This page was last updated: 27/03/2020 at 4:00pm
Master Plumbers direct: 9329 9622 – Business Victoria hotline: 13 22 15
The Australian Taxation Office (ATO) has today (24/03) updated its website with essential information about tax and superannuation changes that have now become law following the passage of the Government’s Economic Support Package through the Parliament. The site is ato.gov.au/coronavirus
Commissioner of Taxation Chris Jordan acknowledged that many people are being heavily affected by the challenging economic conditions created by the outbreak of COVID-19 and that the ATO is standing by ready to help where it can.
The ATO’s Coronavirus page provides easy-to-understand and detailed information about what people need to know or do in order to get access to the tax or superannuation measures as announced by the Government as part of its economic response to COVID-19.
- giving individuals early access to their superannuation
- providing cash flow assistance for employers
- increasing the instant asset write-off, making more businesses eligible
- backing business investment by accelerating depreciation deductions.
Commissioner of Taxation Chris Jordan said “each of the measures have different timings, eligibility, and processes. Some will be applied automatically and others will require an application, so I recommend heading to ato.gov.au/coronavirus to understand what is possible”.
Mr Jordan also reminded the community of other options available to assist businesses impacted by COVID-19 in addition to the new measures announced by the Government.
“In these difficult and uncertain times, the ATO is doing everything it can to reduce stress from tax and super related obligations,” Mr Jordan said.
Options available to assist businesses impacted by COVID-19 include:
- Deferring by up to six months the payment date of amounts due through the business activity statement (including PAYG instalments), income tax assessments, fringe benefits tax assessments and excise.
- Allowing businesses on a quarterly reporting cycle to opt into monthly GST reporting in order to get quicker access to GST refunds they may be entitled to.
- Allowing businesses to vary Pay As You Go (PAYG) instalment amounts to zero for the March 2020 quarter. Businesses that vary their PAYG instalment to zero can also claim a refund for any instalments made for the September 2019 and December 2019 quarters.
- Remitting any interest and penalties, incurred on or after 23 January 2020, that have been applied to tax liabilities
Working with affected businesses to help them pay their existing and ongoing tax liabilities by allowing them to enter into low interest payment plans.
- Businesses wanting to utilise any of these options can contact us over the coming weeks. It is not necessary for businesses to contact us immediately.
- Employers will still need to meet their ongoing super guarantee obligations for their employees.
Outside of business, the ATO will also work with individuals experiencing financial hardship, and their tax agents, and will apply appropriate tax relief measures for serious and exceptional circumstances, such as where people cannot pay for food or accommodation.
“If you’re impacted by COVID-19, and require immediate assistance contact us to request support on our Emergency Support Infoline 1800 806 218. If you do not require immediate assistance you can contact us when you’re ready, to discuss your situation”, Mr Jordan said.
From today, the Morrison Government’s Business Hotline – 13 28 46 – will be expanded to provide specialist advisers and extended hours to support small and medium businesses impacted by the COVID-19 pandemic.
Operations at the www.business.gov.au 13 28 46 Contact Centre will increase from five days per week to seven days per week, and provide an additional two hours a day of support outside standard operating hours for the first month, answering calls from 7.00 am to 11.00pm AEST.
The Government is rolling out comprehensive, targeted assistance in response to the COVID-19 pandemic and we want businesses who are looking for information to be supported.
• Coronavirus Supplement: $550 per fortnight payment for recipients of the JobSeeker Payment, Youth Allowance, Parenting Payment, Farm Household Allowance and Special Benefit for the next six months
• Early access to superannuation for struggling Australians
• Temporary reduction of minimum super drawdown rates
• Extra $750 for some households, including those on social security and veteran income support and eligible concession card holders
• Reduction of deeming rates by a further 0.25 percentage points
• Small and medium businesses with turnover under $50 million, along with not-for-profit charities, will be eligible for a tax-free cash payment of up to $100,000
• Support for airlines
• Temporary relief for financially distressed businesses
• Coronavirus SME Guarantee Scheme: Government to guarantee half a bank’s loan to a small or medium enterprise impacted by the virus
With the rapidly evolving nature of COVID-19 and its unprecedented implications on what is familiar for our people, our communities and you - our key stakeholders, I wanted to update you on the decisions and actions the Victorian Building Authority is taking to support our industry.
As Victoria’s regulator of our vital building and plumbing industries, our actions are focused on the safety and wellbeing of our people and the industries and communities that we serve.
- We are focused on business continuity as the situation evolves each day. VBA staff are working hard to establish and test the improved technology capability and business processes that will be needed to maintain the essential construction services you provide during this unprecedented time. Progress over the last 12 months to digitise interfaces has put us in good stead.
- We are putting in place the enabling IT infrastructure and technology platforms for unprecedented levels of remote access for industry, consumers and our own people. Our teams are progressively testing and adjusting expanded remote working practices.
- Access to the systems that industry relies on, including BAMS and eToolbox, are continuing to operate as normal during this phase of response. Should you be experiencing any delays with VBA services do not hesitate to advise through normal channels.
- Face-to-face meetings with external stakeholders are being replaced with teleconference and video conferencing technology in line with Victorian Government advice. We thank you for adapting your engagement with us quickly.
- The VBA’s monitoring and enforcement activities so important to the sustainability of the building and plumbing industry continue. Our teams are acting in accordance with COVID-19 protocols including social distancing and good hygiene practices. Our reception at Goods Shed North also remains open.
- Face-to-face licencing and registration interviews are continuing where applicants want to progress their application with the new protocols outlined above.
- The Building Appeals Board (BAB) have advised they are identifying hearings that can be conducted without parties being physically present and investigating supporting technology to enable directions and final hearings to be conducted via teleconference or video conferencing technology where appropriate.
Importantly, as a public sector entity within the Department of Environment, Land, Water and Planning (DELWP), we will continue to be guided by the advice and response of the Victorian Government and Victoria’s Chief Health Officer (CHO).
As we all grapple with the shared challenges ahead, I want to ensure you know that the VBA will play its part in supporting you and your businesses where we can. Should the need arise for short term solutions to keep your staff employed - irrespective of their back or front office, technical or field role - do not hesitate to reach out to see how we can work together to keep the dedicated, hard-working and talented people that underpin our vital industry employed.
- States and territories are looking at how relief can be provided to rental tenants in hardship cases to maintain tenancy.
“Relief can be provided for tenants in both commercial tenancies and residential tenancies, to ensure that in hardship conditions, there will be relief that will be available, and ensuring that tenancy legislation is protecting those tenants over the next six months at least.”
- New crowd restrictions – maximum limit of “four square metres provided per person in an enclosed space”.
“So for example, if you’ve got a room, if you’ve got a premises, if you’ve got a meeting room or something like that, that’s 100 square metres, then you can have 25 people in that room.”
- Budget postponed from May to October (6th).
- The PM has announced an additional $444.6 million in funding from the Commonwealth to support aged care facilities. This will be on top of the previous $100 million announced last week. It includes $234.9 million for a retention bonus to all staff to continue working in both residential and home care.
- Schools to remain open
“It is in the national interest to ensure that we keep schools open, and I want to thank all of those schools who have been putting those arrangements in place.”
Today the Australian Banking Association announced Australian banks will defer loan repayments for small businesses affected by COVID-19 for six months.
The assistance will apply to more than $100bn of existing small business loans.
Today’s announcement will make a big difference for the hundreds of thousands of businesses we represent and the people whose jobs depend on them.
Master Plumber’s first priority is the health and wellbeing of all staff and students, and as such we are providing you advice about how the school is managing the unfolding situation with COVID-19.
We want to reassure you that the school is well-prepared for the impact of COVID-19 and we are monitoring the latest advice from state and federal health departments.
Currently the RTO is operating as normal and being vigilant by following the recommended good hygiene practices and asking staff and students to self-exclude from school if they have:
- Visited any of the identified high-risk countries within the past 14 days
- Following exposure to any confirmed cases
- Have signs or symptoms such as cough, fever, sore throat or difficulty breathing until such time as they can visit a medical practitioner.
If a student develops symptoms as mentioned above whilst attending trade school, their employer will be contacted, and they will be asked to seek medical advice and keep the RTO advised of their condition.
PICAC have also issued the following details for students attending classes at PICAC facilities:
- PICAC now requires all new students and visitors to read and follow the conditions of entry to campus. These have been posted at all entrances to the facility
- Social distancing has been implemented on campus. This means limiting direct and close contact. For further information about social distancing, please see this fact sheet
- In the theory classrooms, desks will be rearranged where possible to create more space between students
- Morning tea and lunch breaks will be staggered where possible to avoid having large groups of students using the lunchroom facilities at the same time. We suggest taking lunch outside where feasible.
- Hand sanitiser is available throughout PICAC campuses. Everyone is encouraged to use the hand sanitiser in addition to regular hand-washing, in particular before and after eating or visiting the bathroom
- If you start to feel unwell or develop any symptoms, go home and seek appropriate medical care and keep us informed of the outcome.
- If you are otherwise concerned call the Coronavirus Health Information Line 1800 020 080
This 30-minute online training module is for health care workers in all settings. It covers the fundamentals of infection prevention and control for COVID-19.
The ATO understands this year has been difficult for a number of small businesses, with a number of recent events leading to economic and personal challenges. If you are experiencing financial difficulties with your tax and super obligations because of COVID-19 (novel coronavirus), phone the ATO Emergency Support Infoline on 1800 806 218 for help tailored to your circumstances.
The Government also recently announced on 12 March 2020 its economic response to COVID-19. Subject to passage of legislation, the ATO will implement a series of administrative measures to further assist you.
For more information view www.ato.gov.au/coronavirus
Facebook – https://business.facebook.com/atogovau/?business_id=1008462902507689
Twitter – https://twitter.com/ato_gov_au/status/1240069181027934209
LinkedIn – https://www.linkedin.com/feed/update/urn:li:activity:6644118959379619840
In the interest of your wellbeing and in response to the Australian Government’s announcement advising against holding non-essential gatherings, our face-to-face workshops are currently on hold. We will update this information as soon as practicable; in the meantime, you can register for an online webinar.
PM Scott Morrison fronted the press in Canberra yesterday with Chief Medical Officer - Dr Brendan Murphy to discuss the Government’s latest recommendations on managing the coronavirus crisis in Australia.
The following recommendations were handed down:
- Schools should remain open (PM saying that his children will remain in school)
- There are no plans for a nationwide lockdown
- Non-essential gatherings:
- Indoor limitation of 100
- External limitation of 500
- Exemptions include parliaments, hospitals, schools, unis, offices, airports, supermarkets, places of custody (correctional facilities), factories, building sites
- Unprecedented warning not to go abroad
- Warning people against false information online and to seek official direction from health.gov.au and other government sites
- Encouraging social distancing of 1.5m and increased hand hygiene
- Government is currently working on round two of a financial stimulus package
Summary of Federal Government Stimulus Packages from our partner Cornwalls
As you will be aware, the federal government has announced two stimulus packages over the last week, aimed squarely at assisting the business community. The following is a summary of those measures.
Please note that we are working off the announcements themselves. There appear to be ongoing changes as the federal government seeks to better target its own measures. Therefore, the legislation itself may not strictly reflect the announcements.
What is clear is that this is a genuine attempt by Canberra to economically stimulate the business community and / or prevent a substantial increase in the unemployment rate in Australia.
We believe that overall, these measures are beneficial to business - especially those with a turnover of up to $50 million. It is certainly worth reviewing the measures and determining which parts of the stimulus packages may apply to you.
In addition, the speculation is that, in time, the federal government may announce a third tranche of measures in order to further stimulate the economy during the period of the COVID-19 pandemic.
We now turn to the measures announced to date.
The stimulus packages aim to assist small business entities (SBEs) by providing cash flow in the short term. For the purposes of this article, an SBE is a small to medium business entity with an aggregated annual turnover under $50 million.
The IAW threshold will increase from $30,000 to $150,000. Businesses with aggregated annual turnover of less than $500 million (up from $50 million) will be eligible for the IAW until 30 June 2020. This will apply on a per asset basis up to $150,000 exclusive of GST. The benefit of the IAW application on a per asset basis is that it enables eligible businesses to write-off multiple assets.
This incentive will only be available for assets first used, installed or acquired from 10:30am AEDT 12 March 2020 until 30 June 2020.
A time-limited 15 month investment incentive (expiring on 30 June 2021) will be introduced in order to support business investment and economic growth by accelerating depreciation deductions. Under this measure, businesses with aggregated turnover below $500 million will be able to immediately deduct 50% of the cost of an eligible asset on installation. Existing depreciation rules will apply to the balance of the asset’s cost.
Below is a table that illustrates the IAW and BBI deduction amounts in the first year of acquisition, as compared to the existing small business simplified depreciation pool rules, using an asset with a cost of $260,000.
Not-for-profits and SBEs will receive a tax credit of $100,000, with a minimum credit of $20,000. Eligibility will be based on the prior financial year turnover. The payment will be delivered by the ATO as an automatic credit in the activity statement system from late April 2020, upon employers lodging eligible upcoming activity statements.
Eligible employers that withhold tax to the ATO on their employees’ salary and wages will receive a payment equal to 100% of the amount withheld, up to a maximum payment of $50,000 based on the March 2020 BAS.
Eligible employers that pay salary and wages will receive a minimum payment of $10,000, even if they are not required to withhold tax.
For quarterly lodgers, eligible businesses will be entitled to a maximum of $50,000 credit payable in late April 2020. The second eligible credit to a maximum of $50,000 will be payable in two instalments to a maximum of $25,000 each in the June and September 2020 BAS lodgements.
For monthly lodgers, eligible businesses will be entitled to a maximum if $50,000 credit payable in either, (depending on their specific circumstances) in late April 2020 in full, or during the June 2020 quarter subject to the application of the monthly PAYG / BAS credit formula in these rules.
Withdrawals of up to $10,000 will be available from April 2020 until 1 July 2020 for those eligible for the coronavirus supplement payment, as well as sole traders whose hours or income has fallen 20% or more as a result of the coronavirus. Eligible individuals will also be entitled to access up to an additional $10,000 from 1 July 2020 for approximately three months (the exact timing will depend on the passage of the legislation).
Superannuation minimum drawdown requirements for account-based pensions and similar products will be reduced by 50% for the 2020 and 2021 income years. This will benefit retirees by providing more flexibility as to how superannuation assets will be managed during this volatile period.
The federal government has set aside $1 billion to support regions and communities disproportionately affected by the economic impacts of COVID-19. This support includes those areas that are heavily reliant on tourism, agriculture and education. On a case by case basis, the Australian Taxation Office (ATO) will look to provide administrative relief for those who are directly affected by the virus.
The ATO has announced some specific concessions that may be available, including:
- deferring the payment date of amounts due through the BAS (including PAYG instalments), income tax assessments, fringe benefits assessments and excise for a period of up to four months;
- allowing businesses on a quarterly reporting cycle to elect to report monthly for GST purposes to obtain quicker access to GST refunds;
- allowing businesses to vary PAYG instalment amounts to zero for the April 2020 quarter. Businesses that vary their PAYG instalment to zero can also claim a refund for any instalments made for the September 2019 and December 2019 quarters;
- remitting any interest and penalties, incurred on or after 23 January 2020, that have been applied to tax liabilities; and
- working with affected businesses to help them pay their existing and ongoing tax liabilities by allowing them to enter into low interest payment plans.
The federal government will provide a guarantee of 50% to SBEs for new unsecured loans to be used as working capital. The government will provide eligible lenders with a guarantee for loans with the following terms:
- maximum total size of loans of $250,000 per borrower;
- loans of a three-year duration, with an initial six-month repayment holiday; and
- loans will be unsecured.
This scheme will commence by early April 2020 and will be made available for new loans made by participating lenders until 30 September 2020.
Small businesses will be able to apply for a wage subsidy of 50% of the apprentice’s or trainee’s wage, paid for up to nine months and commencing 1 January to 30 September 2020. The maximum subsidy amount is $21,000 per apprentice or trainee, or $7,000 per quarter per apprentice or trainee. This subsidy will only be available for businesses employing fewer than 20 full-time employees, and where the apprentice or trainee has been in training with the business from 1 March 2020.
Employers can register for the subsidy from April 2020 and claims for payment must be lodged by 31 December 2020.
Legislation to give effect to these measures will be introduced into Parliament, which resumes on 23 March 2020. It will be imperative for SBEs to consider these incentives so that action can be taken as soon as practicable.
For any advice or assistance regarding these incentives, please contact your Cornwalls representative or someone from the Cornwalls Tax team.
This article is general commentary on a topical issue and does not constitute legal advice. If you are concerned about any topics covered in this article, we recommend that you seek legal advice.
This article is current as of the time it was sent.
Coronavirus (COVID-19) – General information
Coronaviruses can make humans and animals sick. Some coronaviruses can cause illness similar to the common cold and others can cause more serious diseases, including Severe Acute Respiratory Syndrome (SARS) and Middle East respiratory syndrome (MERS). This new coronavirus originated in Hubei Province, China and the disease outbreak is named COVID-19.
COVID-19 is most likely to spread from person-to-person through:
- direct close contact with a person while they are infectious
- close contact with a person with a confirmed infection who coughs or sneezes, or
- touching objects or surfaces (such as door handles or tables) contaminated from a cough or sneeze from a person with a confirmed infection, and then touching your mouth or face.
Most infections are only transmitted by people when they have symptoms. These can include fever, a cough, sore throat, tiredness and shortness of breath.
People who have returned from a country or region that is at high or moderate risk for COVID-19 should monitor their health closely. If you develop symptoms including a fever and cough you should isolate yourself immediately and urgently seek medical attention. High risk countries include:
- Mainland China
- Republic of Korea
Moderate risk countries include:
- Hong Kong
People who think they may have been in close contact with a confirmed case of COVID-19 should also monitor their health and seek urgent medical attention.
While COVID-19 is of concern, it is important to remember that most people displaying symptoms such as fever, cough, sore throat or tiredness are likely suffering with a cold or other respiratory illness - not COVID-19.
1. Employers should provide adequate facilities or products (such as hand sanitiser) to allow employees to maintain good hygiene practices. This is the best defence against most viruses.
2. Advise any employees to self-isolate at home for 14 days if:
- in the last 14 days they have been in any of the high-risk countries listed above
- they have been in contact with confirmed cases of COVID-19
3. Perform routine environmental cleaning:
- Routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label.
- No additional disinfection beyond routine cleaning is recommended at this time.
- Provide disposable wipes so that commonly used surfaces (for example, doorknobs, keyboards, remote controls, desks) can be wiped down by employees before each use.
1. Wash your hands
- After coughing or sneezing
- When caring for the sick
- Before, during and after you prepare food
- Before eating
- After toilet use
- When hands are visibly dirty
- After handling animals or animal waste
2. Protect others from getting sick
- When coughing and sneezing cover mouth and nose with flexed elbow or tissue
- Throw tissue into closed bin immediately after use
- Clean hands with alcohol-based hand rub or soap and water
3. Avoid contact with others (stay more than 1.5 metres from people).
Specific requirements are in place for people who have returned from a country or region that is at high or moderate risk for COVID-19 or think may they have been in close contact with a confirmed case of COVID-19.
People who must isolate need to stay at home and must not attend public places, in particular work, school, childcare or university. Only people who usually live in the household should be in the home.
Do not allow visitors into the home. Where possible, get others such as friends or family who are not required to be isolated to get food or other necessities for you. If you must leave the home, such as to seek medical care, wear a mask if you have one.
If you develop symptoms (fever, a cough, sore throat, tiredness or shortness of breath) within 14 days of leaving country or region that is at higher risk for COVID-19, or within 14 days of last contact of a confirmed case, you should arrange to see your doctor for urgent assessment..
You should telephone the health clinic or hospital before you arrive and tell them your travel history or that you may have been in contact with a potential case of COVID-19. You must remain isolated either in your home or a healthcare setting until public health authorities inform you it is safe for you to return to your usual activities.
Some people who are infected may not get sick at all, some will get mild symptoms from which they will recover easily, and others may become very ill, very quickly. From previous experience with other Coronaviruses, the people at most risk of serious infection are:
- people with compromised immune systems (e.g. cancer)
- elderly people
- Aboriginal and Torres Strait Islander people
- people with diagnosed chronic medical conditions
- very young children and babies*
- people in group residential settings
- people in detention facilities.
*At this stage the risk to children and babies, and the role children play in the transmission of COVID-19, is not clear. However, there has so far been a low rate of confirmed COVID-19 cases among children, relative to the broader population.
There is no specific treatment for Coronaviruses. Antibiotics are not effective against these viruses. Most of the symptoms can be treated with supportive medical care.
You do not need to wear a mask if you are healthy. While the use of masks can help to prevent transmission of disease from infected patients to others, masks are not currently recommended for use by healthy members of the public for the prevention of infections like COVID-19.
Full and part-time employees who can’t come to work because they are sick can take paid sick leave. If an employee needs to look after a family member or member of the employee’s household who is sick with COVID-19, or suffering an unexpected emergency, they are entitled to take paid carer’s leave.
Casual employees are entitled to 2 days of unpaid carer’s leave per occasion. Full and part-time employees can take unpaid carer’s leave if they have no paid sick or carer’s leave left.
If an employee is required by the Australian Government or Department of Health to self-isolate, then this is not a direction from their employer and so must use Annual Leave or RDO entitlements for the period of absence.
An employee must give their employer evidence of the illness or unexpected emergency if their employer asks for it.
If an employee wants to stay at home as a precaution against being exposed to COVID-19, they will need to make a request to work from home (if possible) or to take some form of paid or unpaid leave, such as annual leave or long service leave. These requests are subject to the normal leave application process in the workplace.
Employees are encouraged to discuss their level of risk of contracting COVID-19 with their doctor, workplace health and safety representative or manager.
You can find up-to-date information on quarantine requirements on the Department of Health’s website.
Under work health and safety laws, employers are required to ensure the health and safety of their workers and others at the workplace (as far as is reasonably practical). Workers also have responsibilities under those laws.
If an employee is at risk of infection from COVID-19 (for example, because the employee has recently travelled through mainland China, or has been in close contact with someone who has the virus), you should request the employee seek medical clearance from a doctor and to work from home (if possible), or not work during the risk period. Where an employer directs a full-time or part-time employee not to work, the employee would ordinarily be entitled to be paid while subject to the direction. You should consider your obligations under any applicable enterprise agreement, award, employees’ contracts of employment, and workplace policies.
Employers need to balance their legal obligations, including those relating to anti-discrimination.
Increasing the Instant Asset Write-off
Increasing the instant asset write-off for investments up to $150,000 (a 5-fold increase) made before 30 June 2020, for businesses with a turnover of less than $500 million (a ten-fold increase).
Accelerated depreciation deductions
Providing businesses with a 50% depreciation deduction in the year of installation for eligible assets purchased up to 30 June 2021, with existing depreciation rules applying to the balance of the asset’s cost.
Boosting cashflow for employers
Grants of between $2,000 and $25,000 for SMEs with turnover up to $50 million, to assist with cashflow the needed to maintain operations and to continue to employ staff.
Supporting apprentices and trainees
Wage subsidies of up to 50% of an apprentice’s and trainee’s wage for up to 9 months from 1 Jan to 30 Sept 2020, up to a maximum of $21,000 per apprentice/trainee. Where an employer is not able to retain an apprentice, the subsidy will be available to the new employer of the apprentice.
One-off direct payment of $750 to social security (i.e. pensioners and NewStart recipients), veterans and other income support recipients (i.e. farm household allowance).
This is targeted at those on the lowest disposable income that are the most likely to spend any increase in income immediately. It will give them the confidence to spend now rather than save, providing a direct stimulus - particularly to small business and the retail sector, where the bulk of this money will be spent.
$1 billion to support regions worst affected by the economic impacts of CoViD19.
This will include a waiver of fees and charges for tourism businesses accessing national parks and other Federal Government administered sites.
It also includes assistance to affected businesses, including those relianton tourism, agriculture and education, to identify alternative export markets or supply chains. This will encourage businesses to diversify beyond China, which currently represents between a third and half of international demand in these sectors.
Additional, targeted measures will be developed to further promote domestic tourism, suggesting an expansion of the advertising and
marketing program begun following the bushfires.
The ATO is also providing administrative relief for some tax obligations, on a caseby-case basis, with dedicated staff specialising in assisting small business.
The following information has been prepared by the Australian Chamber of Commerce and Industry (Edition 3 updated on 26/03/2020) to assist employers manage the impact on both their workforce and their business.
The content is for general informational purposes only, it may not be applicable to your organisation and does not constitute legal advice. You should seek advice before acting or relying on any of the content.
Understanding the risk to your workplace
Employees are likely to be anxious about the recent declared COVID-19 pandemic, and could have questions about what will happen to their working arrangements and employment.
Australia’s model Work Health and Safety (WHS) laws require a person conducting a business or undertaking to ensure, so far as is reasonably practicable, the health and safety of their workers and others at the workplace. This includes providing and maintaining a work environment that is without risk to health and safety.
Employers also have a duty under WHS legislation to provide information to workers about health and safety in the workplace. You
should provide regular updates to workers about the status of COVID-19 that are consistent with information provided by the Department of Health and WHO.
Worksafe Victoria have published the following guidance material for employer responses to influenza pandemics generally:
We recommend that you provide updates to employees addressing:
- the current status of the virus in Australia (to dispel any myths);
- potential impacts on the workplace and changes to policies; and
- advice on good hygiene practices for work.
You might also be asked about whether employees will be stood down and/or paid in the event of a pandemic.
Employers have a duty to provide and maintain, so far as is reasonably practicable, a working environment that is safe and without risks to the health of employees. This includes identifying risks to health or safety associated with potential exposure to COVID19 - and taking measures to control these risks.
The current ban on non-essential, organised public gatherings of more than 500 people does not currently apply to workplaces. However, the principle of social distancing should still apply in the workplace.
Social distancing in the workplace includes:
- Stop handshaking
- Hold meetings via video conferencing or phone calls
- Defer large face-to-face meetings
- Hold essential meetings outside in the open air (if possible and video/phone not suitable)
- Promote good hand and sneeze/cough hygiene and provide hand sanitisers for all staff and workers
- Take lunch at your desk or outside rather than in the lunch room
- Clean and disinfect high touch surfaces regularly
- Consider opening windows and adjusting air conditioning for more ventilation
- Limit food handling and sharing of food in the workplace
- Reconsider non-essential business travel
- Consider if large gatherings can be rescheduled, staggered or cancelled
Employers have a duty to provide and maintain, so far as is reasonably practicable, a working environment that is safe and without risks to the health of employees. This includes identifying risks to health or safety associated with potential exposure to COVID19 - and taking measures to control these risks.
Employers are taking various measures to the control the health risks to their workforces, including:
- providing adequate facilities to enable good hygiene practices (e.g. soap, hand sanitiser, signage and reminders);
- limiting or banning non-essential work travel;
- developing infection control policies and procedures; and
- directing employees to comply with quarantine measures, particularly following travel to high risk locations.
The Department of Health has published an information sheet for employers. As the situation and corresponding medical advice is constantly changing, it is critical that employers keep up to speed with the latest information.
Employers should provide information and brief all employees and any contract staff in the workplace (such as cleaning staff), on relevant information and procedures to prevent the spread of COVID-19.
Identifying and controlling risks to workers, and other persons connected to the workplace, arising from exposure to COVID-19 may involve:
- Closely monitoring official advice, such as updates from the Department of Health and the WHO.
- Reviewing your policies and measures for infection control, including educating workers on best practice.
- Ensuring workers are aware of the isolation/quarantine periods in accordance with advice from the Department of Health.
- Providing clear advice to workers about actions they should take if they become unwell or think they may have the symptoms of coronavirus.
- Monitoring the latest travel advice on the smartraveller.gov.au website for anyone planning to travel for work.
- Considering whether work activities put other people at risk.
- Contingency planning to manage staff absences and plans to manage increased workloads.
- Providing workers with information and links to relevant services should they require support.
Workers also have a duty to take reasonable care for their own and others’ health and safety. This includes ensuring good hygiene practices, such as frequent hand washing, to protect against infections.
Coronavirus Health Information Line: 1800 020 080 – Operates 24 hour a day, seven days a week
Workers’ Compensation schemes are governed by the Commonwealth, States and Territories.
Arrangements differ across schemes however there are common threshold requirements that would apply in the case of COVID-19:
- that the worker is covered by the scheme, either as an employee or a deemed worker
- that they have an injury, illness or disease of a kind covered by the scheme, and
- that their injury, illness or disease arose out of, or in the course of, their employment.
Safe Work Australia notes “Compared to workrelated injuries, it is more difficult to prove that a disease was contracted in, or caused by, particular employment. In the case of a virus such as COVID19, establishing the time and place of contraction may become increasingly hard. Whilst the spread of COVID-19 is contained, it may be easier to establish whether contraction is work-related, for
example, if in the course of their employment a worker travels to a high-risk area with a known viral outbreak or interacts with people who have contracted the virus. However, once the virus becomes more wide-spread in the local community, establishing the degree of
contribution of a worker’s employment to their contraction of the virus will inevitably be more difficult.
Whether a claim for workers’ compensation for contracting COVID-19 is accepted will be a matter for the relevant workers’ compensation authority, applying their jurisdictions’ workers’ compensation laws. Workers’ compensation authorities will consider each claim on its merits, with regard to the individual circumstances and evidence.”
If you would like to review the different scheme wording and thresholds relating to “disease”, this can be found here.
Employers should be very careful to guard against the risks of employees contracting COVID-19 at the workplace and should ensure that any mitigating steps they take in response to COVID-19 are measured. Where employers are concerned about this issue we
strongly recommend they seek specific legal advice based on their circumstances.
Coping with anxiety and stress
The Australian Psychological Society has produced a fact sheet with tips for coping with coronavirus anxiety.
Key messages include:
- Learn the facts: Constant media coverage about COVID-19 can keep us in a heightened state of anxiety. Try to limit related media exposure and instead seek out factual information from reliable sources.
- Keep things in perspective: When we are stressed, it is easy to see things as worse than they really are.
- Take reasonable precautions: Being proactive by following basic hygiene principles can keep your anxiety at bay.
- Practise self-care: To help encourage a positive frame of mind, it is important to look after yourself.
- Tips for talking with children about the coronavirus.
Maintaining your mental health during social isolation
The Australian Psychological Society has produced a fact sheet with tips for maintaining your mental health during social isolation.
To help control the spread of COVID-19 across the country, all Australians have been asked to practice social distancing. In some cases, people are required to, or may choose to, self-isolate. Understandably, the challenges associated with social distancing and
isolation, including separation from loved ones, loss of freedom and reduced income, are leading some people to experience feelings of anxiety, boredom, frustration and fear.
Key messages include:
- Stay connected using technology: Positive social connections are essential for our mental health and can help us cope in times of stress.
- Avoid difficult situations: Limit conflict with those you are isolated with by following some simple tips.
- Structure your day: While in isolation it is beneficial to plan out your days to restore a sense of purpose and normality to your daily life.
- Helping your child through self-isolation: Set a daily routine, maintain social relationships virtually, have fun with hobbies or craft activities at home.
- Seek additional support when needed. Telehealth services are available for GP support, psychology sessions or general
What do I do if an employee is feeling unwell and suffering flu like symptoms?
According to the WHO website the most common symptoms of COVID-19 are fever, tiredness, and dry cough. Some patients may have aches and pains, nasal congestion, runny nose, sore throat or diarrhea. These symptoms are usually mild and begin gradually.
If an employee presents with these symptoms they should be directed to follow advice from the Australia Government and seek urgent medical attention if they suspect they have contracted COVID-19.
The health and safety of staff and those they come into contact with must be an employer’s top priority. This should dictate the approach any employer takes to responding to employees that may have come into contact with the COVID-19 virus.
An employee can (of course) avail themselves of their accrued sick leave if they take time off work due to being ill with the COVID-19 virus.
Under the Fair Work Act, national system employees (other than those engaged on a casual basis), are entitled to 10 days each year paid sick leave (personal) for each year of service. This entitlement accrues on a progressive basis during each year of service and many employees will have an accrual in excess of 10 days.
There is no limit on the number of days of accrued leave that can be taken as personal leave.
What do I do if an employee is required to selfisolate under Federal or State law for 14 days because they have returned from overseas or interstate?
The Australian Government has imposed a universal precautionary self-isolation requirement on all international arrivals in Australia (effective as at 11:59pm Sunday 15 March 2020).
This means that all employees – whether they be citizens, residents or visitors – will be required to selfisolate for 14 days upon arrival in Australia because of their possible or actual exposure to the COVID-19 virus.
Similarly, Queensland Western Australia, South Australia, Norther Territory and Tasmania all require new entrants to self-isolate for 14 days (with some exceptions for “essential workers” such as healthcare and defence).
Self-isolation means staying in your home, hotel room or provided accommodation and not leaving for the period of time that you are required to isolate for (currently 14 days). Only people who usually live in the household should be in the home. No visitors should be allowed. The Department of Health has issued isolation guidance which can be accessed here.
Technically an employee is not entitled to take sick/carer’s (personal) leave under the Fair Work Act unless they are absent from work due to either a personal injury or illness, a need to care for a member of their immediate family or household who is sick or
injured or due to a family emergency.
This means that an employee returning from travel who is required by government to self-isolate, but is not yet sick themselves cannot avail themselves of sick (personal) leave. This is because, to qualify for personal leave, an employee must be “not fit for work” because of an illness or injury affecting them. It is unlikely that this pre-requisite will be met by persons who are not yet diagnosed as ill but merely require isolation.
On a practical level, however, it may make sense for employers to look to utilise practical solutions during the employee’s absence due to government imposed quarantine so that employees do not suffer from a loss of pay during the isolation period where possible, such as:
- allowing the employee to work from home (where feasible), during the quarantine period;
- allowing the employee to avail themselves of other leave available to them (such as annual leave, long service leave or any other leave available under an award, enterprise agreement or contract of employment); or
- any other paid or unpaid leave by agreement between the employee and the employer (e.g. personal leave or discretionary paid leave).
Note: Employers should be aware they may attract the risk of breaching the National Employment Standards in the Fair Work Act if they allow an employee to use personal leave where the employee is not in fact ill, even where the employee agrees to this approach.
Always be sure to also check any applicable modern awards, enterprise agreements, employment contract terms and company policies - as they may contain additional rules or entitlements which may apply to your workplace and employees.
What do I do if an employee has been in contact with someone who has or may have COVID-19?
If an employee has been “in contact with” someone who has or may have COVID-19 they may also be required to self-quarantine because of their possible or actual exposure to the virus.
“In contact with” is defined as requiring:
- Greater than 15 minutes face-to-face contact in any setting with a person who has tested positive for COVID-19 in the period extending from 24 hours before onset of symptoms in the confirmed case; or
- Sharing a closed space for 2 hours or more with a person who has tested positive for COVID-19, in the period extending from 24 hours before onset.
Similar to the position in the previous section, employees in these circumstances who need to quarantine but are not yet sick themselves cannot avail themselves of sick (personal) leave. This is because, to qualify for personal leave, an employee must be “not fit for work” because of an illness or injury affecting them. It is unlikely that this pre-requisite will be met by persons who are not yet diagnosed as ill but merely require isolation.
Again however we suggest discussing the matter with your employees and trying to utilize the practical solutions set out at 2.1.2 so that employees do not suffer from a loss of pay during the isolation period where possible.
What happens if an employee’s immediate family member contracts the COVID-19 virus?
An employee may use paid personal leave to take time off to care for an immediate family member or household member who is sick or injured or to help during a family emergency.
The amount of accrued paid carer’s leave that can be taken is not capped, subject to the employee’s accrued balance of personal leave at the time.
If an employee exhausts their accrued paid personal leave they may also access up to two days’ unpaid carer’s leave (or a longer period with the agreement of their employer) in order to care for a family member with a personal illness or injury or to help
during a family emergency.
What if an employee cannot attend work because their child’s school or childcare centre has been closed due to COVID-19?
An employee may use paid personal leave to take time off to help during a family emergency. Previous case law around the meaning of a “family emergency” suggests that it is likely to include providing care to a child whose school has been forced to close with little
or no notice as a result of COVID-19. Therefore, an employee in this circumstance will likely also be able to access their paid personal leave for this purpose.
The amount of accrued paid carer’s leave that can be taken is not capped. However, the circumstance of a school closing with little or no notice is unlikely to continue to exist for longer than a few days, after which time an employee will need to move to using their annual leave entitlement (or some other form of leave available to them) in order to be paid for any absence from work to care for a child.
Note: Casual employees are entitled to 2 days of unpaid carer’s leave per occasion. Full and part time employees who have exhausted their accrued paid personal leave may access up to two days’ unpaid carer’s leave (or a longer period with the agreement of their employer) in order to provide care where their child’s school has been forced to close with little or no notice.
What if an employee may have contracted COVID19 but they still wish to attend work?
If an employee maintains that they are able to work (but are not sick and not able to work from home) then employers face a difficult scenario: the employee says they are fit to work, but the employer has concerns that the employee is not fit to work (perhaps because they may have been exposed to COVID-19 through travel or close contact with someone who has tested positive) without posing unacceptable safety risks to the workforce. Remembering that employers have a duty to provide and maintain, so far as is reasonably practicable, a working environment that is safe and without risks to the health of employees. As well as workers having a
duty to take reasonable care for their own and others’ health and safety.
The best means of resolving this impasse is to first discuss the issue with the employee and then if necessary direct the relevant employee to undergo testing if testing is available.
Employees can be directed to obtain medical clearance, which may include being tested for COVID-19, provided this is reasonable and based on factual information about health and safety risks.
Once the test is undertaken, if the employee is cleared, they are able to return to work (best practice would dictates the employer pays the employee for the relevant period). If the employee tests positive, then they can be permitted to take personal leave for the duration of their absence.
What about casual employees?
Casual employees are entitled to not attend work when they are unwell or injured. However, they are not entitled to any additional payment of sick leave for any shifts they do not work as they have already been paid an additional loading in lieu of other entitlements including sick leave. This means that a casual employee who is diagnosed with COVID-19 may be required to refrain from presenting to work without a legal entitlement to additional payments.
Furthermore, where shifts to casual employees are reduced either on account of business downturn or because the employee has been required to isolate (due to contact or recent travel), the employees will not be entitled to payment during this period.
Casual employees are entitled to 2 days unpaid carer’s leave to take time off to care for an immediate family member or household member who is sick or injured or to help during a family emergency.
Can you send an employee home if you observe COVID-19 virus symptoms?
Employers have a legal responsibility to ensure the health and safety of those in the workplace, including visitors. Where an employer holds a reasonable belief that an employee is posing a health risk - such as showing symptoms of the COVID-19 virus - it would not
be unreasonable to send the employee home on sick (personal) leave on the basis that they are unfit to work safely and without risk to the health of others in the workplace.
Employers should ask the employee to seek medical advice / testing and a clearance before returning to work. If the employee maintains they are able to work, consider whether it is practical for the employee to work from home for part or all of the period prior to obtaining the test results.
Once the test is undertaken, an employee may return to work if they are cleared. If the employee tests positive, see section 2.1.1 regarding any pay and leave obligations and entitlements that may apply.
During the COVID-19 outbreak, it may also be prudent to remind employees of their obligation to take reasonable care not to adversely affect the health and safety of other persons, and ask that they notify their employer immediately if they are suffering flu-like symptoms.
What if you wish to direct an employee to not attend work but the employee is not showing signs of COVID-19 and is not required to isolate themselves under Australian government advice (and not subject to a stand down)?
If an employer directs an employee not to attend work, despite them being fit and able to do so (and not subject to any government isolation requirements) then we suggest best practice is for that employee to continue to get paid.
In this situation, it is also important to check and consider whether you can simply issue this direction (e.g. pursuant to the employee’s contract or as a reasonable and lawful direction based on factual information about health and safety risks) - or whether you need employee agreement. Again, also check any applicable industrial instruments (such as enterprise agreements, awards), contract terms and company policies - and seek specific advice.
Work related travel
Employers should make sure that travel policies clearly address where an employee can travel to, the reasons for travel and permission required.
Employees should be informed that travel policies are constantly under review and may be subject to regular change, particularly as state border arrangements change.
Employers should also carefully check any insurance cover for work-related travel.
Can you give directions about non-work related employee travel?
Employers must be mindful not to give directions to employees that might extend to or impact the personal or private activities of the employee and which would not otherwise affect their work. Only in exceptional circumstances would it be regarded as reasonable for an employer to direct an employee how to conduct themselves outside the workplace and have the right to extend its supervision over the private lives of employees. In considering this issue, a court will look at whether there is a significant connection between the outside activity and the employee’s employment.
It is possible that the current COVID-19 circumstances may give rise to such a sufficient connection, given subsequent quarantine at federal and state government’s direction that an employee will now likely be subject to, meaning an employer may be in a position to potentially direct staff with respect to non-work related travel.
At a minimum employers should inform employees that when making travel plans (including interstate travel) they should understand the isolation requirements which they may be subject to on arrival and return.
Taking extra precautions in allowing visitors to enter the workplace is important for employers in limiting exposure to COVID-19 in the workplace.
Employers have the right to ask visitors to provide information in advance as to whether they have flu-like symptoms, have been in contact with anyone infected with COVID-19, or travelled to a high-risk area.
If a visitor answers affirmatively to any of these questions, employers should strongly consider their work health and safety obligation and should request the visitor not come to the workplace until they have been asymptomatic for 14 days or can provide a clearance letter from a physician.
Employers may also ask any visitor to provide their contact information in the event that COVID-19 develops in the workplace and the visitor may have been exposed to the COVID-19 virus.
Working from home
Reducing face-to-face contact is an excellent measure to mitigate the impact of COVID-19. Depending on your location and the spread of COVID-19, your business may need to ask employees to work from home, or your employees may ask to work from home. With this however, comes a number of practical implications to consider.
Firstly not every position and every activity can be conducted from an employee’s home, but in an increasingly service based economy / IT based jobs perhaps can more than ever before, and this will be an immediate consideration for many workplaces if the spread of COVID-19 virus worsens.
It is also important to remember that regardless of where your employees work, you are still responsible for their physical health and safety while at work, as well as their mental wellbeing.
Employers are entitled to issue reasonable and lawful directions to their employees which is likely to include a direction to work from home (in line with the Government’s request) in instances where the nature of work involved is suitable to be conducted from an
employee’s home. Employers should however also review their obligations under any applicable enterprise agreements, awards, contracts and policy (such as consultation clauses) prior to issuing such a direction.
Where employees are required to record their hours of work (for example, in relation to annualized wage arrangements under some awards), this currently needs to continue when employees are working from home.
In Australia, WHS laws still apply to businesses if workers are required to work from locations other than their usual workplace, for example from their home. Employers must still ensure, so far as is reasonably practicable, the health and safety of their workers. The worker also has a responsibility to take reasonable care for his or her own health and safety, including complying with reasonable instructions given by the employer or any policy and procedures provided.
Prior to moving staff to work-from-home, employers should have a discussion with their staff to make sure their work area at home meets WHS standards, which would involve a safety assessment of the work area prior to the employee working from home.
Some key things to consider during an assessment include the following:
• Workstation set up
• Work hours and breaks
• Physical environment (i.e. noise, heat, cold, lighting, security, electrical safety, home hygiene and home renovations, first aid etc.)
• Any manual tasks the worker has to carry out
• Psychosocial risks (i.e. isolation, reeducated support, fatigue, online harassment).
After doing such an assessment, you should come to an agreement with the employee about any controls and preventative measures that need to be put in place.
It is also important to consider whether workers have the correct equipment to work from home. It may be for instance that at present only some staff have the technological capacity to work remotely. Considering what is needed to expand this capacity will involve consideration of available technology, cyber-security, cost factors and work, health and safety implications.
Employers should make sure that employees are aware of any on-going obligations around issues and policies such as confidentiality and safe work practices whilst working at home.
It is important to remember that while employees are not working at their standard workplace, it is still an employer’s responsibility to provide a safe work environment. Therefore, if an employee sustains an injury in the course of their work while at home, it is an employer’s responsibility to ensure they are covered by workers compensation insurance. Bear in mind that psychological injury is also claimable under workers compensation.
Changing or scaling down operations
The following section addresses the worst-case scenarios and suggests some contingency strategies that business may be considering to limit the impact of COVID-19.
As a result of the spread of COVID-19 some employers may be considering varying operations, for example to reduce the risk of exposure for employees by altering start and finishing times or to address changes in demand patterns of consumers.
An employer’s ability to vary hours and/or rosters will largely depend upon the applicable industrial instrument (e.g. enterprise agreement or award) or contract that applies to their employees.
For example some employers whose workforces are covered by an award or enterprise agreement may be restricted from altering work arrangements without first consulting with employees (and potentially also union/s). Changes to an employee’s start and finish
times (for example, in order to avoid crowds during peak hours) might be possible under the span of hours provisions in an award or enterprise agreement. Some awards and enterprise agreements also allow the span of hours to be varied by agreement. Reducing a permanent employee’s ordinary hours usually requires the employee’s agreement.
We therefore strongly recommend if you are considering making certain variations to your operations that you get advice on your specific options and obligations prior to making any changes.
As a result of the potential further spread of COVID-19 some employers may be forced to consider scaling down operations. For example by:
- placing a freeze on new hires;
- reducing any supplementary labour such as contractors or labour hire workers;
- reducing employee hours; or
- providing annual or long service leave in advance or at half pay.
An employer’s ability to make such changes will largely depend upon the applicable industrial instrument (e.g. enterprise agreement or award) or contract that applies to their employees.
We therefore strongly recommend if you are considering scaling down your operations that you seek advice on your specific options and obligations prior to making any changes.
Some employers may eventually decide that things have gotten so financially stringent that they are compelled to reduce the size of their workforce and as a result need to make some staff redundant.
Before making any employees redundant it is important to first consider:
- whether there are any options for redeployment within the business or associated entities; and
- your consultation obligations under any enterprise agreements or modern awards.
Most employees (who have at least one year of service with the employer) will be entitled to receive a minimum redundancy payment in accordance with the Fair Work Act (a general exception applies to employers with fewer than 15 employees in most (but not all) industries).
The amount of redundancy pay employees are entitled to will be based upon their continuous service, as well as any terms in any applicable enterprise agreement or award.
It is possible for employers to ask the Fair Work Commission to reduce an amount that would otherwise be payable on redundancy if:
- the employer finds other acceptable employment for the employee; or
- the employer cannot afford the full redundancy amount.
If as an employer you are considering redundancy of 15 or more staff, you must also give written notice to the Department of Human Services of the proposed dismissals.
Before taking steps to make an employee redundant we strongly suggest getting advice on your specific circumstances as any redundancies are likely to be highly scrutinised, can be disputed and should be considered as a last resort.
Business shut down
From 22 March 2020, the Federal Government and state and territories agreed to dramatically ramp up restrictions to control the spread of COVID-19. This ramp up has included closing business where large amounts of people tend to congregate, raising the risk of COVID-19 transmission. As a result, many businesses across the country have already been forced to close due to these enforceable government directives.
As the COVID-19 pandemic continues to take a worsening course many businesses still operating may be also be in a situation where they are forced to close due to a lack of stock or customers. This may include situations in which businesses are unable to trade due to a lack of vital supplies or stock becoming unavailable (for example medical and allied businesses that may require masks to safely work).
The following section addresses both of these scenarios with respect to an employer’s ability to stand down their employees without pay.
Under the Fair Work Act employers have the right to temporarily stand down employees without pay during a period in which the employees cannot be “usefully employed” because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible. (The other circumstances are industrial action and breakdown of machinery or equipment).
“Usefully employed” means that the employment will result in a net benefit to the employer’s business by reason of the performance of the particular work done by the employee.
On 22 March the Prime Minister announced that the Federal government in conjunction with the states and territories would direct pubs, licensed and registered clubs, cinemas, casinos, nightclubs, places of worship, gyms and indoors sporting venues to close. Restaurants and cafes had their trade restricted to takeaway and home delivery.
On 24 March, the Prime Minister announced this list would be extended to include auction houses, food courts in shopping centres, some markets, beauty services, tanning services, tattoo parlours, waxing salons, nail salons, libraries, museums, galleries, amusement parks, swimming pools, indoor exercise activities, wellness centres and play centres.
As a result of these enforceable government directions where a business has been directed by the government to close, under the Fair Work Act, employees can be stood down because of a stoppage of work for which the employer cannot reasonably be held responsible and for which employees cannot be usefully employed.
Employers are not required to pay employees during the period of a stand down. Employees do however accrue leave as normal during a stand down.
Note: Enterprise agreements and employment contracts can sometime have different or extra rules about when an employer can stand down an employee without pay, for example, a requirement to notify or consult. Employers should consider whether their obligations are impacted by any applicable enterprise agreement, award, employees’ employment contracts or workplace policies prior to issuing a stand down even where it is as a result of an enforceable government direction to close.
While the regulator, the Fair Work Ombudsman, states on its website that employers cannot stand down an employee “just because the business is quiet or there isn’t enough work”, (in our view) the COVID-19 outbreak could and is resulting in situations that meet the requirements for stand down under the Act, for example where a business imports and sells overseas goods which they are unable to currently receive or where a large proportion of the workforce has been forced to self quarantine with the result that the remaining
employees/workforce cannot be usefully employed.
There will however be no right to stand down if there is useful work available for the employee to do which is within the terms of the employee’s contract of employment. It need not be work the employee normally carries out.
It is an essential part of stand down that the decision is a unilateral one of an employer to withhold work and payment even when employees are prepared to perform all duties.
Employees can be stood down for the period of time while the business is dealing with the issue AND employees cannot be usefully employed.
Situations where stand down does NOT apply:
- Where an employer refuses to pay an employee in response to the employee’s refusal to work (e.g. for safety reasons) in accordance with the contract of employment.
- If an enterprise agreement or contract of employment (rare) makes provision for stand down. In these circumstances the provisions
in the agreement or contract will apply as opposed to the Fair Work Act. They may have different or extra rules about when an employer can stand down an employee without pay.
- An employee is taking authorised leave (paid or unpaid) or is otherwise authorised to be absent from their employment.
- If there is work available for some employees you cannot stand down all employees. Only those employees who cannot be usefully employed may be stood down.
In the event of a valid stand down under the Fair Work Act, an employer does not need to pay wages to stood down employees, but an employee accrues leave in the usual way (as though they have worked). Continuity is also not broken.
The Federal Governments new Jobseeker payment is also available to “permanent employees who are stood down”.
Even though stand down periods are unpaid, an employer may wish to consider some of the following options prior to ceasing employee pay outright:
- Options for redeployment to other parts of the business where available.
- Allowing employees to take paid leave (such as annual leave or long service leave) if requested.
- Allowing employees alternative leave arrangements such as extended annual leave at half pay or early long service leave (if permitted under any applicable award, enterprise agreement or contract).
- Special provisions for employees with insufficient accrued leave to cover the period of shut down (for example, allowing staff to purchase leave which is then dedicated on a pro rata basis from their annual wage).
Stand downs are likely to be closely scrutinised and can be challenged by an employee or union in the Fair Work Commission if not implemented strictly in accordance with legal obligations, so we strongly recommend seeking advice prior to implementing a stand down.
Discrimination and privacy
Employers should be careful to balance their health and safety obligations to ensure the health and safety of all employees against a risk of practices which unlawfully discriminate against employees or harass them (for example on the grounds of race or disability).
It is likely in our view that contracting COVID-19 would be characterized as a ‘disability’ for the purposes of antidiscrimination laws.
Whilst arrangements based on risk assessments which are critical to discharging an employer’s work health and safety obligation to ensure a safe workplace are likely to be defensible, employers should be alert and aware that conduct may be unlawful even if it arises from a genuinely held concern about COVID-19 (e.g. changes to the provision of services for certain types of customers).
Employers will be vicariously liable for the conduct of their employees who discriminate against or harass other employees, unless the employer can show it has taken reasonable steps to avoid the conduct.
Reasonable steps include:
- having a policy which deals with discrimination and unlawful harassment;
- having a procedure to handle complaints of unlawful discrimination and harassment;
- conducting training on those policies and procedures;
- directing employees not to engage in any kind of discrimination or harassment; and
- acting promptly in relation to any complaints of unlawful discrimination in accordance with the appropriate policies and procedures and then taking actions to avoid such conduct occurring again.
Employers can minimise the risk of unlawful discrimination claims by ensuring that any decisions made as to a workers’ attendance or requesting medical clearance are consistent with publications of the Department of Health and communicating this with employees.
Most employers will need to collect personal information from staff members and workplace visitors to control the risks posed by the COVID-19 pandemic, but they must still comply with privacy laws and the Australian Privacy Principles (APPs) in Schedule 1 of the Commonwealth Privacy Act 1988.
In relation to the coronavirus, employers can collect, use and disclose personal information for the purpose of ensuring all necessary precautionary steps are taken for the individual the information is taken from or any other individuals who might be at risk. However, you must collect “as little information as is reasonably necessary”, in line with Department of Health advice on identifying COVID-19 risk factors and controlling the spread of the communicable disease.
You may inform staff that a colleague or visitor has or may have contracted COVID-19 but you should only use or disclose personal information that is reasonably necessary in order to prevent or manage COVID-19 in the workplace.
Depending on the circumstances, it may not be necessary to reveal the name of an individual in order to prevent or manage COVID-19, or the disclosure of the name of the individual may be restricted to a limited number of people on a ‘need-to-know basis’.
An employer doesn’t need to obtain an individual’s express or implied consent to collect personal health information where, for example, the collection relates to preventing serious health and safety threats.
An employee’s sick leave records aren’t protected by the Privacy Act where those records are used or disclosed for a purpose directly related to the relevant employment relationship.
Where employees are working remotely or from home we strongly recommend employers implement stringent security measures to protect personal information during remote work. This include ensuring all laptops and other devices have updated operating
systems and anti-virus software, and strong passwords; workers use work email accounts instead of personal ones; and multi-factor authentication for remote access systems and resources are in place.