South Australians have entered the most stringent COVID-19 lockdown seen in Australia, at this stage for six days. This note recaps the options available to employers who do not have enough productive work for employees because of the impact of these restrictions.
Throughout the 2020 COVID-19 pandemic, various measures have been implemented to contain the spread of infection. These have had widespread economic impacts. Industrial relations laws have also evolved, and a range of options are available for employees who do not have productive work for employees because of the virus itself or the government-imposed restrictions.
EMA Consulting has previously released detailed information about those options, but this EMA Note is a summary and a framework for decision-making. All the options in this note assume that the employer has insufficient productive work for its employees because of the effects of the pandemic or the government restrictions.
Whatever options are chosen, employers must check any applicable Fair Work Act (Jobkeeper) provisions, awards, enterprise agreements, contracts of employment, and policies or procedures to see what consultation obligations they have. These will vary depending on the option implemented. Breaching consultation obligations can result in penalties and disputation. .
Can employees work from home?
The pandemic has proven that productive work from home is feasible for some occupations and industries. The current SA restrictions mandate compulsory work from home where possible. Before implementing other options, employers should assess whether this can be done safely. Many awards now contain flexibilities for working from home, and the Jobkeeper-enabling stand down provisions in the Fair Work Act address it specifically.
General Stand down – under an enterprise agreement or the Fair Work Act
Under the Fair Work Act 2009 (Cth) an employer may ‘stand down’ employees without pay in certain circumstances, including a stoppage of work for any cause for which the employer cannot reasonably be held responsible. If the employee’s enterprise agreement or contract of employment provides the employer an ability to stand down, the specific stand down provisions in the enterprise agreement or contract will apply and the FW Act will not apply to that employee. Enterprise agreements may contain additional protections for employees or restrictions on the power to stand down employees.
Where the government imposes mandatory lockdown or closure it may result in there being an actual stoppage of work for which the employer itself cannot reasonably be held responsible. Even if your industry is permitted to operate, critical parts or services in the supply chain may be disrupted leading to a stoppage. For a stand down under this section, the work itself must be stopped, not just slowed down. We recommend employers seek advice to determine whether there is likely a stoppage of work in their circumstances.
The onus is on the employer to demonstrate that the employees cannot be usefully employed, and this is an objective test, not simply an employer preference. Once useful employment becomes available, relevant employees need to be recalled to work.
JobKeeper-enabling stand down
If an employer qualifies for JobKeeper, they may be able to issue a JobKeeper-enabling stand down direction to JobKeeper-eligible employees to reduce or cease their hours of work.
If the employer does not currently qualify for JobKeeper but meets the legislated threshold for a “legacy employer” a partial stand down could be available. However, this only permits a partial reduction in hours, and is subject to a seven-day consultation period.
These directions are subject to complex conditions, especially around consultation and “reasonableness”. They would likely be most useful only where there is a slowdown but not a stoppage that meets the threshold for a simpler stand down under the Fair Work Act.
Award pandemic leave schedules
Almost all awards have specific temporary schedules for COVID 19. These include access to unpaid pandemic leave where an employee:
is required by government or medical authorities or on the advice of a medical practitioner to self-isolate and is consequently prevented from working; or
is otherwise prevented from working by measures taken by government or medical authorities in response to the COVID-19 pandemic.
Additional award flexibilities may also include ability to take annual leave at half pay, or changes to certain award clauses if the employee is working from home. Employers should check these award schedules for any applicability to their circumstances. These provisions are a “workplace right” so employers must take care not to take adverse action against an employee because of any entitlement in them.
Require further information/assistance?
This note is necessarily general in nature. EMA Consulting is operating remotely but on a program of business as usual. We are ready to promptly assist employers with any issues arising from the lockdown measures. If you require further information or specific advice about your situation, please contact one of our consultants.
 See s 524