As Queensland commences its first working day of a lockdown it is a good time to review your obligations as an employer. Although we all hope that lockdown will only last until Sunday 8 August, it is unfortunately possible the lockdown may be extended.
We are receiving many enquiries from clients regarding the obligations on employers where their employees or their business is being affected by Covid-19. 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. Therefore, if employers are not sure what to do next, this is not surprising.
What if my employees cannot work because of the lockdown?
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. Where a business is unable to open because of the health directives and the employer does not have work that the employee can undertake outside of the workplace, this will be a circumstance which employers cannot reasonably be held accountable for. However, before deciding that an employee should be stood down, the employer should consider if there is any work that the employee could reasonably do outside of the office, even if it is not their usual job. Such work needs to be genuine work needed by the employer.
We no longer have the stand down arrangements which existed under the previous JobKeeper program. The only options now are for employers to stand down employers under section 524 of the Fair Work Act, 2009 or in some instances under the provisions contained in an Award or Enterprise Agreement. In most if not all instances a stand down will be without pay.
Employers may offer employees the option to take annual leave, however they may not require an employee to use their leave in place of a stand down.
Employees may only utilise their personal leave during a stand down, if they are genuinely unwell or they are required to provide care for a member of the family or household.
If you are an employer who may need to stand down your employees, or some of your employees, it is important that you do it correctly. We would strongly recommend that employers in this position obtain specialist advice prior to taking any action which may impact on the entitlements of employees.
Our team are all working from home, but remain available. Our Queensland clients who have a YourHR or one of our Covid-19 advice packages will be contacted directly by a member of our HR consulting team to provide assistance. If we can assist you please contact our HR and IR Partner, Cheryl-Anne Laird on Cheryl-Anne.Laird@mazars.com.au or 0412 746 419, or alternatively contact firstname.lastname@example.org and we will have one of our consultants call you.