premature in the current circumstances.

Consult and Be Flexible
While no one size fits all, overall, we are of the view that it would be beneficial for all concerned not to make hasty decisions with respect to support staff, in what is a rapidly evolving situation. In the first instance, we recommend consideration is given to consulting with employees to identify alternative duties that can be performed within the scope of their responsibilities and skills. This is to ensure that these staff can continue to be usefully employed, to the best extent possible, and paid during this time, even where they may not be at their usual level of work capacity.

This approach is also important in the context in which the Australian Government is putting in place costly measures aimed at keeping employees in paid employment across the wider economy. It is also not clear whether any further assistance for employers in the education sector may be forthcoming in the weeks and months ahead.

This is a particularly topical and sensitive issue. The IEU has made clear that it considers that school support staff can, and should, remain usefully employed. The IEU has also demonstrated a willingness to pursue these matters, notably having already taken a dispute with another school over stand down to the Fair Work Commission.

How Can We Help?
The purpose of this communication is to assure you that we understand that in an uncertain environment you are facing difficult decisions. However, you are not alone. CCER is here to support you during these challenging times and hopefully help you to make the best decisions now, that will continue to benefit your school in the medium term, as circumstances change.

We are of course available to take your enquiries on this and other issues and have had discussions with RI & PJP schools’ leadership representatives to explore whether there are common positions across the sector. We will continue to do this in the coming weeks and are available to coordinate further discussions at a principal level or otherwise to keep you informed, facilitate discussions with other schools in similar situations and assist you in navigating a complex and unprecedented situation.

We are also looking to provide you with a template communication that may reassure your support staff by demonstrating a transparent, equitable and consistent approach by keeping them informed of the way you are approaching this difficult issue.

Should you wish to discuss this further please do not hesitate to contact us on (02) 9390 5255 or via email enquiry@ccer.catholic.org.au.

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3 April 2020 Update – Modern Awards to be Varied to Provide Pandemic Leave


Australian Modern Awards to be Varied for Pandemic Leave and Annual Leave at Half Pay.

The Fair Work Commission announced on Wednesday that it was taking steps to vary 103 modern awards to provide additional flexibility to deal with employee absences due to the COVID-19 pandemic.

The Commission has proposed that the awards be varied to provide:

  • an entitlement to up to two weeks’ unpaid ‘pandemic leave’ for all employees who are required to self-isolate or are otherwise prevented from attending work by measures taken by government or medical authorities in response to the COVID-19 pandemic; and
  • the taking of annual leave at half pay.

These would be temporary variations which would operate until 30 June 2020. 

It is anticipated that the Commission will vary the awards next week after considering any submissions from interested parties either opposing or supporting its proposal.

CCER will provide further detail on the variations when they are finalised.

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2 April 2020 Update – How Will COVID-19 Affect Easter Pay?


What do I pay my staff for these public holidays in light of COVID-19?

This will depend on whether your employees are still working, on paid leave, on unpaid leave or stood down without pay under section 524 of the Fair Work Act 2009 (FW Act) as a result of the pandemic:

Employees working on a public holiday:

  • Employees are entitled to at least their base rate of pay for all hours worked.
  • They may also be entitled to extra pay such as public holiday loadings, an extra day off or other entitlement so ensure you check any applicable modern awards, enterprise agreements or contracts.

Employees still working but not required to do so on a public holiday:

  • Full-time and part-time employees are entitled to be absent and paid their base rate of pay if they would have ordinarily worked on the day the public holiday falls.
  • Casual employees are not entitled to any payment for a public holiday unless they are required to work.

Employees on paid leave:

  • If an employee is on paid leave during a public holiday, the public holiday substitutes the other leave. For example, if an employee is currently taking their accrued annual or long service leave or is on paid personal/carer’s leave, their leave balance is not debited for a public holiday falling in the period of paid leave.
  • Employees are entitled to be paid their base rate of pay for the public holiday.
  • However, this rule does not apply if the public holiday falls on a day that is not an employee’s usual day of work.

Employees on leave without pay (LWOP):

  • Employees are not entitled to be paid for a public holiday as an employee has no ordinary hours of work on a day they are on authorised unpaid leave.
  • However, members may wish to consider paying your staff in this situation, especially if you will be eligible to receive and pay your employees the Job Keeper scheme wage subsidy during a period of LWOP (subject to complying with the scheme’s requirements).
  • In addition, the Fair Work Commission has flagged it will vary most awards next week to include two week’s unpaid pandemic leave. CCER will keep members informed of award changes and whether this will impact on the above advice for public holidays.

Employees who are stood down without pay (under the FW Act):

  • Employees are entitled to be paid for a public holiday that falls during a period of unpaid stand down if it falls on a day they would otherwise have worked.

If you would like more information about the above, please contact our Employment Relations Specialists on 9390 5255 or email enquiry@ccer.catholic.org.au.

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1 April 2020 Update – Essential Workers Still Required to Travel For Work


The New South Wales Government announced further restrictions on 30 March 2020 as part of social distancing measures which order people not to leave their home unless they have a reasonable excuse.

A reasonable excuse could include:

  • traveling for work or education purposes (where that cannot be done from home)
  • shopping for essentials such as food
  • exercise, or
  • medical/caring reasons.

Gatherings in public places are now limited to two people (unless the group already live in the same household).

Individuals can be fined $11,000 (with an additional $5,500 for each day the breach continues) and/or imprisoned for six months. Corporations can be fined $55,000 (with an additional $27,500 for each day the breach continues).

The new changes emphasise that the Government is not trying to restrict provision of social services/assistance to vulnerable people, or the operation of education or care facilities.

Many of our members run essential services, and you and your staff may be concerned that employees will be stopped by Police to explain their movements on the way to and from work.

CCER has prepared a letter for our members that you may wish to give to your staff to carry with them as they transit through the community to and from work.

For help or to discuss this further, please contact our Employment Relations Specialists on (02) 9390 5255 or by email to enquiry@ccer.catholic.org.au.

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31 March 2020 Update – Government Announces Wage Subsidies To Save Jobs


CCER is aware that many of our members are encountering significant workforce issues as their operations are affected by the COVID-19 pandemic and the resulting public health orders by State and Federal Governments.

This includes making difficult decisions about whether you can stand down employees or seek employees’ agreement to take leave, including unpaid leave, while there is no, or significantly less, work to perform.

As members will be aware, yesterday the Government announced a third $130 billion economic stimulus package aimed at preserving jobs, with financial support for employers to continue to pay wages, as follows:

  • Employers will be eligible for the subsidy if they have seen a 30 per cent reduction in revenue and, for firms with a turnover exceeding $1 billion, a 50 per cent reduction in business.
  • Eligible employees are employees who:
    • are currently employed by the employer (including those stood down or re-hired)
    • were employed by the employer at 1 March 2020
    • are full-time, part-time, or long-term casuals (a casual employed on a regular basis for longer than 12 months as at 1 March 2020).
  • Participating employers will be required to ensure eligible employees are paid a minimum $1,500 per fortnight, before tax. Employers can top up the payments for employees who would usually earn more.
  • The payments will start to be issued to employers by the Australian Tax Office (ATO) in the first week of May, and will be backdated to 30 March 2020.
  • The $1,500 payment is slightly more than the national minimum wage of $1,481.60 a fortnight.
  • The measure will last for a maximum period of six months.

Importantly, access to the subsidy does not require employees to be stood down.

While CCER cannot provide you with financial advice, we recommend that members check whether the payment may be available to assist you to keep your workforce employed during this challenging period, either where you have been required to stand down employees or as an alternative to restructuring and terminating their employment, due to a slow-down in work.

More info can be found here.
You can register at the ATO here.

If you have any questions, or would like more information please contact us on enquiry@ccer.catholic.org.au or (02) 9390 5255.

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31 March 2020 Update – Summary of COVID-19 Legislative and Award Variations


With the rapidly evolving situation has come an overflow of information that can be challenging to keep up with. So as to ensure that you have not missed anything that may be relevant to you, here is a quick roundup of the recent legislative changes and award variations arising directly as a result if the current crisis.

Click each link to read more.

  1. The Hospitality Award 2010
    Status:
    Temporary variation until 30 June
    Change in brief:
    Schedule L was added to allow for flexibility during the pandemic. This impacts classifications and duties, hours of work, and annual leave. These variations take effect from 24 March 2020 and stay in effect until 30 June 2020, with the possibility of extension for a further three months.

  • Long Service Leave Act 1955
    Status:
    Temporary change for 6 months
    Change in brief:
    The Legislation has been changed to allow for flexibility in how people access their Long Service Leave. The changes are effective from 24 March 2020 for a period of six months, with a possible extension for a further six months. Read more on our blog


  • Variation to Clerks Award
    Status:
    Temporary variation until 30 June
    Change in brief:
    These changes will impact hours and annual leave and will take effect from the first full pay period starting on or after 28 March 2020. They are currently in place until 30 June 2020, although the possibility of extending them has already been noted by the FWC. Read more on our blog


  • Update to WWCC
    Status: Extension for 6 months on clearances
    Change in brief:
    The NSW Office of the Children’s Guardian (OCG) has extended all NSW WWCC clearances for persons with checks that were due to expire in the period 26 March 2020 to 26 September 2020 for a further six months. The six-month extension applies from the current expiry date of that person’s check. Read more on our blog


  • Proposed Variation to 103 Modern Awards
    Status: Proposed to be varied until 30 June 2020
    Change in brief:
    The Fair Work Commission announced on 1 April that it was taking steps to vary 103 modern awards to provide additional flexibility to deal with employee absences due to the COVID-19 pandemic. CCER will provide further details as they are passed. Read more on our blog

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31 March 2020 Update – Top Tips to Transition to the Home Office


With more and more workplaces transitioning to working from home (WFH), it’s important to prepare, remind and support your employees when making this significant change.

In anticipation for this global move homeward, CCER developed a COVID-19 specific working from home policy, including a useful checklist to prepare staff when setting themselves up. Our members can now download the policy from CCER’s library of resources.

The CCER team made the transition home successfully in March, and from our experience we’ve prepared a working from home infographic, see below.

Here are our top three tips to get started on the working from home journey.

1- Have a designated work space

For some, having that separation between work and personal life is important. This could mean you need to prepare a separate room in the house for a home office. For some this might not be possible, but at the very least ensure that the designated area encourages productivity, whilst being ergonomic. This also includes making sure your space is clean and clutter free, using a comfortable seat, and ensuring your laptop is at eye-level to not wear down your posture.

2- Use an online collaboration tool

There are many applications and online tools that enable workplaces to communicate, collaborate and plan remotely. CCER has been using Microsoft Teams to do all those things successfully and with an element of fun. We’ve even managed to run our daily lunchtime quizzes on this platform.

Get in touch with your IT team to discuss the platforms available or for other communications tools and options. Be patient with them though – transitioning employees to a WFH situation is not an easy technical feat.

3- Keep moving

Whether you’re smashing through that To-Do list, or feeling stuck in a WFH rut, get up, move and stretch. Walk to the kitchen, the front door, your backyard – or go for a walk down your street (but check with your local area’s Government regulations on being in outdoor areas).

And finally, for more useful – and fun – tips, check out our Guide to Working From Home infographic.

If you would like more information about the Working From Home Policy Template or for other issues, get in touch with our Employment Relations Specialists at (02) 9390 5255 or email us at enquiry@ccer.catholic.org.au.

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30 March 2020 Update – NSW Office of the Children’s Guardian Extends WWCC Clearances


On 26 March 2020, the NSW Office of the Children’s Guardian (OCG) took the unprecedented step of extending all NSW Working With Children Check (WWCC) clearances due to expire between 26 March 2020 and 26 September 2020, moving the expiration date of these checks back six months.

The COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (the Act) passed by the NSW Parliament on 25 March 2020 provided legislative change across a number of portfolios, and enabled the OCG to extend WWCC clearances where appropriate to assist in the prevention of unforeseen disruptions to services resulting from COVID-19. The OCG advise that further extensions may be applied, should they be needed.

Individuals granted an extension will be notified by the OCG directly, while individuals requiring a new WWCC will need to go through the ordinary application process.

Employers should review and update their WWCC records to ensure that employees and volunteers whose checks expire during the period 26 March 2020 to September 2020 are extended by six months from the date of the person’s current expiry date.

Click here for CCER’s article regarding important Child Protection information following changes to the NSW Reportable Conduct Scheme which came into effect 1 March 2020.

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30 March 2020 Update – Important Updates to Clerks Award


Many CCER members are encountering workforce issues as their operations are affected by the COVID-19 pandemic and the resulting public health orders by State and Federal Governments.

Those members with staff covered by the Clerks – Private Sector Award 2010 should note that the Fair Work Commission (the FWC) has temporarily varied the Award to provide employers and employees with greater scope to respond to the workforce challenges being faced.

The changes mean employers may:

  • direct employees to work across classifications.
  • implement working from home arrangements with specific flexible working arrangements applying.
  • agree with employees to work a reduced number of hours for a temporary period.
  • direct employees to take annual leave with short notice.
  • agree with employees to take annual leave at half pay.

These changes take effect from the first full pay period starting on or after 28 March 2020. They are currently in place until 30 June 2020, although the possibility of extending them has already been noted by the FWC.

The variation to the Clerks – Private Sector Award 2010 provides as follows:


Changing Employee Duties

  • Employees can be directed to perform all duties that are within their skill and competency (even if they are lesser duties) regardless of their classification, provided the duties are safe and the employee is licensed and qualified to perform them. Doing so cannot lead to a reduction in pay.

Changes to Accommodate Working from Home

  • Where a part-time or casual employee requests to work from home, and the employer agrees, the spread of ordinary hours has been expanded to 6am-11pm Monday to Friday and 7am-12.30pm on Saturday.
  • For part-time employees, an employer is required to roster the employee for a minimum of two hours working from home.
  • For casual employees, an employer is required to engage the employee for a minimum of two hours work when working from home.

Reduction in Hours by Majority Agreement

  • An employer may agree with full-time and part-time employees in a workplace, or part of a workplace, to temporarily reduce ordinary hours for a specified period for the whole workplace or relevant part of it, by a 75% majority vote by employees.
  • The employees must vote on whether to reduce hours or not, and if there is a union involved in the workplace, they must be informed. Additionally, the FWC must be notified of the vote pursuant to the process outlined in the new Schedule to the Award.
  • The reduction in working hours is limited to a 25% reduction or less.
  • Where hours are reduced, the employee’s ordinary hourly rate will stay the same.
  • In addition to changes that apply to a workplace (or part of a workplace) because of a vote, more significant changes can be made so long as the individual employee accepts the proposed change. For example, an employee can move temporarily from full-time to part-time hours of work, with a corresponding reduction in the weekly wage. Any such agreement must be recorded in writing with the individual employee.
  • Employees will still accrue Award and National Employment Standards entitlements (e.g. annual and personal/carer’s leave), based on their previous ordinary hours of work.
  • For an employee whose hours have been reduced, the employer must not unreasonably refuse the employee’s request to engage in other employment.

Annual Leave

  • Employers and employees may agree to the taking of up to twice as much annual leave at a proportionately reduced rate (for example annual leave at half-pay), including during any close-down.
  • An employer may direct an employee to take any accrued annual leave, by giving at least one week’s notice, or any shorter period as agreed. A direction to take annual leave must not result in an employee having less than two weeks of accrued annual leave remaining.

Close-Down

  • Where the employer closes down its operations, the employer may direct employees to take annual leave. However, the employer must give at least one week’s notice.
  • During a close-down, an employee can take all of their annual leave and then will be given leave without pay for the remainder of the shutdown. This appears to give employers broader rights to stand down employees on unpaid leave than those in section 524 of the Fair Work Act 2009.

The FWC’s determination varying the Award can be found here.

The full Award can be accessed via the CCER members website or on the FWC website.

For help or to discuss this further, please contact our Employment Relations Specialists on (02) 9390 5255 or by email to enquiry@ccer.catholic.org.au

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27 March 2020 Update – Slow-Down v Stoppage: What Are Your Options?


Is a Slow-Down a Stoppage of Work?

CCER recently provided advice to our members about when it may be possible to stand down employees without pay during a ‘stoppage of work’ under s.524 of the Fair Work Act 2009 (the Act).

As a result of the community response to managing COVID-19, many of our members are experiencing a downturn or slow-down in business activity (less children coming to an out of school or early childhood program or social service clients cancelling services) and are seeking to implement stand downs. However, a slow-down in business activity is not the same as a ‘stoppage of work’. A stand down can only be implemented where there is a stoppage (and there is no other productive work that can be done).

While CCER cannot give you legal advice, regrettably the option of stand down is unlikely to be available in the case of a slow-down in business (and in the absence of a government direction to close the business). In that scenario, we recommend that members consult with staff about using leave options as an alternative to a restructure and redundancy. However, redundancy may be ultimately necessary to reduce your workforce.

Mistaking a Slow-Down for a Stoppage of Work

CCER recognises that many members are experiencing significant operational difficulties in continuing to manage your business. Often employers believe that standing down employees is a better option than redundancy because it maintains the employment relationship and continuity of service, and leave continues to accrue.

However, it is critical that members properly assess the circumstances that allow for a stand down under the Act. You should only use these provisions in limited situations and as a last resort.

As CCER has previously advised, for an employer to utilise the option of stand down, there  must be a stoppage of work for a cause for which the employer cannot reasonably be held responsible. Unless there is a stoppage and no useful work for employees to perform, you cannot stand them down.

Unfortunately, you cannot stand employees down simply because there is less work to perform because of a reduction in clients using a service, because revenues are down, or because this is what you anticipate may happen over the foreseeable future.

A stand down can only occur at the point at which a stoppage occurs.

Penalties for Getting it Wrong

There are significant penalties for breaches of the Act, an award or an agreement if you are found to have wrongly stood down employees.

Employees may apply to the Fair Work Commission to deal with a dispute about s.524 and an order may be made if you were found to have wrongly stood down employees. Significant penalties apply for breaches of any terms of such order and individuals could also be personally held liable. These include:

  • for an individual: 60 penalty units = $12,600
  • for a body corporate: 5 x 60 penalty units = $63,000

You may also be exposed to claims for back pay of wages and compensation for loss suffered by the employee.  Further, additional penalties may apply for breaches of applicable terms of the relevant award or enterprise agreement during the stand down period.

Consult With Your Employees About Options to Mitigate the Effects

In circumstances where the stand down option is unlikely to be available, CCER recommends that members consult with staff about other options as an alternative to a restructure and redundancy. These options could include:

  • Identifying if there is any useful work to do (even if it’s different to employees’ usual work)
  • taking accrued paid leave such as annual leave or long service leave
  • taking leave without pay (employees should be made aware that no leave accrues although continuity of service is not broken)
  • reducing hours of work (this must be by individual agreement and we recommend a temporary contract variation to this effect).

While it is important to avoid any ‘coercion’ of staff to agree to alternative options, we recommend that you are upfront with your staff about the impacts on the business caused by the COVID-19 situation, and consult about the possibility that a restructure and redundancy may be necessary if the business cannot get back to normal operations or must cut costs during the downturn.  This will allow staff to make informed decisions about the available options.

CCER recommends that members advise staff that while their position will be made redundant due to a slow-down, you want to take every step reasonably open to you to avoid having to end their employment on the grounds of redundancy. CCER can assist you to draft a suitable letter. 

Redundancy May Be Necessary

Regrettably, the reality is that redundancies may be ultimately necessary to reduce your workforce if stand down is not an option and employees don’t agree to alternative options.

The usual obligations continue to apply in a redundancy situation including:

  • Consultation in accordance with your award(s) or enterprise agreement, if applicable
  • Notice of termination or payment in lieu
  • Redundancy payments

A redundancy will be ‘genuine’ for the purposes of the Act if the job is no longer required to be performed by anyone. This would have to be the case for the foreseeable future, even if you may need to fill these roles in the future, when normal operations resume.

For Help, Contact Us

CCER understands these are complex and difficult matters for our members to navigate in these unprecedented and challenging times.

If you have any questions, or would like more information please contact us on enquiry@ccer.catholic.org.au or (02) 9390 5255.

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26 March 2020 Update – Changes to NSW Long Service Leave Legislation


Changes have been made to the NSW Long Service Leave Act 1955 (the Act) to allow greater flexibility in accessing long service leave as a means of assisting workers to continue to be paid during the work disruptions caused by the COVID-19 pandemic.

The changes are effective from 24 March 2020 for a period of six months, with a possible extension for a further six months.

The new changes:

  • allow an employee (by agreement with their employer) to access any amount of long service leave in advance of them being entitled to the leave, and to take this leave in shorter blocks, such as one day a week. (Previously, an employee who wished to take long service leave in advance needed to apply for at least one month of long service leave)
  • waive the requirement for employers to give one month’s notice to employees to take long service leave, if the employee agrees to a lesser notice period.

CCER members who are managing a downturn in their business caused by COVID-19 should consider whether these changes might assist them and their employees.

Members who are covered by an enterprise agreement can also seek advice from CCER as to the interaction between these changes and enterprise agreement provisions on long service leave.

If you have any questions about these changes, or would like more information please contact us on enquiry@ccer.catholic.org.au or (02) 9390 5255.

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26 March 2020 Update – Working from Home Template Policy


As the current situation has evolved, it has become clear that it will be necessary for many employees to work from home for an extended period of time.

Those working from home are still covered under the Work Health and Safety Act 2011. This means employers have an obligation to make sure the health and safety of their employees is maintained when they work at home.

In anticipation of this unprecedented situation, CCER has developed a tailored Working from Home Template Policy and a checklist for our members to utilise, specifically for the period during which we are impacted by COVID-19, the handling of which is likely to differ from a ‘request to work from home’ made in the ordinary course of events.

In what is an unprecedented situation, our template policy looks to balance the health and safety risks of many employees working from home with the current realities that would make detailed assessments of those home working environments impracticable.

We recommend you check back here regularly for new employment relations related Coronavirus (COVID-19) information.

In the meantime, our Employment Relations Specialists are available to give advice to members on (02) 9390 5255 or by email to enquiry@ccer.catholic.org.au

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25 March 2020 Update – Shutdown of Workplaces Due to COVID-19


Many CCER members are grappling with the possibility of closing all or part of their operations due to the coronavirus pandemic. The shutdown of workplaces may need to occur because of mandatory Government direction, where a worker is diagnosed with a confirmed case of COVID-19, because you have no clients, or for other reasons.

While it may be possible to stand down your employees where you need to shut a work site or a service, members need to exercise caution and consider all the options available before you send staff home without pay.

Can I stand down my employees without pay?

  • The Fair Work Act 2009 (s524) permits an employer to stand down an employee(s) without pay, when they cannot be usefully employed because:
    – there is a stoppage of work; and
    – the employer cannot be held responsible for this stoppage of work.
  • While the Act does not define what a stoppage of work is, it is more than a reduction in work. Generally speaking, a stoppage of work will involve all or part of a business ceasing operations, and work cannot be performed despite an employee being ready, willing and able.
  • The Act only applies where there are no stand down arrangements in a contract or enterprise agreement.
  • Case law indicates employers should only use these provisions in limited situations and as a last resort.
  • While CCER is advised that a Government mandated workplace closure will meet the criteria in the Act, if contested, only a tribunal or court can ultimately determine this issue. CCER cannot provide definitive advice on this matter.
  • Where a workplace closes as a result of an employer determining that it must do so because of WHS obligations, we are advised that this would not meet the test in the Act, unless closure of a particular site is at the direction of Government. Again, CCER cannot provide definitive advice on this matter.
  • Staff remain employed during a period of shutdown although they are not required to perform work and are not paid. As the Act recognises a period of stand down as ‘service’, employees continue to accrue annual and personal/carer’s leave entitlements.

Is there any useful work to perform?

  • You cannot stand down employees if there is useful work available for them to perform within the ambit of their usual job and employment contract.
  • Therefore, before you make any decision to stand down, members must consider if your employees can be usefully employed. This means you must :
    – consider all options to continue to provide staff with useful work during this period including other duties, tasks or projects that can be performed from home or another location.
    – take a broad view about useful work. This does not have to be the work that an employee ordinarily performs but needs to be genuine productive work that benefits the employer, not ‘make’ work.
    – base decisions objectively on which roles cannot be performed during a shutdown rather than on individual employees to reduce discrimination risks. Job descriptions should be used to make this assessment.

Can I reduce wages or hours if staff are performing useful work?

  • Where staff are performing useful work, they should continue to receive their ordinary rate of pay during this period and any contractual entitlements. However, staff may not be entitled to other payments such as uniform allowances or shift penalties.
  • Even though staff may only be able to perform part of their role, or alternative useful work that is not commensurate with their usual responsibilities, there is no unilateral right for an employer to reduce an employee’s ordinary rate of pay.
  • Reductions to an employee’s hours of work could only be implemented by agreement (noting a temporary variation to their contracted hours may be more palatable to an employee where the only alternative is stand down without pay).

Can I direct staff to take accrued paid leave?

  • Even if an employer is permitted to stand down staff in accordance with the Act, it is advisable that employees be consulted prior to implementation and given an opportunity to access paid leave.
  • Where no useful work can be identified, and prior to any stand down without pay, staff should be offered, in writing, the option to access their accrued paid annual leave or long service leave (LSL), by agreement.
  • It is not possible to direct staff to take such leave as this action is only permitted in limited circumstances in accordance with the LSL Act, modern awards and agreements.
  • Where staff do not choose to utilise their accrued paid leave, or where paid leave is exhausted, you may decide to stand them down without pay. Staff should receive further written correspondence if leave is exhausted and a decision then taken to stand them down.

Should I terminate the employment of staff?

  • We understand that for some members who are facing a down turn in clients and revenue, it may be difficult to continue to keep staff employed for an unknown and potentially lengthy period of shutdown.
  • In such circumstances, redundancies may be an option where you no longer require a job to be performed by anyone due to a downturn in business or a restructure of positions necessitated by your response to COVID-19.
  • CCER recommends you seek further advice before you make any decision to terminate an employee’s employment.

What if I do decide to stand down employees? 

  • In making your decision:
    – Check that you’ve considered if useful work is available and consulted staff about paid leave options.
    – Advise staff individually in writing of any decision to stand them down in accordance with the Act. CCER can assist you with a template letter, if required.
    – Consider your funding or budget and the affordability of continuing to pay staff, the importance of retaining and supporting your skilled staff in the future and the public benefits of doing so.

For further help, please contact our Employment Relations Specialists on (02) 9390 5255 or by email to enquiry@ccer.catholic.org.au

*Please note – CCER does not give legal advice and this advice should not be taken as such.

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25 March 2020 Update – Hospitality Award Varied to Provide Additional Flexibility


Many CCER members are encountering workforce issues as their operations are affected by the COVID-19 pandemic and the resulting public health orders by State and Federal Governments. 

Those members with staff covered by the Hospitality Industry (General) Award 2010 should note that the Award has been temporarily varied to provide employers and employees with greater scope to respond to the workforce challenges being faced.

The changes mean employers may:

  • direct their full and part-time employees to work a minimum of 60% of their guaranteed hours per week or roster cycle, following consultation.
  • direct employees to work across classifications.
  • direct employees to take annual leave with short notice.
  • agree with employees to take annual leave at half pay.

These changes take effect from 24 March 2020 and stay in effect until 30 June 2020, with the possibility of extension for a further three months.

The variation to the Hospitality Award provides as follows:

Directing full-time and part-time employees to work reduced hours

An employer can direct a full-time employee to work an average of between 22.8 and 38 ordinary working hours per week with the employee being paid on a pro-rata basis.

For part-time employees, an employer can direct them to work an average of between 60 and 100% of their guaranteed hours per week or roster cycle.

An employer must consult with affected employees beforehand (and the United Workers Union where an employee is a member) and provide employees with as much notice as practicable.

Affected employees will still accrue annual and personal/carer’s leave, together with any other Award accruals, based on their previous ordinary hours of work.

If an employee takes annual or personal leave while their hours are reduced, they are to be paid for the leave based on their previous ordinary hours of work.

Increased flexibility for employees to work across classifications

Employees can be required to perform all duties that are within their skill and competency regardless of their Award classification, provided that the duties are safe and the employee is licensed and qualified to perform them.

Arrangements for higher rates of pay when an employee is engaged on higher duties still apply.

Directing annual leave be taken with 24 hours’ notice

Subject to considering an employee’s personal circumstances, an employer can direct an employee to take annual leave with 24 hours’ notice. This does not impact on an employer and an employee agreeing to the employee taking annual leave at any time.

Agreement to take annual leave at half pay

An employer and an employee may agree to the employee taking twice as much annual leave at half the rate of pay for all or part of any period of annual leave.

The FWC’s determination varying the Award can be found here.

The full Award can be accessed via the CCER members website or on the FWC website.

For help or to discuss this further, please contact our Employment Relations Specialists on (02) 9390 5255 or by email to enquiry@ccer.catholic.org.au

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19 March 2020 Update – Medical Clearances


Should employers require staff to provide a medical clearance certificate before they return to work after finishing a mandatory period of self-isolation or after testing negative for COVID-19?

In accordance with Government advice, all travellers returning to Australia or anyone exposed to a confirmed case of coronavirus is required to self-isolate for a period of 14 days. Similarly, anyone with cold or flu symptoms is advised to stay home until they recover and the symptoms have ended.

Doctors are being asked to provide medical clearance to patients who have completed a 14-day period of self-isolation due to COVID-19.

NSW Health has provided advice stating that doctors are unable to issue ‘medical clearance certificates’ because there is no testing that can be conducted to predict whether or not patients will become unwell if they are currently symptom free.

NSW Health advises that once 14 days have passed since an employee returned from overseas, they have passed the time in which they would become sick if exposed to COVID-19. If staff are still completely well 14 days after their return, they can cease self-isolation and return to work.

The Royal Australian College of GPs and its medical indemnity providers advise the only type of ‘certification’ a GP can provide is to the effect that, on the day of assessment, the patient was symptom free (this relies on a patient history and the patient being honest) and had no clinical features to indicate a viral infection.

Doctors are advised they must follow the standard fitness to work process in determining whether to issue a medical certificate. If the patient has returned a negative test, or is not exhibiting any symptoms and has appropriately self-isolated in accordance with Department of Health advice, if necessary then a carefully worded certificate can be issued stating that the patient has told their doctor this is the case.

CCER recommends that employers do not insist on a clearance certificate but instead ensure that:

  • any staff member required to self-isolate does not return to work before the end of the 14 day period; and/or
  • any staff member that presents with cold or flu symptoms is sent home immediately and does not return to work until they are symptom-free.

You may also wish to consider whether, in the current climate, you require evidence of illness or a medical certificate for employees who are off sick, in light of the significant demands on our health services.

If you have any questions or concerns please contact our Employment Relations Specialists on (02) 9390 5255 or by email to enquiry@ccer.catholic.org.au

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16 March 2020 Update – Self Isolation


Yesterday, the Australian Government announced that all travellers arriving in, or returning to Australia would be required to self-isolate for a period of 14 days.

While there could be exceptional circumstances in which you choose to take a different approach, CCER recommends the following approach with respect to staff who may be impacted by this requirement:

  • as previously determined, staff who are currently overseas and need to self-isolate upon their return can work from home where possible, and in any event will continue to be paid for up to 10 working days

Staff who choose, against Government advice to go on non-essential travel overseas after midnight on 15 March:

  • will not be approved to work from home and not be paid during the required self-isolation period upon their return
  • will not be able to access personal/carer’s leave for the mandatory self-isolation period upon their return, unless they are sick or caring for a sick member of their family or household
  • will be able to access any available long service leave

CCER will continue to provide you with updates as developments occur.

 

Since our last update on 4 March, the Australian Department of Health has launched a national campaign to help us all stay informed about Coronavirus (COVID-19).

The Australian Health Protection Principal Committee (AHPPC) has recommended social distancing measures, including limiting non-essential organised gatherings to fewer than 500 people. At this stage, these limits don’t apply to workplaces, schools, universities, supermarkets, public transport or airports.

Government restrictions starting today (16 March) mean that any person arriving into Australia from overseas anytime after 12am today, are required to isolate for 14 days.

New recommendations have also been introduced to protect the elderly and vulnerable, including reducing visits to aged care facilities and remote indigenous communities.

CCER’s team of employment relations specialists continues to be available to assist with your enquiries on this issue. Contact us on (02) 9390 5255 or email us at enquiry@ccer.catholic.org.au

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4 March 2020 Update – Have a Plan


As the Coronavirus situation in Australia develops, we recommend all employers prepare for any potential Coronavirus-related impacts on the workplace. We suggest having a basic plan in place to guide your staff and meet your health and safety obligations without creating an environment of fear. Please see CCER’s guidance below. Given this remains an evolving situation we will provide further updates to our members as changes occur.

Latest status update

The World Health Organisation (WHO) is currently advising that the chance of contamination is low if you are not in the countries most affected or have not had direct contact with infected people. Australians returning from China and Iran are being directed by the Australian Government to quarantine themselves at home for 14 days. Healthcare or residential aged care workers returning from Italy or South Korea are directed not to attend work for 14 days.

The virus is yet to be declared a pandemic by WHO, but the Australian Government and Chief Health Officers are regularly reviewing the situation to decide whether further travel-related quarantine restrictions or additional protection measures, such as bans on mass gatherings, will be introduced. We recommend you monitor Government health alerts for up to date information and advice.

Have a basic plan

  • Communicate with staff regularly about the status of the virus in Australia and actions being taken to reduce risks – there is a duty of care under WHS legislation and good communication may reduce anxiety and misinformation
  • Ask employees to notify you if they have travelled to an affected area overseas and/or have any flu-like symptoms
  • Make sure everyone’s contact details are up to date
  • Make sure management is on the alert for symptoms of coronavirus and are monitoring staff, clients, participants or students as appropriate
  • Have a procedure in place in case someone in the workplace develops the virus
  • Encourage everyone to wash their hands for at least 20 seconds regularly at work and home
  • Display and take hygiene precautions in the workplace
  • Where possible ensure staff have the resources and equipment to work from home if need be
  • Subscribe to updates from WHO, Government health alerts and DFAT travel warnings
  • Reconsider any international travel for work purposes
  • Consider your obligations for managing employees who are unable to attend work as set out below

What if an employee is unable to attend work? What kind of leave Is applicable?

Your obligations may vary depending on the reasons why an employee cannot attend work:

An employee returning from an at-risk country who is required to self-isolate /not attend work

  • Advise they are required to self-isolate in accordance with Government advice for 14 days and to get a medical clearance before returning to work. As noted above, currently this applies to people who have been in or transited through mainland China and Iran, or who have been in close contact with a proven case of Coronavirus. Additionally, healthcare or residential aged care workers returning from Italy or South Korea are not to attend work for 14 days (but check Government alerts regularly).
  • Consider what type of leave may be granted. As the Fair Work Act 2009 doesn’t legislate entitlements for this situation employers and employees may agree on arrangements that will apply. You may grant accrued paid leave (annual or long service leave if available) or agree to provide other discretionary paid or unpaid leave. We recommend that you take a consistent approach depending upon your operational needs.

An employee diagnosed with (or suspected of having) coronavirus or caring for someone who does

  • Provide access to paid personal/carer’s leave entitlements or (if exhausted) other paid leave or unpaid leave and require a medical clearance before returning to work

An employee who wishes to stay at home as a precaution

  • Advise they will need to make a request to work from home (if possible) or take some form of paid leave (annual or long service leave) or leave without pay. Consider such requests in accordance with your usual practice and processes.

Directing an employee to stay at home as a precaution

  • Where you have directed an employee not to attend work as a precaution, they would ordinarily be entitled to be paid for the period of suspension. Consider where possible the employee working from home during this period.

Check applicable instruments

CCER recommends that you check your obligations under any applicable award, enterprise agreement, contract of employment or workplace policy when making these decisions.

Stand down without pay

Section 524 of the Fair Work Act 2009 only allows an employer to stand down an employee without pay if the employee cannot be usefully employed on three grounds, including a “stoppage of work for any cause for which the employer cannot reasonably be held responsible”. Modern awards, enterprise agreements or employment contracts may also contain stand down provisions.

Such provisions may apply depending on further quarantine or other social distancing decisions that have the effect of creating a stoppage of work. As the considerations for this, both financial and otherwise, will vary, we recommend employers seek advice before making a decision to stand employees down without pay for this reason.

Further guidance

Further guidance is available from the Fair Work Ombudsman (FWO) website.

If you have any questions or concerns please contact our Employment Relations Specialists on (02) 9390 5255 or by email to enquiry@ccer.catholic.org.au

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