With half the country back in lockdown, HRM revisits some common legal issues facing employers at this time.

Up until a few months ago, Australia was praised for its handling of the COVID-19 pandemic. But the Delta variant has undone a lot of that good work and forced more than 13 million people back into lockdown.

In NSW, Greater Sydney residents are facing the possibility of being in lockdown until September. Victoria will remain in lockdown until at least next week, and residents in South Australia have just gone into a seven-day snap lockdown.

This all means that many employers are facing the same questions as last year, such as who can go into the workplace? Can I stand down staff? What happens if an employee gets COVID-19?

HRM asked Michael Byrnes, partner at Swaab, to answer five common legal questions employers might have right now.

1. Can I ask employees to come into the workplace?

If you’re in Sydney the advice is simple: don’t force employees back to the office or you could face an on-the-spot $10,000 fine. The penalties were brought into effect last week.

“We don’t want employees being forced into the office,” NSW premier Gladys Berejiklian said in her press conference last week. “We’ve said that all people who can work from home should be working from home and if you feel you are being forced to go into the office, your employer will be given that harsher penalty.” The fines came into effect for employers in all NSW lockdown regions from 21st July.

“For Greater Sydney, employers must require their employees to work from home, unless it is not reasonably practicable to do so,” says Byrnes.

“There must be fundamental impediments or barriers to an employee effectively performing the duties of their role from home [to justify them coming into the workspace]. It can’t be an employer’s preference.”

For those in regional NSW, Berejiklian still urges employers to let staff work from home where reasonable.

All NSW employees must wear a face mask at their place of work regardless of whether  it’s indoors or outdoors.

In Victoria, the state government has released a comprehensive list of authorised workers who can attend the physical workplace, including allied health professionals and emergency service workers. Organisations that aren’t authorised to open their physical workspace must close and allow employees to work from home if possible.  All Victorian employees must wear a facemask in the workplace unless they are the only person in a room.

South Australia also has a list of essential workers and workplaces. Employees who are not on that list must work from home if possible. All South Australian residents must wear a mask when leaving the house. 

Queensland currently does not have restrictions on where people can work, but employees must wear a mask unless they are isolated from others. 

Western Australia and the Northern Territory do not have restrictions or face mask rules. Tasmania also does not have widespread restrictions except for airport staff who must wear a face mask.

2. How can we stand down employees? 

When there’s no work available for employees, you can stand them down which means they’re not paid but they are essentially still employed. (Read HRM’s full guide here).

Under the Fair Work Act, employees can be stood down if they cannot be usefully employed due to circumstances including:

• Industrial action (unless it is engaged by the employer).
• A breakdown of machinery or equipment that the employer cannot reasonably be held responsible for. 
• A stoppage of work for any cause for which the employer cannot reasonably be held responsible. Some employers in NSW, VIC and SA might be in this position at the moment.

Employers must be able to show evidence for standing employees down, as stand downs can be contested with the Fair Work Commission. Even if you currently don’t need to stand staff down, it could be a good idea to include a provision in your employment contract to safeguard your business in the future.

It’s also important the reason for standing down employees is due to a full stoppage of work.

“A downturn is not enough of a reason to stand down employees. There has to be a stoppage of work. So employers in states not currently impacted by lockdowns might not meet the requirements,” says Byrnes.

Importantly, before standing down employees, an employer must consider if staff can be redeployed elsewhere in the business. 

“Don’t be trigger happy with stand downs,” says Byrnes. “For example, if you’re a retailer that has had to close down, but there is administrative work that an employee could do from home, then that should be considered first.”

(Read HRM’s guide to redeployments here).

3. Can I direct employees to use their leave?

If an organisation cannot function due to lockdown and would like to avoid standing down employees, there are some instances where an employer could direct an employee to use their annual or long service leave.  

The following advice pertains to employees under awards. For employees under an enterprise agreement, an employer should double check what powers they have as per the agreement.

Prior to COVID-19, it was considered reasonable for an employer to direct employees to use annual leave over Christmas shutdown periods.

“The Fair Work Act doesn’t specifically say that a shutdown due to a pandemic, or some other cause, is a reasonable excuse to direct an employee to take annual leave, but I do think an analogy with Christmas shutdown could be drawn. And I think it’s a cogent argument,” says Byrnes.

Certain awards also allow employers to direct staff to take leave if they have an excessive leave balance. 

Directing employees to use long service leave (LSL) is a bit tricker. LSL is regulated by the states so employers should check the rules that apply to them. Here is a good resource to do that.

Western Australia does not allow employers to force employees to take LSL. Employers in Tasmania also cannot direct employees to use their LSL, unless WorkSafe Tasmania sanctions it.

Apart from NSW, states that do allow employers to direct staff to use their LSL must give more than a months’ notice. Here’s a breakdown of how long each state must give:

• NT  – Two months’ notice 
• ACT – 60 days’ notice 
• QLD – Three months’ notice 
• SA – 60 days’ notice 
• VIC – 12 weeks’ written notice

NSW changed its legislation last year to address COVID-19. Employers can provide less than a months’ notice to direct an employee to use their LSL, but the employee must agree to the truncated notice period. 

NSW employees can also take a short period of LSL, less than a month, if their employer agrees. This change is in effect until March 2022.

4. What award flexibilities are available to employers?

Last year’s Schedule X award variations introduced pandemic leave and changes to how employees can take annual leave. These variations have expired for most awards, but a number of awards are still impacted. You can see the full list here.

Employees under those awards are entitled to two weeks of unpaid ‘pandemic leave’. They can also take double the amount of annual leave at half pay with permission from their employer. 

“The Fair Work Commission has made it clear that they would act expeditiously if there were other circumstances where it needed to be reinstated, so employers should keep an eye out for possible changes,” says Byrnes.

A number of industry bodies have already reached out to the prime minister to consider reintroducing other powers awarded to employers last year. These were called ‘jobkeeper enabling stand down directions’ and, according to the FWC website, they allowed employers to direct staff to:

• Not work on a day or days on which the employee would usually work.
• Work for a lesser period than the period in which the employee would ordinarily work. 
• Work a reduced number of hours (compared with the employee’s ordinary hours of work). This included reducing the employee’s working hours to nil.

If the government does reintroduce these changes, it’s unlikely to happen until parliament resumes next month, says Byrnes.

5. Am I liable if an employee catches COVID-19 at work?

Finally, considering how contagious the Delta variant of COVID-19 is, the chance of catching the virus at work is much higher than before. 

If an employee catches COVID-19 while at work, then their employer could be on the hook for a compensation, explains Byrnes

“An employer would need to show that the employment wasn’t the main contributing factor to an employee catching the virus,” says Byrnes. “Otherwise the employee would likely be eligible for workers compensation.”

It’s extremely important employers are following the relevant COVID-19 safety guidelines required for their workplace. Not only to keep employees safe, but also to protect the organisation from prosecution under WHS legislation if an employee does catch the virus.

“If an employer faces WHS prosecution, proving that they took all the necessary safety measures to mitigate the risk of an employee catching COVID-19 would become fundamental to the defence.”

Ultimately, employers should be making sure they are staying up to date with this rapidly changing situation. Safework Australia has plenty of resources about employer COVID-19 safety requirements, as well as links to its state and territory counterparts.

If you have any other COVID-19 workplace questions that you’d like answered, let us know in the comments below.

Looking for more resources to cope with lockdown? Head to AHRI’s COVID-19 hub.