With the new WA lockdown announced with less than 24 hours’ notice, many employers and employees were left to decipher the directives issued by the Government themselves. With much confusion and lack of clarity in the WA community, Gemma Wheeler-Carver, Associate in our Employment Law team, provides an overview of the common issues employers and employees are facing during the lockdown.
Health and safety
Employers and employees need to consider their health and safety obligations to each other. Employers have a duty of care to their employers and are required to ensure the health and safety of their workers and others who may be impacted by the work being undertaken. This should be their first consideration when making decisions at this time.
Equally, employees have obligations to their employer and colleagues. Employees who are unwell or in isolation should not attend at a workplace. Similarly, employers should not require employees who are unwell or in isolation to attend physically at work.
Where the government has directed that all non-essential workers do not attend work, businesses should carefully consider whether their business is “essential” or not, and if they are essential, whether the work can be undertaken remotely. The government has provided limited guidance (and as of last night, three updated directions) as to what is considered ‘essential’ and unfortunately, there is still a lot of uncertainty about the issue.
So, can an employer direct you to stay home without pay?
Under certain circumstances, employees may be requested not to attend work, and not be paid for any time they would have otherwise worked. These include:
- Stoppage of work
Under section 524 of the Fair Work Act 2009 (Cth), where an employee cannot usually be employed due to a stoppage of all or part of the work in the business (for example when the government tells a business it cannot open). We have previously written about that here.
- Businesses receiving JobKeeper
Employers who are still receiving JobKeeper may stand employees down by written direction, however they must continue paying them the Jobkeeper amount. Employees may choose to instead take annual leave (or “top up” their wages with annual leave) by agreement with their employer.
- Businesses with “legacy” JobKeeper employees
Employers who are “legacy” employers (which means those previously receiving Jobkeeper, that are no longer receiving it but still qualify to give directions) may also stand employees down by written direction. However, these businesses cannot reduce an employee’s hours below 60% of their ordinary hours. Employees must be paid for any hours that they work at their usual salary (and in any event cannot receive pay for less than 60% of their usual hours, even if not able to attend work due to an employer’s direction).
- Employment agreement/modern Award
If your employment agreement or modern Award allows you to do so. Employers must follow the processes under the enterprise instrument carefully.
Each of these options requires careful consideration as to whether an employer is able to use the option. Each also requires a careful process to be followed and documented. Employers should ensure they follow these to minimise risks from claims for unpaid wages, general protections, and discrimination claims.
Employers should discuss their plans with employees, and explain to them the necessity of their decision, as well as ensure the relevant notices are given in writing.
Employers may also wish to consider whether they will consider agreeing for their employees to take paid annual leave (if requested by the employee). Employers should also consider whether they are able to direct employees to take annual leave during this period, for example where employees have excessive (8 weeks plus) leave accruals.
In some circumstances, employees may be able to take personal leave, however, employees should note that, if they are stood down completely, personal leave may not be available to them (as there is no attendance at work required).
Where an employee is absent from work due to ill-health, government directed isolation or a family or household member’s illness or death (and otherwise would be required to be there in person or working from home) they are still entitled to access their personal leave entitlements.
Directing employees to not work
Employers may wish to consider whether they will also direct that employees who have been in high-risk areas (whether or not they have been tested yet) should not attend work and will need to consider the process for doing so carefully.
Where an employer has chosen to direct employees to stay at home (and not work from home), not due to government directions but due to their own health and safety considerations, an employer may still be required to pay employees for their ordinary hours. For example, a café that can remain open under the government directions for takeaway but has chosen for its employees’ safety to close, may be required to pay them (as staff are ready, willing, and able to work, and there is no legal “stoppage of work” preventing them from doing so).
Working from home v directions to attend work
If an employee can work from home, an employer should allow you to do so. However, it’s up to the employer to determine whether it is reasonably appropriate and/or possible for you to work from home. If your staff are not essential workers, and cannot work from home, then you may be able to stand them down without pay (see above).
If they are essential workers, you may direct them to attend (or agree with them to take annual leave, or personal leave if appropriate).
If an employer is directing staff to attend at work and employees consider that they are non-essential workers, that employee can refuse to attend at work on the basis that it is illegal. It is unlikely that they will be paid for that time (as it may be considered “stand down” due to a stoppage of work) but they may be able to access annual leave by agreement. Employees may also make complaints to Worksafe WA and/or the Fair Work Ombudsman about unreasonable requests to attend work (including where there are personal health and safety considerations).
Consequences of refusing to attend work
Employees are required to follow all reasonable directions of their employer, and where they fail to do so by refusing to attend work when directed (for example, an essential worker who refuses to attend and has no health issues that would mean their personal circumstances prohibit them from working), employers may consider terminating employment or otherwise disciplining staff. This should be done extremely carefully (including any threats to terminate or discipline). If done incorrectly, or due to an incorrect assessment that staff are “essential workers”, employers may face unfair dismissal, general protections or discrimination claims.
How can we help?
Communication is key to avoid legal risk and ensure a positive ongoing relationship between employees and employers. Understanding your options, either for this lockdown or future government directions, is important and timely advice can avoid unnecessary issues arising in the future. What works for you will be dependent not only on your legal rights, but what is best for your business’s individual needs.