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 should self-quarantine be required.
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 FAQs below provide answers to common questions or you can read more about workplace risk management from WHSQ or the coronavirus 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 Coronavirus.
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 wants to stay home as a precaution?
Employees will need to make a request to work from home (if possible) or 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.
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. This also applies to overseas quarantine.
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 (JobKeeper eligible employers may receive assistance with wages).
What if an employer wants their staff to work from home?
Normal wages are paid. JobKeeper eligible employers may claim JobKeeper for the period.
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. JobKeeper eligible employers may access JobKeeper.
Can an employee be ‘stood down without pay?
Note: this is different than a Jobkeeper stand down. See Jobkeeper working arrangements for more information on Jobkeeper stand downs.
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. The most common scenario of a stoppage usually involves a natural disaster or power outages. Employees may be required to undertake alternative duties to avoid stand down, provided that in all circumstances it does not change the ordinary wages.
The right to stand down does not require the employer to prove that no employees can perform useful work. It may be limited to a part of the enterprise. Note that this limited stand down may pose workplace relations concerns across the workforce.
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.
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
Clerical Award - new flexibilities
The Fair Work Commission has varied the Clerks Award to include a new 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 email@example.com.
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.
JobKeeper working arrangements
What employment flexibilities are provided under the JobKeeper changes?
The changes made to the FW Act give employers temporary powers to implement flexibility measures in order to save jobs.
These powers allow employers receiving JobKeeper to:
- Make JobKeeper requests that:
- employees work on different days or alternate hours of work
- employees take accrued annual leave, and
- make agreements with employees for annual leave to be taken at half pay.
- Issue JobKeeper directions requiring to employees to:
- work reduced hours or days (a JobKeeper enabling stand down direction
- undertake alternate duties, or
- work at an alternate location.
What is a JobKeeper enabling request?
Employers can request employees to work reduced days or alternate hours of work, and request that employees take accrued annual leave (provided that their leave balance does not reduce to below 2 weeks).
If an employer makes such a request of an employee, the employee must not unreasonably refuse the request.
What is a JobKeeper enabling stand down direction?
A JobKeeper enabling stand down direction allows an employer to direct an employee to:
- Not work on a day or days on which the employee would usually work, or
- Work for a lesser period than the period which the employee would ordinarily work on a particular day, or
- Work a reduced number of hours (compared with the employee’s ordinary hours of work), including reducing hours to nil.
During a JobKeeper enabling stand down, the employer must:
- Pay the employee each fortnight at least the greater of:
- The $1500 JobKeeper payment, or
- The amounts payable to the employee in relation to the performance of work during the fortnight (including all wages, allowances, loadings, penalties, etc), and
- Not reduce the employee’s ordinary hourly rate of pay for each hour of work performed.
When a JobKeeper enabling stand down direction is given to an employee, the employer must not unreasonably refuse a request by that employee:
- To engage in reasonable secondary employment, or
- For additional training or professional development.
How does an employer know if an employee cannot be “usefully employed”?
Useful work does not have to be the work that the employee ordinarily performs but needs to be genuine productive work that provides a “net benefit” to the employer. Employers should be able to demonstrate that the impacts of the virus or the Government’s measures to deal with it have caused the fact that there is no useful work available for the period the employee is stood down.
What are the other types of JobKeeper enabling directions?
An employer can direct an employee who qualifies for JobKeeper and is entitled to payments to perform their duties at a place different to their normal workplace including the employee’s home provided that:
- The place is suitable for the employee’s duties
- The performance of the duties at that place is generally safe and specifically safe having regard to the nature and spread of COVID-19
- The performance of the duties at that place is reasonably within the scope of the employer’s business operations.
AND the employer has information before them that leads them to reasonably believe that this JobKeeper direction with respect to location of work is necessary to maintain the employment of the employee.
Note: “Necessary” is should not be considered as merely desirable or preferred, but actually “necessary” or “but for” directing the employee to a different work location, the employee would be made redundant.
What are the rules employers must follow when issuing JobKeeper enabling directions to employees?
A JobKeeper enabling direction given to an employee to stand down, undertake alternate duties or work at an alternate location, will be of no effect if either:
- If the direction is unreasonable in all of the circumstances, or
- The consultation obligation has not been complied with.
The consultation obligation for JobKeeper enabling directions requires an employer:
- To give an employee at least 3 days’ written notice of its intention to issue the direction, and
- To consult with the employee (or their representative) prior to giving the direction.
A JobKeeper enabling direction given to an employee to undertake alternate duties or work at an alternate location, will also be of no effect unless the employer has information before them that leads them to reasonably believe that the direction is necessary to continue the employment of one or more employees of the employer.
All JobKeeper enabling directions will cease to have effect at 12.00 am on 28 September 2020, unless removed prior to that time.
Do JobKeeper directions need to be in writing?
A JobKeeper direction must be given to an employee in writing (this could include by electronic means) and in a form set out in the regulations (note this is not yet published).
Does an employee have to follow a JobKeeper direction given by an employer?
Yes, employees must comply with a JobKeeper employer direction unless the direction is unreasonable in all the circumstances (this could for example, depend on its impact on an employee’s caring responsibilities). Where a direction is unreasonable it does not apply to an employee.
Can an employer give a JobKeeper direction which has the effect of making an employee redundant?
No, a JobKeeper direction cannot amount to redundancy.
What happens if there is a dispute or disagreement?
Employers, employees and their representatives may raise disputes with the Fair Work Commission (FWC) about JobKeeper requests and directions. The FWC may deal with disputes in whatever way it sees fit, including by arbitration (meaning that it can make decisions that are binding on the parties). In dealing with a dispute, the FWC must take into account fairness between the parties concerned.
What protections exist to stop workplaces exploiting or abusing JobKeeper enabling directions?
An employer will be subject to stiff fines (up to $63,000 per contravention for companies and up to $12,600 per contravention for an individual) if it tries to give a JobKeeper enabling direction that the legislation does not allow and the employer knew that this was the case.
JobKeeper and payments to employees
What conditions must be satisfied regarding JobKeeper payments to employees?
There are three things to satisfy
- The “wage condition” guarantee: which requires all employees to be paid at a minimum $1,500 per fortnight before tax. In other words, a JobKeeper employer must nominate and pay all eligible employees $1500 per fortnight (one in, all in). If the employer fails to do so, the JobKeeper support will cease for all employees. However, an employee may elect to not nominate for the JobKeeper payment.
- The minimum payment guarantee: An employer must ensure that the amount payable to a particular employee each fortnight is the greater of:
- The $1,500 JobKeeper amount, or
- The total amount owed to the employee for the performance of work during the fortnight (in full).
- Note: The “total amount” includes any of the following that may have become payable during the fortnight:
- Incentive-based payments and bonuses
- Monetary allowances
- Overtime or penalty rates
- Leave payments.
- The hourly rate of pay guarantee: this requires that any reduction to the hours/days of an employee cannot reduce an employee’s “hourly base rate of pay” (the hourly rate the employee earned before the reduction in hours/days). An employee must still be paid their “hourly base rate” for any work they perform during the fortnight. An employee’s “hourly base rate” does not include any additional allowances, loadings or penalties added.
What rate do I pay if an employee is working different duties?
For an employee performing new duties their hourly base rate is either:
- The employee’s new hourly rate for the new duties being performed if they attract a higher rate of pay, or
- The employee’s old hourly rate if the new hourly rate for the new duties is lower than the old rate (prior to the direction to change duties).
What happens to employee entitlements and accruals during JobKeeper?
Employees subject to a JobKeeper enabling direction will continue to accrue and take service-related entitlements as if the direction had not been issued.
This means that employees will continue to accrue annual and personal leave at their usual rate and will be entitled to service related entitlements such as redundancy pay and payments in lieu of notice as if they were working their usual hours of work.
Can a stand down direction issued by an employer apply when an employee is on leave (annual, personal etc.)?
No, a stand down direction does not apply to an employee during a period when the employee is taking paid leave.
This means that when an employee is stood down (partial or full) and they subsequently go on leave, their rate of pay will return to what it was prior to the direction to stand down.
Employees do not take ‘unpaid leave’ while on Jobkeeper. The employer must pay at last $1500 Jobkeeper per fortnight. If the employee is not paid, the employer is at risk of losing the right to Jobkeeper for all eligible employees.
If an employee is stood down as a result of JobKeeper direction from an employer what happens to the accrual of their leave entitlements?
The employee accrues leave entitlements as if the direction to stand down had not been given.
Does the period when an employee is stood down count towards continuity of service?
Yes, it counts for the purpose of continuity of service.
Will tax and superannuation apply to JobKeeper payments?
JobKeeper payments to employees are taxable like other payments to employees, and PAYG withholding obligations will apply. The $1500 payment is before tax. If an employee is paid more than Jobkeeper through a combination of work and/or paid leave, the income is taxed at the relevant marginal tax rate.
For payments made to cover an employee’s usual wages, superannuation is payable according to the ordinary rules for payments to employees for ordinary time earnings.
For payments (or parts of payments) to employees in excess of an employee’s usual wages, superannuation is not required to be paid. This situation may arise where:
- An employees’ usual wages are less than $1500 per fortnight (i.e. superannuation would be payable on the part of the $1500 payment necessary to cover the employee’s wages, but not on any windfall balance), or
- Employees have been stood down without pay (ie superannuation will not be payable on the $1500 JobKeeper payment paid to employees as it is not paid as ordinary time earnings for work that has been undertaken).