The COVID-19 outbreak continues to deepen resulting in the Australian Government announcing on 22 March 2020 a range of additional restrictions on business and social gatherings designed to slow the spread of COVID-19. A full copy of the media release issued by the Prime Minister can be accessed here.
This alert is intended to answer some of the common HR and employment relations questions arising from the COVID-19 outbreak and the recent announcement of the Prime Minister.
The information provided in this FAQ is current as at the date of publication. However, given the fast pace at which the situation is evolving, members are strongly encouraged to monitor the Federal Government’s Department of Health’s COVID-19 Health Alert and HR Assured associated resource.
What are the latest restrictions?
On 22 March 2020, the Prime Minister announced new restrictions that were supported by all State Premiers and Chief Ministers.
The new restrictions are represented as “Stage 1 restrictions” which will be reviewed monthly, although the Prime Minister indicated that Australians should expect these measures to be in place for at least 6 months.
From midday (local time) on 23 March 2020 the following businesses/facilities will be restricted from opening:
- Pubs, registered and licenced clubs (excluding bottle shops attached to these venues);
- hotels (excluding accommodation);
- Gyms and indoor sporting venues;
- Cinemas, entertainment venues, casinos, and night clubs;
- Restaurants and cafes will be restricted to takeaway and/or home delivery; and
- Religious gatherings, places of worship or funerals (in enclosed spaces and other than very small groups and where the 1 person per 4 square metre rule applies).
These measures also apply to outdoor spaces associated with the above venues, for example, a café with outdoor seating will still be restricted from trading.
Businesses and facilities other than those listed above are not covered from the recently announced restrictions and can continue to trade as per normal at this point in time, however, wider stage 2 restrictions may be announced in due course if necessary.
Circumstances allowing stand down
An employer can stand down an employee without pay where an employee cannot usefully be employed due to, but not limited to, a stoppage of work for any cause which the employer cannot reasonably be held responsible.
In our view, the businesses/facilities noted in the Stage 1 restrictions above would be able to stand down employees without pay.
Where a business is wholly or predominately dependent upon a business/facility noted in the Stage 1 restrictions above, it is likely that they would also be able to stand down employees without pay, however, advice should be sought in all such circumstances before acting. For example, a security company that only provides services to casinos may also be able to stand down employees.
Generally speaking, a business would not be able to enact a stand down where it is not noted in the Stage 1 restrictions above, even if they are experiencing a significant downturn in trade due to decreased consumer demand. Employers should, however, seek specific advice on their particular circumstances.
How do you enact a stand down?
In all circumstances, employers are encouraged to proactively engage and consult with employees concerning the nature and effect of the stand down, together with any steps and measures which could be agreed to mitigate the impact of the stand down upon employees.
While there is no obligation to do so, employers may, as an example, agree that employees can utilise their accumulated annual leave and long service leave, if any.
If a stand down is to be implemented employers should:
- seek specific advice in all circumstances to ensure that the risks with such an approach are understood;
- engage with impacted employees as soon as possible and provide employees with a reasonable opportunity to present ideas or proposals which may avoid the stand down;
- confirm the stand down in a meeting which is later confirmed in writing;
- maintain consistent contact with employees during the stand down period and provide updates and information which will assist with their ongoing understanding of the matter; and
- the continuation, or cancelation, of a stand down should be confirmed in writing.
Does the stand down result in the termination of employment?
No. During a period of stand down the employment relationship continues albeit there is no obligation upon an employee to work and there is no obligation on the part of the employer to pay an employee. Other than this all other employment obligations and conditions, including confidentiality, continue.
However, the period of time that an employee is stood down does not interrupt service, and will count as service for the purpose of accruing entitlements such as notice, annual leave and redundancy pay.
What if an employee is on annual leave?
An employee is not taken to be stood down during any period of paid or unpaid leave which has been authorised by the employer and commenced.
In this respect, if an employee is on authorised annual leave at the time of enacting the stand down, the stand down will not come into effect until after the period of paid annual leave ceases.
A person is also not be taken to be stood down during any public holiday which falls during the stand down period.
In this respect, any public holiday should be paid as per normal. This is particularly relevant as we come into the Easter period.
If an employer would prefer to cancel a period of paid annual leave that has previously been approved, but which will now occur during a stand down period, we recommend you seek advice.
What if an employee is on personal/carer’s leave?
As outlined above, an employee is not taken to be stood down during any period of paid or unpaid leave which is authorised by the employer.
Personal/carer’s leave is not authorised by the employer but rather a right of an employee so long as the employee complies with the notice and evidence requirements.
If an employee has booked a future period of paid personal / carer’s leave – for example for a scheduled medical appointment, and a stand down commences then in our view the stand down will take precedence and the paid personal leave will not occur.
If an employee is taking a period of paid personal/carer’s leave at a time when a stand down is enacted, we recommend you seek advice on the specific circumstances of that employee.
If an employee provides a medical certificate, becomes unfit for work during the stand down period, or applies for paid personal/carer’s leave during a stand down will not have a practical impact, the stand down period will continue.
What if an employee resigns during a stand down?
It should be contemplated that employees may resign during a stand down, either to take up alternative employment or access social security benefits.
In these circumstances an employee is required to provide a notice of resignation in the normal circumstances, and the business would be required to pay out any accumulated yet untaken annual leave and long service leave.
What is the difference between a stand down and redundancy?
Where a stand down relates to an employee being stood down without pay due to circumstances beyond the employer’s control, redundancy is where a role is genuinely no longer required to be performed by anyone and this leads to a termination of the employment for reason of redundancy.
As an example, where a business decides to reduce headcount due to a reduction in consumer demand this would amount to a redundancy and not a stand down.
Despite the current economic circumstances, businesses are still required to consult with employees concerning a possible redundancy, examine redeployment options before making any decision to terminate employment before giving provide notice and redundancy pay in the normal circumstances.
Are there any new restrictions on social distancing?
Other than those matters noted above, the recent announcement of the Prime Minister did not alter the social distancing recommendations which continue to be:
- no non-essential gatherings of more than 500 people outside or more than 100 people inside;
- all non-essential indoor gatherings of less than 100 people must have no more than one person per 4sqm;
- where possible, keep 1.5 metres between yourself and others;
- avoid non-essential travel; and
- restrictions on entering aged care homes apply.
Are there any new restrictions self-isolation?
The recent announcement of the Prime Minister did not alter the requirements and recommendations upon self-isolation and members are referred to previous alerts and fact sheets for full information in this regard.
The Fitness Australia Telephone Advisory Service is also available to answer any HR and employment relations questions arising in relation to the coronavirus.
For further information, please don’t hesitate to contact the team on 1300 211 311.