Coronavirus (COVID-19) 30 March Update
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
19 March – Medical Clearances
16 March – Self Isolation
4 March – Have a Plan
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.
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.
- 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.
- 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.
For help or to discuss this further, please contact our Employment Relations Specialists on (02) 9390 5255 or by email to email@example.com.
27 March 2020 Update – Slow-Down v Stoppage: What Are Your Options?
Is a Slow-Down a Stoppage of Work?
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 firstname.lastname@example.org or (02) 9390 5255.
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 email@example.com or (02) 9390 5255.
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 firstname.lastname@example.org.
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 email@example.com.
*Please note – CCER does not give legal advice and this advice should not be taken as such.
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 firstname.lastname@example.org.
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.
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.
If you have any questions or concerns please contact our Employment Relations Specialists on (02) 9390 5255 or by email to email@example.com.