We are receiving many enquiries from clients regarding the obligations on employers where their employees or their business is being affected by COVID-19. This is an unprecedented situation we are all in, and not one which employment law has previously been required to address. It is fair to say that what is being required of employers is to apply the existing employment regulation to a novel set of circumstances that were not contemplated when the Fair Work Act, 2009 and other regulatory documents were created.
What we do know is:
- If an employee is unwell because of Coronavirus they are entitled to access their personal leave to cover any absence while on sick leave.
- If an employee is required to take time off to care for a family member or a member of their household who is sick because of Coronavirus they are entitled to access their personal leave to cover any absence while on carers leave.
- If an employee is required to take time off to care for a family member due to emergent circumstances, for example a childcare centre has closed due to Coronavirus, a person with carers responsibility will be able to access their personal leave to cover any period of absence from work.
The above is only limited by the amount of accrued personal leave an employee may have. If the employee has nil or insufficient personal leave accrual, they would be entitled to take unpaid personal leave.
What needs to be decided on a case by case basis is:
The Fair Work Act, 2009 (the Act) provides for circumstances where an employer may ‘stand down’ an employee, where the employer is unable to provide useful employment to an employee for reasons which the employer cannot reasonably be held responsible. These provisions have historically been used in cases of natural disaster or inclement weather where the continuation of work is impossible due to the disaster or weather.
In the current situation of COVID-19, it is not clear when a particular set of circumstances will meet the threshold of being circumstances for which an employer cannot be reasonably held responsible. A downturn in business for example, would not normally be considered to fall within this clause, however where the downturn is because of COVID-19 this may be an exception. Further, even if the circumstances meet the threshold, there is then an obligation on the employer to determine if they genuinely cannot provide useful employment. That is, there may be other options such as working from home or from another location, or alternative duties in another part of the business.
To further complicate matters, a number of Industrial Awards, Enterprise Agreements and Employment Contracts/Agreement may specifically provide for when an employer may stand down an employee and the circumstances which are to be met before such a stand down can occur. Therefore, the only way to genuinely establish an employer’s obligations is to do so on a case by case basis. It is important that employers do not inadvertently fail to meet their obligations to their employees in terms of pay and leave arrangements. Therefore, if your business is experiencing difficulties due to COVID-19 we recommend you obtain specialist advice prior to taking any action which may impact on the entitlements of employees.
If you require advice or assistance please contact our HR Consulting Division at MazarsHR@mazars.com.au or alternatively call one of our offices:
Please note that this publication is intended to provide a general summary and should not be relied upon as a substitute for personal advice.
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