Whilst the health and safety of all those around us is the most important consideration during these uncertain times, many of you may also be experiencing worry over your employment status, or your responsibilities as an employer, and where you stand legally on this.
One thing to first note is the difference between a legal obligation and a moral one. As a society, we’re dealing with a great deal of unknown at the moment, which changes daily and affects us all on many levels, and I do urge you, to be compassionate to one another at this time. The law is the lowest form of ethically-enforceable behaviour, and I’d love for us as a society to support others above and beyond the legal base line, if in a position to do so.
Now is the time for us to come together and care for one another, particular those who are less fortunate.
However, within my role as a lawyer and mediator, I do want to update you on where you stand legally, when it comes to home-working, taking sick or parental leave, unpaid leave, and in terms of casual workers and contractors.
Above all, we need to follow the federal directives at this time, and I will be following updates on a daily basis.
Personal Sick Leave
Leave is not available to be taken by employees who are not ill or showing symptoms of illness
Businesses are reminded that all employees, except casuals are entitled to accrue 10 days paid personal leave per year. This includes part-time employees also. To ensure compliance with the National Employment Standards, please ensure your payroll systems have up to date balances for full-time and part-time employees in the case of extended illness.
What happens if an employee doesn’t have sick leave?
Directing an employee to remain away from work without pay where they need to be isolated would only arise where there is a materially greater risk of that employee attending at work, than other employees, and only where that risk cannot be mitigated.
This approach, under current Government Medical advice is likely to be limited to the 14-day isolation period for high risk persons as recommended by the Australian Government and should not be approached lightly.
Flexible Work and Reasonable Measures - Working from home
If you are an employer, the first thing to be aware of is that you have a duty to protect your workers and to take all reasonable measures to do so. These expected measures often depend on the size and resources available to your organisation. Many companies already operate a flexible home-working strategy and can seamlessly transition over to this model and set up divert systems for telephones.
Remember, employees do have a right to refuse to follow any unreasonable direction from an employer. If a team member fears for their safety when encouraged to continue to travel to their workplace, they are within their rights to refuse, for example.
If any of your team members are sick, as an employer you’d be in your rights to send them home for the protection of other workers. They will need to adhere to the standard sick leave process.
Several schools are closing, or parents are withdrawing their children so ensure you are above the law when compensating staff members who have to be at home. As it stands, these employees will have to follow the usual protocol in regards to carers leave and personal leave.
Many businesses are attempting to move as much business online or to home base as possible. By way of examples, A traditional business has invested over $200,000 in getting staff online and many businesses are rolling out laptops to staff to facilitate working from home. Using group conferencing systems like Microsoft Teams and cloud based sharing of information allows businesses to stay connected and continue interactions with both employees and clients. of course for those business who already operate in this way they are much more agile in their ability to move to these virtual forms of working, but unfortunately for other industries like hospitality the situation is not viable.
As an employer, its advisable to operate reasonably, and where possible introduce flexible working arrangements.
Casual employment is essentially defined by the lack of any firm commitment, by either employer or employee, about how long the employment will last as well as the hours and days on which they will work. It accordingly follows that an employer will not typically be under any obligation to offer a casual employee ongoing work and similarly, the casual employee will not be under any obligation to accept work when it is offered.
Casual workers are the most vulnerable and have no leave or other resources owing to what is due at the end of the shift. They do not possess the suite of entitlements that permanent employees typically possess at law. These entitlements include access to paid personal leave when you are sick or injured, and access to paid carers leave to provide care for somebody who may be ill. The government has stepped in to try and ease this situation by providing an Economic Stimulus Package to Employers to go towards staff wages.
Contractors & Force Majeure
Contractors also may be in a difficult situation. Many workplaces will be reducing hours and it depends on the terms of your your individual contract as to how this will affect contractors.
Many contracts in cluding contractor agreement snd supply agreements contain force majeure clauses. Force majeure refers to an ‘act of God’ and employers often include it to protect themselves should a major weather event or pandemic occur that will impact working life beyond what could be predicted or foreseen. At this time many force majeure clauses may be invoked and it could mean that the contractors are in an a vulnerable position unable to enforce their contracts. In the absence of a force majeure clause then the usual laws in relation to contract will apply.
With further restrictions many businesses will be forced to make workers redundant or to adjust contracts in order to keep staff employed if possible.
It may be possible for employers and employees to work out what is best for both parties. For example, employers and employees can negotiate changed terms of a contract to avoid redundancy. This could involve reducing hours and a working from home arrangement. If you would like assistance negotiating or mediating such agreements please contact us.
If redundancies are required, it is important to remember there are three requirements for a genuine redundancy to best avoid an unfair dismissal claim:
1. The business must no longer require the person's job to be performed by anyone because of changes in operational requirements; and
2. The business must consult with any employees who are covered by a modern award or enterprise agreement (in accordance with the relevant consultation provision); and
It must not have been reasonable in all the circumstances for the person to be redeployed within the business or an associated entity and these options ought to have been explored.
3. If redundancies are implemented, you must consider your obligation to provide:
These are unprecedented times, so if you are in doubt, obtain legal advice specific to your business, employment contract or place of work, and individual situation.
At this time of uncertainty, I would hope that we all operate ethically, with kindness and understanding, rather than defaulting to the minimum we are legally bound by.
Take care, look after others and do get in touch if you require any legal consultancy relating to the current situation.
Kayte Lewis is Principal of Voice Lawyers , Consultants and Mediators.
(02) 9261 1954