In the days since the World Health Organisation (‘WHO’) announced on 11 March 2020 that COVID-19 is a pandemic, we have seen a significant increase in concern in workplaces and the society at large in Australia and across the globe. In response, some employers in Australia have considered or taken measures which go beyond what they are legally entitled to do, exposing them to other risks to their business.
In times of uncertainty and unfamiliarity, there is a temptation to at least do something. While it is important to act, the imperative in times like this is to act wisely. Employers need to move both quickly and cautiously in order to ensure that in addressing one risk they do not create another risk or a number of risks to their business.
Given the uncertainty surrounding COVID-19, it can be tempting to prioritise one aspect of employer obligations over another. However, it is essential for employers to ensure that they walk a path which ensures they comply with the gamut of laws which regulate employment. For example, WHS obligations must not take precedence over obligations in anti-discrimination legislation.
This is not the time for rash or unilateral decisions by employers. Informed and efficient decision-making together with consultation with employees is vital, both in terms of ensuring compliance with employment laws and ensuring you receive the cooperation you need.
While COVID 19 has significant implications for the society and the economy, in the employment space it is best understood through the lens of work health and safety (‘WHS’) obligations.
WHS is a shared responsibility between persons controlling a business or enterprise (‘PCBU’), including employers, and workers.
The key obligation of employers under the Model WHS legislation (which applies across Australia other than in Victoria and Western Australia) is to ensure, so far as reasonably practicable, the health and safety of workers. ‘Reasonably practicable’ is what is reasonably able to be done to ensure WHS taking into account and weighing up all relevant matters including:
- the likelihood of the hazard/risk occurring; and
- the degree of harm that might result from the hazard/risk; and
- what the PCBU knows or ought to know about the hazard/risk and ways of eliminating or minimising the risk; and
- the availability and suitability of ways to eliminate or minimise the risk; and
- after assessing the extent of the risks and the available ways of eliminating or minimising the risk, the costs associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
It is important to note that:
- for the purpose of WHS legislation, ‘workers’ include not only employees but also contractors/ subcontractors, employees of a contractor/subcontractor, an employee of a labour hire company, an outworker, an apprentice/trainee, a student gaining work experience and volunteers.
- workers also have obligations – to take reasonable care for their own safety and the safety of others, to comply (so far as they are reasonably able) with any reasonable instruction given by the PCBU (including an employer) and to cooperate with any reasonable policy or procedure of the PCBU (including an employer) relating to WHS which has been notified to workers.
The cornerstone of WHS compliance is risk assessment and consultation. Employers need to be mindful of this when responding to COVID-19. Risk assessment and risk management measures must include consultation with workers in order to ensure compliance with WHS legislation.
Employers need to be mindful that rather than removing a risk to health and safety, they may be simply shifting the risk if they require employees to work from home. This is because risks to health and safety apply wherever work is carried out. Employers cannot avoid their obligations to ensure health and safety in the ‘workplace’ by requiring an employee to work in their home. They need to ensure the employees’ health and safety when working at home so far as this is reasonably practicable.
Employment contract – rights and responsibilities
A core duty of the employment relationship is that an employee must comply with lawful and reasonable directions given by the employer. While a written contract may have an express term to this effect, all employment contracts (written or not) have this obligation implied into them under the common law.
Whether or not a direction will be both lawful and reasonable is assessed on a case by case basis.
An employer who seeks to rely upon a direction needs to be able to demonstrate how the direction is both lawful and reasonable. An employer who is unable to demonstrate that these conditions have been satisfied is at risk of being in breach of the employment contract and relevant legislation. It is not enough to hope for the best when issuing directions; it is essential to ensure that you are entitled to issue the direction, usually by seeking advice from an expert in employment law and, where applicable, informed by medical advice.
For example, a direction that a person of Italian, Iranian, Chinese or South Korean ancestry remain away from the workplace even though they have not recently travelled overseas or have any symptoms of COVID-19 would be neither reasonable nor lawful. However, a direction that an employee remain away from work in circumstances in which they have travelled overseas recently, especially if they have been to parts of the world which have experienced high levels of COVID-19, and who is experiencing symptoms of that condition would be both reasonable and lawful provided that this was subject to review and the results of medical testing.
The COVID-19 crisis is not an excuse for an employer to disregard some of their usual obligations to employees.
This means that employers:
- should focus on gaining the informed consent of their employees to the measures they wish to take, rather than seeking to impose them – informed consent is best obtained through providing clear, accurate and relevant information to employees, providing them with time to digest that information and giving them an opportunity to ask questions and suggest alternatives;
- cannot force an employee to take personal/carer’s leave unless the employee is in fact unfit to work – the fact that they have symptoms of COVID-19 or that they are a potential risk if they attend the workplace does not necessarily mean that an employee is unfit to work;
- can only require an award/agreement employee to take annual leave in accordance with the annual leave provisions in the award/agreement;
- can only require an award/agreement free employee to take a period of paid annual leave if the requirement is reasonable – whether or not it will be reasonable will need to be determined on a case by case basis, preferably with legal advice;
- must ensure that measures they introduce do not amount to either direct or indirect unlawful discrimination:
- direct discrimination arises when a person with a particular characteristic (e.g. sex, race, disability, age) is treated less favourably than another person without that characteristic;
- indirect discrimination arises when an employer imposes a requirement or condition which a person with a particular characteristic is unable to comply with or has difficulty complying with, unlike people without that characteristic
The term ‘stand down’ refers to a situation in which an employer may require an employee to not attend work and not be obliged to pay them the wage or salary they would otherwise be entitled to.
An employer may only stand down an employee in very limited circumstances:
- when there is an express term in an employment contract which permits a stand down – this is an unusual term to have in a contract and even if you have one, you should seek advice before seeking to rely upon it;
- where there is an express provision in an enterprise agreement – to be certain that you can rely upon the provision, you should first seek advice;
- when a stand down is permitted under s.524 of the Fair Work Act 2009 – under this provision an employer may stand down an employee during a period in which the employee cannot be usefully employed because of one of the following circumstances: industrial action (other than industrial action organised or engaged in by the employer); a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown; a stoppage of work for any cause for which the employer cannot reasonably be held responsible.
Clearly the first two of these criteria do not apply to the COVID-19 crisis. The third criteria has potential application, however it will not apply merely because an employer has formed a view that the best way to manage risk is to require employees to remain away from the workplace. A discretionary act by an employer will not satisfy the third criteria. However, it is probable that a lockdown enforced by a government or a building owner would be sufficient.
If an employment contract or an enterprise agreement has a provision permitting stand down, the employer cannot rely on s.524 when standing down any employee. In these circumstances the employer must only stand down an employee in accordance with the express term in the contract or enterprise agreement.
In the absence of any of these sources of an entitlement to stand down, any decision by an employer to stand down an employee will be in breach of one or more provisions of the Fair Work Act 2009 (e.g. unfair dismissal, breach of a general protection, breach of one or more National Employment Standards, unlawful termination and breach of a modern award or enterprise agreement).
Questions you may have
- Can I require my employees to work from home?
You can only require an employee to work from home if either:
- the employee is the subject of a public health order requiring them to self-isolate at home; or
- you can demonstrate that this is necessary in order to ensure that you comply with your WHS obligations – whether or not you will be able to do this will need to be assessed on a case by case basis.
If you do require an employee to work from home, you need to conduct a risk assessment and ensure the health and safety of the employee in that location so far as this is reasonably practicable.
- Can I require my employees to remain away from the workplace and not pay them?
You can only do this if you are legally entitled to stand down employees – either because of an express provision in an employment contract or enterprise agreement or because you can demonstrate that s.524 of the Fair Work Act 2009 applies to you.
- Can an employee make a workers compensation claim if they are infected with COVID-19 by another employee or other person in the workplace?
An employee will be able to make a claim if they can demonstrate that they satisfy the criteria in relevant workers compensation legislation.
- If an employee tests positively to COVID-19, do I have to shut down my business?
In this eventuality, you need to seek advice from the relevant government agency – for example, the relevant State or Territory Department of Health.
- Is an employee who does not attend work as a precaution but is not unwell able to access paid personal leave?
Technically, no. This is because personal leave is an entitlement only when an employee is unfit to work because of a personal illness or injury. However, an employer may, as a matter of discretion, agree to this.
If an employer does agree to approve leave for one or more employees, they need to ensure that they consider all applications for leave of the same or similar type in a manner which is compliant with anti-discrimination laws.
- Can an employee who is responsible for caring for another person who has COVID-19 or who is otherwise in need of care access carer’s leave?
Yes, if that person is a member of their immediate family or household and the person they are caring for needs care or support because of a personal illness or injury affecting them or an unexpected emergency affecting them and if notice and evidence requirements are satisfied.
‘Immediate family’ is defined in the Fair Work Act 2009 as the spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee or their spouse/de facto partner.
- Can an employee who keeps their child at home as a precaution access carer’s leave?
Technically, no. However, an employer may, as a matter of discretion, agree to this.
- Can I require an employee to change their hours and days of work?
If an employee is an award/agreement employee, any change to their work hours must be in accordance with the award/agreement, otherwise you will be in breach of the award/agreement.
If an employee is award/agreement free, any change to their work hours must be in accordance with any express provision in a written employment contract or be by consent, otherwise you will be in breach of the employment contract (written or not).
- Can an employee apply for a change to their hours and days of work?
Yes. An employment contract (written or not) can always be the subject of negotiation. Any change to the contract needs to be by mutual consent.
If the employee is an award/agreement employee, you need to ensure that any change in hours or days of work is compliant with the award/agreement.
Certain employees have an express right under the Fair Work Act 2009 to request a flexible working arrangement (‘FWA’). This includes employees who are the parent of or who have responsibility for the care of a child of school age or younger, employees who are a carer within the meaning of the Carer Recognition Act 2010, an employee who has a disability and an employee who is 55 years of age or older.
An employee who makes a request for a FWA needs to document this request in writing and set out the details of the change sought and the reasons for the change. Any request for a FWA must only be refused by an employer on reasonable business grounds. The employer must respond in writing to the request within 21 days. Where a request is refused, the employer must provide written reasons for the refusal.
- Can I require my employee to provide me with information about their health?
Yes, you can require an employee to provide you with information if you can demonstrate that the information is necessary for you to comply with your WHS obligations.
You need to ensure that you collect, use and store the personal information you gather from an employee in accordance with your obligations under Privacy legislation.
- Can I tell my employees the name of any employee who tests positive to COVID-19?
Subject to the terms of any public health order and whether the employee provides consent for disclosure, an employer should not disclose this information because of privacy law and other restrictions. This information can potentially be disclosed by the person who has been diagnosed with COVID-19 or a government agency. The fact that an employer cannot disclose the name of the employee to other employees does not mean that the employer can avoid its obligations under WHS legislation. The employer should seek the advice of the State or Territory Department of Health and WHS regulator about how to manage this situation.
WHS compliance is often more about taking simple steps than dramatic measures. Some of the simple steps you can take immediately are:
- Appoint a crisis management team (consisting of internal and, where appropriate, external experts in risk and crisis management, WHS, relevant laws, finance, human resource management and communication) – if you have an existing team, review it to ensure you have access to the expertise you need
- Make WHS a standing agenda item at all meetings of the Board, meetings of the senior leadership team and meetings held between management and staff – this is best practice in all situations and if it is not a practice you already have in place, now is the time to institute it
- Develop a coherent risk management plan and document it – If you have an existing plan, review it and identify if it is fit for the purpose of responding to COVID-19; if it is fit for purpose, apply it; if it is not fit for purpose, update it now
- Communicate clearly, accurately and regularly – with employees, clients, customers, suppliers and other visitors to your work sites – about what steps you have taken to reduce any risk to their health and safety and what they need to do to support you in this
One of the most important lessons I have learned from more than two decades of advising employers is that what an employer does today in relation to one or more of its employees is being watched and assessed by other employees. A fair approach today not only ensures better employment relations now; it pays dividends in the future. Equally, an unfair approach today will cause damage both now and in the future, not only in relation to a particular employee or employees, but potentially right across the workforce. The ripple effect in employment relations should never be underestimated.
COVID-19 is an opportunity for employers and employees to work together in a constructive manner for mutual benefit. The extent to which employers and employees alike will respond in a constructive way and work cooperatively, or choose instead to pursue their own perceived best interests alone, will be the extent to which that employer and their employees will be made stronger, or weaker. For all our sakes, let’s ensure that wisdom prevails.
Need help? Contact me on 02 8215 1539 or at firstname.lastname@example.org
Elizabeth Devine of Devine Law at Work is a specialist in employment law and conflict management. Based in Sydney, Australia, Elizabeth provides advisory, educational and conflict management services to employers across Australia and to their related entities across Asia, North America, the United Kingdom and Europe.