Introduction (current as at 30.03.2020)
COVID19 has had a profound impact on the Australian economy and employment landscape in Australia.
Fortunately, the Fair Work Ombudsman has prepared some helpful information to assist employers during this time. We have have reproduced this material via a creative commons licence below. In addition to the materials provided by Fair Work Commission, we make the following comments:
- Employers need to be careful when authorising flexible working arrangements. An employer is still responsible for ensuring that the employee has a safe working environment even if the employee is working from home. Some employers are minimising their risk in this respect by:
- having the employee carry out a risk assessment of their home office and determine if they are at risk;
- having a workplace health safety officer inspect the home and carry out a risk assessment via video facility;
- training staff in workplace health safety assessment and checking their workplace;
- a working from home policy should be developed that deals with common risks that occur while working from home.
- The above steps may not work and may not remove the risk however they may serve to reduce the risk of incidents occurring. Records should be kept.
- Stand downs, redundancies and employment terminations are being carried out quite quickly and often without legal consideration. While a crisis is sweeping Australia, it has not waived the employment laws and rights of employees. A stand down without pay, redundancy or employment termination if carried out unlawfully may entitle an employee to compensation and further rights. What fits for one person, may not fit for another. We suggest that every employer seeks advice from a qualified advisor before taking a step in this respect. We provide the following examples so that you can see what we are talking about:
- As the Fair Work Ombudsman information details below, stand downs can occur where the business is directed to close but not because of a mere downturn in work. Therefore, as QANTAS was forced to ground its fleet because of the travel bans, it may have been legal to stand down its staff who would have ordinarily flown those routes (and provided that they attempted to redeploy the staff inside the organisation).
- However, a retail clothing store may not be able to stand down its staff because of a downturn because it has not been directed to close. However, if it was a small business (as defined by the Fair Work Act) it may be able to make the staff redundant with minimal or no payout.
- We would not be surprised if 6 months sees a significant spike in Fair Work Commission cases. You should ensure that you are not caught out.
- There are so many variables that apply to every business. Therefore you need to seek independent advice.
- The information on this page is general guidance only and not legal advice. Do not rely on the information on this page before making a decision as the information may not be relevant to you.
Coronavirus and Australian workplace laws (provided by Fair Work)
Arranging flexible work
There are a range of flexible working arrangements that employers and employees can explore together that may suit their individual needs and circumstances. These include:
- working from home
- changing the number of hours an employee works
- changing the start or finish times of employees’ shifts
- changing patterns of work, such as rostering arrangements
- changing the type of work done by employees.
Flexibility in the workplace allows employers and employees to make arrangements about working conditions that suit them. Employers and employees need to consider and comply with any requirements under the Fair Work Act, an applicable award, enterprise agreement, employment contract or workplace policy.
More information:
Using paid leave
Employers and employees are encouraged to explore options that enable an employee to take their accrued leave entitlements during the coronavirus outbreak. Options include:
- taking accrued annual leave
- taking any other paid leave (such as long service leave or paid leave available under an award, enterprise agreement or employment contract)
- directing employees to take accrued annual leave in certain circumstances
- taking any other paid leave by agreement between the employee and the employer.
Employers can choose to provide special paid leave to employees who are affected by the outbreak, for example if they’ve stood down employees.
More information:
Using unpaid leave
In many circumstances, employees won’t have access to paid leave during the coronavirus outbreak. For example, if they are permanent but have already used all their accrued leave entitlements. In these situations, employers and employees can agree for an employee to take unpaid leave.
Under the Fair Work Act, unpaid leave is also available for employees in certain circumstances, such as unpaid carer’s leave for casual employees.
More information:
Standing down employees
Employers may be able to stand their employees down without pay during the coronavirus outbreak for a number of different reasons. These can include where:
- the business has closed because of an enforceable government direction relating to non-essential services (which means there is no work at all for employees to do even from another location)
- a large proportion of the workforce is in self-quarantine meaning the remaining employees can’t be usefully employed
- there’s a stoppage of work due to lack of supply for which the employer can’t be held responsible.
Importantly, employees can be stood down without pay under the Fair Work Act if they can’t be usefully employed because of a stoppage of work for any cause for which the employer can’t reasonably be held responsible. Employers should exercise the option to stand down cautiously, because if they stand down their employees unlawfully, their employees may be able to recover unpaid wages.
Enterprise agreements and employment contracts can have different or extra rules about when an employer can stand down an employee without pay, for example, a requirement to notify or consult.
Employees that are stood down remain employed during the period of the stand down.
More information:
Ending employment
If other options have been exhausted, or if they aren’t feasible, some employers may need to make their employees’ positions redundant in response to a business downturn caused by the coronavirus outbreak. Where this happens, employers must make sure they comply with any requirement to notify and consult about the redundancies under an applicable award, enterprise agreement, employment contract or workplace policy, and make reasonable efforts to find their employees other jobs.
They also need to provide those employees with their correct entitlements, which may include notice, redundancy pay and payment of any accrued leave entitlements.
The Fair Work Act protects employees from being dismissed for a number of reasons, including:
- because they are temporarily away from work because they are sick (such as with coronavirus)
- discrimination
- any reason that is harsh, unjust or unreasonable or another protected right.
Flexibility in the workplace allows employers and employees to make arrangements about working conditions that suit them. Employers and employees need to consider and comply with any requirements under the Fair Work Act, an applicable award, enterprise agreement, employment contract or workplace policy.
More information:
Business bankruptcy & insolvency
During these challenging and unprecedented times, some businesses may need to close because they are no longer profitable or run out of money.
This can mean that employees lose their jobs, and in some cases where a business is bankrupt or goes into insolvency, employers may not be able to pay their employees the wages and entitlements they’re owed.
When an employer is bankrupt, or goes into liquidation or insolvency, employees may be able to get help through the Fair Entitlements Guarantee.
Sometimes, an employer might close their business and abandon it without placing it into liquidation. Where this happens, the Australian Securities and Investments Commission (ASIC) may be able to help recover unpaid employment entitlements.
More information:
Copyright Notes
© Fair Work Ombudsman www.fairwork.gov.au
Information (Licenced Materials) provided on this page is licenced under a Creative Commons Attribution 3.0 Australia licence (Licence). You can view a copy of the Licence on the Creative Commons Australia website 
and as amended on this Fair Work Copyright Information Page.
