Due to the rapidly evolving situation involving the novel Covid-19 disease (Coronavirus) many workplaces and individuals are implementing and taking precautions to minimise the risk of infection. One such precaution is a period of self-isolation when an individual has come into contact with an infected person. Isolation may also be necessary when a partner or family member has been exposed.
It is important to understand the implications this may have for an individual in terms of employment, particularly employee entitlements, employer obligations and protections for both parties. This is important as the Fair Work Commission and Courts are still operating meaning an application can be bought against an employer at this time.
This article will answer some common questions that may be causing uncertainty during this time.
The primary source for all specific rights and obligations in an employment relationship is the employment agreement. This may take the form of an individual agreement, enterprise agreement or award. Prior to taking any action you should check your relevant award and agreement.
There are several kinds of leave available to employees but this article will only focus on sick leave and annual leave.
In terms of sick leave, which is also known as carers leave, there is a statutory entitlement for full-time workers under both the FWA and IRA for 10 days sick leave per year, accrued progressively throughout the year. Part-time workers are entitled to a pro-rata of 10 days in accordance with their hours of work.
Similarly, there is a statutory entitlement under both Acts for four weeks of annual leave for full-time and part-time workers. An additional week of leave may be available if you fulfil the criteria to be considered a shift worker.
When is leave taken?
Sick leave can be taken because the employee is not fit for work because of personal illness or injury; or to provide care or support to a member of the employee’s immediate family or household who requires it because of personal illness or injury or unexpected emergency. Leave may bet taken for a whole or part of a day.
The procedure for taking sick leave will be dependant upon the terms of your relevant employment instrument, however section 41 of the FWA requires at least that the employee promptly notifies the employer of the illness and period of time they are away as well as giving evidence of the illness.
Similarly, the procedure to take annual leave will be governed by the relevant employment instrument. Pursuant to section 88 of the FWA, paid annual leave may be taken for a period agreed between an employee and his or her employer.
Accordingly taking any form of leave must follow the procedures established in either an employment instrument or in accordance with the relevant Acts.
Will isolation count against leave?
This will depend on what arrangement is made between yourself and your employer. While an employer may direct you to see a doctor or stay home you cannot be forced to use any accrued leave. However, if you do not elect to take a form of paid leave, your employer has no legal obligation to pay your wages. You must therefore carefully consider your personal circumstances before electing to take unpaid leave.
If possible, look to make alternative arrangements with your employer such as working remotely or a compromise in terms of the amount and type of leave taken. You may have a formal right under your employment agreement to request a flexible or alternative working arrangement. In addition, full or part-time employees with 12 months of continuous service may also have a right to request a flexible or alternative working arrangement under the FWA.
Requests for flexible work arrangements must be seriously considered by the employer and can only be refused on reasonable business grounds. Workplace regulators have encouraged employees and employers to work together to find solutions to meet the needs of workplaces and staff.
Can I be directed to take leave?
Employers cannot direct employees to take sick leave. An employer may direct an employee to leave the work place or attend a doctor if they suspect they are suffering from an illness.
In regard to annual leave, under the FWA an employer can direct an employee to take annual leave, but only when the request is reasonable. In assessing whether a direction is reasonable, the following factors are relevant:
- The needs of the employee and the business;
- Any arrangements in place;
- Custom and practice of the business;
- Timing of the direction or requirement to take leave; and
- The length of the period of notice to take leave given.
Directions to take leave during shut down periods have been held to be reasonable. On this basis it appears that a direction issued at this time may be reasonable.
Can an employee be dismissed while on leave?
An employee may be dismissed while on leave provided that the reasons for termination are not based on or related to the employee taking leave.
In regard to personal/carers leave, section 352 of the FWA provides the protection for employees temporarily absent because of illness or injury. There are however two exceptions: where the employee’s absence extends beyond three (3) months; or where the total absences over a 12-month period equate to more than three (3) months and the employee is not on paid person/carer’s leave.
There is not a similar protection for those on annual leave. However, a dismissal effected while an employee is on annual leave may give rise to certain general protections such as the protection against unfair dismissal. Employers should be careful in complying with their termination obligations in this regard.
Can an employer make directions to an employee?
Yes, an employer is entitled to make a number of directions in regard to an employee’s work provided the direction is reasonable and do not place an employee at imminent risk.
Directions that can be made include:
- A direction to work from home;
- A direction to continue working;
- A direction to leave the workplace and attend a medical facility;
- A direction to take annual leave;
- A direction to cease work.
Typically, when a direction is made, the employer will bear a continuing obligation to pay wages and entitlements. In circumstances where business is stopped, this may not be financially viable. Employers should accordingly consider their circumstances.
Can employees refuse to attend work?
This is a complicated question and there is no simple yes or no answer.
Whether refusing to attend the workplace is a legitimate exercise of a workplace right or undertaking of industrial action is highly dependent on all the circumstances surrounding the refusal. There is no clear answer that will apply to all types of employees. Best practice in this situation is for the employee to communicate their concerns with their employer and attempt to make alternate arrangements such as working from home.
Can workers be stood down without pay?
Usually when an employee is stood down, they are still considered ‘employed’ and accordingly are paid salary and receive entitlements, however in certain circumstances, a worker can be stood down without pay.
If an employment agreement does not include stand down provisions, the circumstances in which a stand down is permitted are outlined in section 524 of the FWA. This section provides that an employee may be stood down during a period where they cannot usefully be employed during one of three situations. Most relevant to the current situation is “a stoppage of work for any cause for which the employer cannot reasonably be held responsible.”
Whether a particular employee can be usefully employed is a question of fact to be determined having regard to the circumstances that face the employer. Previously the provision has been held to apply to incidents such as inclement weather which may indicate that a pandemic would be viewed as a stoppage of work that cannot be reasonably deemed as employer caused.
Alternatively, under section 525, an employee and employer may agree for the employee to take leave (paid or unpaid) instead of being stood down during this period.
Aside from the stand down powers of employers, the State and Federal Governments also have the power to make an enforceable government order, determination or direction to prevent an employee from attending a workplace. When such an order is made, an employer is not required to pay the employee. This has occurred in Queensland following the ordered shutdown/limitation of many ‘non-essential’ businesses such as restaurants, gyms and pubs.
Can an employer change an employee’s roster or hours of work?
Yes, a variation in hours or roster may occur. Employers must consult with the employee and their relevant employment agreement before making a variation. This includes a consideration of the employee’s views on the change and cannot be affected unilaterally.
The parties may also choose to enter into an ‘individual flexibility agreement’ (IFA) which allows the variation of employment agreement terms relating to hours or rosters. An IFA does have some formalities that must be satisfied before the agreement becomes effective.
Alternatively, employees may wish to agree to a variation in the span of their hours which may assist them avoiding peak times. Again, this will require a consultation of the employee and their existing employment agreement.
An unfortunate side effect of the situation is a down turn in business and by extension a loss of jobs. While employers are able to terminate employers, they must follow proper protocols and comply with their obligations under the relevant employment agreements and the FWA.
Employees must be paid their accrued entitlements. A party may lawfully terminate the employment in one of two ways: through giving notice in accordance with the terms of the employment agreement, or in response to conduct in breach of the employment agreement.
Section 117 FWA provides that an employer must not terminate the employment of an employee without first giving the employee a minimum period of notice in writing. The minimum period starts at one week and may be up to five weeks depending upon the employee’s length of service and age. The statutory minimum can be satisfied by payment in lieu of giving notice.
Redundancy is slightly different to a standard termination. Redundancy occurs when an employer no longer requires the job to be done by the employee or anyone else. If an employee is made redundant, the employer must pay redundancy pay in accordance with the statutory entitlement in section 119 FWA. Redundancy may also be voluntary or involuntary. In terms of involuntary redundancy, it must be demonstrated that the redundancy is “genuine”, otherwise any termination may attract protections under the FWA.
There are three elements to the meaning of genuine redundancy:
- The employer must no longer require the employee’s job to be performed by anyone because of changes in operational requirements;
- The employer must comply with any consultation obligations it has under a modern award or enterprise agreement; and
- Redeployment within the employer’s business or an associated entity must not be reasonable in the circumstances.
Demonstrating satisfaction of these elements requires a factual examination of the circumstances leading up to the decision to make the employee redundant. In a recent case note, we examined redundancy in the context of a downturn in business.
A range of protections exist for employees. These include unfair dismissal and the general protections which prevent dismissal on a discriminatory basis (which may include sickness or injury) or for exercising workplace rights.
For example, an employee cannot be dismissed because simply because they fall ill or are unable to attend their workplace due to family or caring obligations.
Protections at work
Aside from protection against dismissal, the general protections provisions of the FWA also apply to work generally and protect workers against: adverse action (an employer or industrial association taking action, threatening to, or organising action against an employee), coercion, misrepresentation, and undue influence or pressure.
These acts may arise in a huge variety of circumstances including termination, the payment or non-payment of entitlements or salary, discussion about workplace conditions, entitlements or rights, the making or variation of agreements, and the effects of workplace decisions.
The JCL team are closely monitoring the situation and will continue to provide updates when available. If you would like to speak with a member of our team regarding any of the matters raised in this article, please do not hesitate to contact us on 1800 JCL LAW.