If you’re an employer within the industry, you need to be across the questions you may be asked regarding coming to work and workplace risk management, according to Australian workplace laws.
Workers and their employers must follow the government guidelines regarding self-quarantine periods, with workers required to notify their employer if they need to self-quarantine.
Employers are also responsible for identifying and managing work health and safety risks, which includes exposure to the virus. Businesses and their workers should be familiar with how to prevent the spread of infection.
Our common workplace relations COVID-19 FAQs below provide answers to common questions. Or, read more about workplace risk management from WHSQ or COVID-19 and workplace laws from the FairWork Ombudsman.
Common employment FAQs
The following is a summary of common workplace relations questions employers are facing as a result of the response to COVID-19.
Questions concerning medical and testing issues must be raised with the appropriate authorities and medical experts*.
*When calling the medical hotlines please be prepared for a possible lengthy time on-hold to speak to one of the hotline staff.
What if an employee is not sick but is in a period of self-isolation / quarantine arising from government directions?
If, (due to recent travel or contact) an employee is subject to the government direction to self-isolate /quarantine, they MUST stay at home for the duration. Employees are not entitled to payment of wages, but the employer may agree to some form of paid leave such as annual leave or long service leave.
My employee has some COVID symptoms and is having a test, what do I pay them?
Because your employee has an illness that is causing the symptoms and they are unable to attend work because of these symptoms they will be entitled to access personal leave until their test result comes back negative or they feel better – whichever is the later event.
What if an employer has work but wants their staff to stay home (not working)?
Where an employer directs a full-time or part-time employee not to work, despite there being available 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.
What if I can’t provide work to my employees because of government health directives?
Under section 524 of the Fair Work Act an employee can only be stood down from work without pay if they can’t do useful work because of equipment break down, industrial action or a stoppage of work for which the employer can’t be held responsible. Health directives that close some or all sections of an industry are great examples of this. Where possible the employer should try to assign the employee to work elsewhere. If, due to a stoppage of work, other work is unavailable, stand down may be available.
Employees are not paid ordinary wages during stand down but do continue to accrue leave entitlements.
What if a customer closes a site or prohibits my employee from attending because of the customers concerns?
Where possible the employer should try to assign the employee to work elsewhere. If, due to a stoppage of work, other work is unavailable, stand down may be available.
What if my employee refuses to wear a mask at work?
Employees are required to comply with necessary workplace health and safety measures and so wearing a mask will be enforceable in the workplace where your health and safety system identifies this as a necessary control.
Some employees may be exempt from masks orders that are imposed by government health orders. While the state government has stated that they do not require individuals to provide evidence of an exemption, there is no reason why a mask requirement in a workplace should be treated any differently from wearing any other form of PPE.
In the view of Master Builders it is lawful and reasonable to require an employee to provide evidence that they are unable to comply with any workplace safety requirement, including mask wearing.
Where a person is unable to wear a mask, the business must consider any increased risk arising from the inability to comply and what controls are available to address this.
Can I insist that my employees get vaccinated?
There is no one right answer to this right now as the law is still very immature in this space. The government has limited mandating immunisations to those working in aged and healthcare where the consequences of infection are high. It can depend on what type of work you are doing, who you are doing work for, the risks associated with that work and potential exposure.
We can say that a close example has been a requirement to mandate the flu vaccine in some industries. Where we have seen this supported is in industries where either the risk of transmission is high, because of known hygiene challenges or inability to socially distance, or where the consequences of infection are high. We could expect a similar approach will be taken with the COVID vaccine.
A safe and effective COVID-19 vaccination is one control measure, among a number of control measures, that you can use to prevent the spread of COVID. So, you can encourage your workers to get vaccinated, if they can. But you must continue to implement all reasonably practicable control measures in your workplace, such as such as physical distancing, good hygiene and increased cleaning and maintenance. Your workers should not come to work if they are unwell – even if they are vaccinated. There is no evidence to date to suggest that the risk in construction cannot be adequately managed using these controls and so, at this time, there will likely be few examples when a compulsory vaccine will be appropriate in construction.
Is a stand down the same as a termination of employment?
A stand down is not a termination of employment.
An employee’s service prior to the date of stand down is preserved and the employee will continue to accrue relevant leave entitlements during the period of the stand down.
However, the employee or the employer may terminate the contract during a period of stand down.
Do stood down employees get paid public holidays?
Yes. During a period of stand down an employee will still receive payment for the ordinary hours they would have usually worked on the day on which the public holiday falls
Other common issues
Business disrupted due to lack of supply
If a shortage of work is due to a sudden failure of supply of components which are essential to the business operations, this may be grounds for an employer to stand down employees without pay.
Before the decision is made to stand down, the employer must take all reasonable steps to source alternative suppliers.
Business disrupted due to absent employee
There may be very limited circumstances where the employer cannot provide useful work to its workforce because of the sheer number of employees on quarantine or on sick leave.
Before the decision is made to stand down, the employer must take all reasonable steps to source alternative labour.
Business disrupted due to government COVID-19 measures*
There may be circumstances where the employer cannot provide useful work for an employee because a customer is closed by law – such as non-essential services - or is in a period of quarantine/self-isolation.
Before the decision is made to stand down, the employer must take all reasonable steps to source alternative work for the employee.
*Stand down is not available if the loss of work is due to a general downturn in activity in the industry or economy. The loss of current and future orders is not, in itself, grounds for stand down. The loss must be manifestly the result of government COVID-19 controls.
If stand down is not justified, the alternative is taking paid or unpaid leave, or redundancy.
Clerical Award - new flexibilities
The Fair Work Commission has varied the Clerks Award to include a schedule called Schedule I - Award flexibility during the COVID-19 Pandemic. This includes:
- Reduced hours: An employer and the full-time and part-time employees in a workplace or section of a workplace may agree to temporarily reduce ordinary hours of work while Schedule I is in operation. (This is not a stand down). At least 75% of the full-time and part-time employees in the relevant workplace or section must approve any agreement.
- Working from home. Subject to approval by the employer, an employee working from home may work their ordinary hours anytime between 6.00am and 11.00pm, Monday to Friday, and between 7.00am and 12.30pm on Saturday. No shift penalties apply.
If an employer proposes to conduct a vote for reduced hours, they are required to notify the Fair Work Commission by emailing firstname.lastname@example.org.
The employer is also required to provide to the Commission the work email addresses of the employees who will be participating in the vote. The Commission will then distribute an information sheet to the employees prior to the vote.