As a result of the economic disruption caused by COVID-19 (coronavirus), employers are in the unenviable position of navigating the changing employment law landscape.
The Australian Government has rushed through a “JobKeeper” package designed to keep Employees and Employers linked with wage subsidies. This article is for those that won’t fall into the category that the subsidy is designed for. More information on the subsidy can be obtained here on the Australian Government Website https://www.australia.gov.au/
Some employers are subject to a forced shutdown (including food vendors, food courts, beauty and wellbeing services, theatres, casinos, community recreations centres, fitness centres and gyms), others are left to adapt their business to a working from home model (including most professional services) and some employers cannot adapt to this new landscape (including construction and other industries where the chain in supply and demand has been broken or employees cannot work from home) and will need to consider whether standing employees down or making them redundant is the appropriate step to take.
It is essential that employers obtain independent legal advice in relation to their specific circumstances as it is clear that the government directives are not a “once size fits all”.
There are a number of elements that employers must turn their minds to when making these important decisions. Further, as the government directives change, employees should keep their employees informed of these changes, implement polices as required and generally keep their employees informed about operational changes and the outcomes, in real time.
If your employees can work remotely, they should. This is the current directive from the government, however, in a practical sense, there are many things to consider if your employees are going to work from home for an ongoing period.
(a) Your employees need to be adequately set up to work from home
(i) For example, do they have internet, privacy, a workspace etc.
(ii) Employers are not obliged to pay for a home set up which means that if an employee does not have the requisite set up, they may not meet the definition of being able to work from home.
(iii) Employees need to be safe, as work health and safety laws still apply if an employee’s workplace is their home.
(iv) Employers need to brief their employees of the working at home expectations.
(v) It may be that operations changes occur due to adapting to the working at home model.
If there is a stoppage in work, it may be lawful for an employer to stand down employee(s). For example, businesses that have been forced to shut down and/or have employees who are unable to work from home, will experience a stoppage in work.
Each circumstance will be different, however, if there is a partial stoppage in work (ie workflow has decreased or some roles have experienced a stoppage but other roles have not) it may be appropriate to stand down certain employees and not others.
So long as the stoppage is caused by COVID-19 and not the employer, this is a viable option for many employers. Employers will also need to consider whether the impacted employees may be usefully redeployed within the business.
Stand downs have certain criteria and an employment lawyer can help determine if this is viable option for your business.
It may also be the case that the operational changes caused by COVID-19 will result in certain roles becoming redundant within businesses.
Genuine redundancy obligations continue to apply including:
(a) the role must no longer be required to be conducted by anyone;
(b) employees must be unable to be meaningfully redeployed within the business; and
(c) employers cannot be discriminatory when dismissing employees via redundancy.
For example, if there are a number of the employees conducting the same role and there is a reduced number of employees required for that role, a stand down may be more suitable than a redundancy.
There may also be applicable consultation requirements regarding operations changes. Also, if there are more than 15 redundancies within one workplace, the employer is required to inform Centrelink.
It is important to understand the specific requirements pursuant to the applicable bargaining agreement or award as the redundancy and consultation requirements can be vastly different in different industries and under different instruments.
Other options may include:
Taking leave: employers cannot force employees to take leave during this time, although they may invite employees to consider whether they wish to take leave. So long as there is agreement, an employee may take leave. This may be an ideal option for employers, for example, who have employees with healthy leave balances.
Reduced hours by agreement: employers might discuss the option of reducing hours to part-time, for a period of time. Employers cannot force employees to accept this option and reducing hours must occur by agreement and in accordance with the National Employment Standards.
If you require advice on how to deal with employees then you should an employment lawyer to give you definitive advice on your situation.
Employment issues that are not handled correctly can lead to fair work claims from an employee. It is important that you should ensure your business is protected and that you are acting within the Law. There is heightened risk during this time particularly as business owners are having to navigate very difficult situation and making decisions and potentially not considering all the possible outcomes.
It is also a good time to ensure that employment agreements are up to date and that other workplace policies are enforced to ensure that your business is protected.
Getting the right advice during this time is crucial and particularly when making decisions that can leave your business being financially exposed. Trading conditions in the coming months will no doubt be difficult and it is important not to burden this with disputes and employee claims.
Please note: the above article is not legal advice. Every circumstance is different. It is critical that you obtain legal advice in relation to your personal circumstances before taking any action.
The PCL Lawyers employment lawyers are experienced in dealing with crisis situations. We have the experience and the team to provide you with timely advice. Contact us today to confidentially discuss your situation on 1300 907 335.
Please note: The above is not intended to be legal advice. Every circumstance is different. Always seek legal advice in relation to your individual situation.
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