COVID-19 Employee Working Arrangements Guide 2021 (All of AUS)
Find the answers to commonly asked questions surrounding current employee working arrangements available to employers due to coronavirus.
The following article addresses the current employee working arrangements available to employers during coronavirus. There are variety of employee working arrangements that your business may choose to undertake. Remember to stay safe, protect yourself and protect your business during this difficult and unknown period.
Am I able to stand down employees if I have been forced to close?
You do have the option to stand down employees. A stand down is basically a period of unpaid leave. This usually becomes an option for employers when their businesses must close during a lockdown period. A business must close if the government issues an enforceable direction requiring that industry or workplace to close down for a period of time. If you are considering a stand down, you can use our ‘Stand Down Notice‘ template.
Before deciding to close your business and stand down your employees, employers should always consider the following alternative methods:
(1) Working from home arrangements
If working from home is suitable for your workplace or industry, you should always consider this as your first option. It is one of the most popular forms of employee working arrangements as it allows many business to continue operating. For further guidance on current working from home arrangements, see our article ‘COVID-19 Remote Work Considerations Guide 2021’ (NSW).
(2) Change to duties, hours of work or rosters
Employers can also temporarily agree to change their employees duties, rosters, hours or staffing levels. This arrangement allows employees to keep working, even if it is on a reduced basis, making it a great alternative to other employee working arrangements, such as working from home arrangements. However, employers should check the rules under their relevant award or agreement.
(2) Providing access to employee leave entitlements
Employers should also consider whether employees have access to leave entitlements before considering a stand down. Leave entitlements can include; annual leave or any other paid leave such as long service leave or paid leave under the relevant award, enterprise agreement or employment contract.
Can I reduce employee hours if I have been forced to close?
You are able to reduce your employees hours if your business has temporarily closed. However, employers can also implement other alternative employee working arrangements, i.e. working from home arrangements. It is important to consult with your employees before deciding to reduce their working hours. Every employer will need to check their relevant award, agreement or employment contract as each many contain rules about reducing employee hours.
If you have a full-time employee and you wish to reduce their hours to part-time or casual OR if you have a part-time employee and you wish to reduce their hours to casual, the usual rules for ending employment apply. This is because in order to change a full-time or part-time employees hours, the nature of their current employment must also change. This means that employers must:
- give or pay employees the required notice period (as stated by the relevant award, enterprise agreement or employment contract) and,
- pay out any leave and/or other entitlements owed to the employee.
For more information on changing your employee’s from full-time to part-time or casual, see our questions and answers below.
Am I allowed to make my employees take annual leave?
You may be able to direct employees to take annual leave. Employers must follow the rules of their relevant award and/or enterprise agreement before directing an employee to take annual leave. For instance, many awards contain minimum notice rules relating to directing employees to take annual leave. To see the annual leave rules specific to your workplace or industry, use this Tool.
It is important to note that you cannot force your employees to take annual leave. There should always be an agreement between both sides. If you would like to direct your employees to take annual, see our Agreement to take Paid Annual Leave.
If your employee does not have enough annual leave accrued, you may agree to allow your employee to take:
- annual leave in advance or
- unpaid leave.
Tim is a Chef at a restaurant, based in Sydney. The Restaurant Award covers his employment. Due to coronavirus, the restaurant Tim works for has temporarily shut down. Tim’s employer has directed him to take annual leave. The award governing Tim’s employment states that his employer must give him at least 4 weeks’ notice before directing him to take annual leave. Thus, an employer should also check the annual leave rules in their relevant award.
Can I change my employee’s employment from full-time to part-time or casual?
Many businesses are suffering the devastating financial effects of the COVID-19 pandemic. With such stricter restrictions in place, changing employees’ full-time position to part-time or casual employment is definitely a reasonable consideration. Let’s discern the circumstances in which you can change your employee’s employment in Australia and its legal consequences.
1) When there is an agreement between the employer and the employee to change
This is the most simple circumstance with little legal consequence. Where there is an agreement for the change to occur, Fair Work Ombudsman requires the application of ending employment rules. This includes:
- Giving or paying the agreeing employee the required notice for the change
- Paying out leave and any other entitlements owed to the agreeing employee
These are the usual rules for ending employment; however you should also consider the specific contract between you and your employee.
2) When there is NO agreement between the employer and the employee to change
In this circumstance, an employee can still change their employee’s full-time position to part-time or casual by considering the following factors:
- Whether the employment contract, registered agreement or award allow for the employer change the employee’s work hours without the employee agreeing
- Whether the change makes a new employment contract or change an existing contract
- Consider what employee entitlements should be paid (annual leave or redundancy)
- The extent of notice the employer need to give the employee
The nature of employment contracts is complex. If you’re still uncertain, it may be helpful to seek legal advice.
3) Circumstances where an employer cannot change an employee’s employment
It’s important to note, employers cannot change or end an employee’s employment for:
- Any discriminatory reasons
- Employees who have exercised a workplace right
- Any other reason protected by law
For more information regarding protections at works and employment rights, follow this link.
Do I still have to pay an employee who can’t work because they have been directed to self isolate for 14 days?
The Fair Work Ombudsman has updated the rules regarding payments for self-isolating employees on 14 July 2021. Employers are still required to pay:
- When the employee takes paid leave for the time period
- When the employee takes sick and carer’s leave
However, there are currently no specific rules that require employers to pay their employees for the time prevented from work due to self-isolation requirements. Instead, the employee should reach out to their employer to discuss the available leave options or flexible working options (i.e. working remotely).
What relief payments are available to employees that have been stood down?
The government has two relief payments available to cover this circumstance: (1) COVID-19 Disaster Payment and (2) Pandemic Leave Disaster Payment.
1) COVID-19 Disaster Payment
COVID-19 disaster payment is a lump sum payment for employees who have been temporarily prevented from work due to lockdown rules or for being at a hotspot. For less than 20 hours of work lost per week, they can receive $325 and for more than 20 hours of work lost per week, they can receive $500. However, as an employee you must meet all of the following requirements to be eligible. You must:
- Be an Australian resident or hold a visa that gives you the right to work in Australia
- Be 17 years or older
- Not be getting an income support payment, ABSTUDY Living Allowance, Dad and Partner Pay or Parental Leave Pay
- Not be getting the Pandemic Leave Disaster Payment, a state or territory pandemic payment or a state small business payment for the same period
- Have lost income and don’t have any appropriate paid leave entitlements
- Have met the liquid assets rule for your event
These eligibility rules apply for South Australia, New South Wales and Victoria with very few variances amongst the states. Read Who Can Get It to find out your eligibility according to your relevant state.
2) Pandemic Leave Disaster Payment
Pandemic leave disaster payment is a lump sum payment specifically for employees who have been unable to work due to quarantine for 14 days or for caring for someone who has COVID-19. If eligible, you can receive $1,500 for each 14 day period of isolation or for caring for someone who has COVID-19. The requirement are:
- You’re at least 17 years old
- You’re an Australian resident or hold a visa that gives you the right to work in Australia
- You’re unable to go to work and earn an income
- You have no appropriate leave entitlements, including pandemic sick leave, personal leave or leave to care for another person
This payment is available for all states and territories in Australia with few variances in the eligibility rules. Ensure you understand the relevant rules here.
Mai is a Digital Marketing Coordinator at Lawpath, working as part of the Content Team. She is in her final year of a Bachelor of Laws degree at the University of Wollongong. She is interested in Business Law and Employment Law.