In wake of the World Health Organisation declaring COVID-19 (Novel Coronavirus) a pandemic, many workplaces have responded to help stop the spread of the virus by changing their working arrangements, with many industries making the move to work from home.

However, not all workplaces have been able to work online. Service industries such as retail and hospitality have been among the hardest hit after government restrictions closed restaurants, bars and retail outlets. Employers and employees alike are feeling the serious socio-economic effects of COVID-19 as millions of jobs are either becoming redundant or at risk of becoming redundant, amid the increasing severity of temporary government restrictions.

This week, the Federal government introduced a $130b economic stimulus package to assist small businesses to retain employees. Businesses will receive a fortnightly wage subsidy up to $1,500 per employee in an effort to prevent millions of workers from losing their jobs.

So, what are your employee rights and obligations in the light of this rapidly changing crisis? It largely depends on your individual circumstances.

Sources of law

Australia’s workplace laws emanate from various sources, but the main protections are contained in the Fair Work Act 2009 (Cth) (“FWA”), the relevant awards, the Workplace Health and Safety Act 2011 (Cth), Workplace Health and Safety Regulations 2011 and Model Codes of Practice. WHS legislation is crucial as it requires employers to identify risks in the workplace, and do what is reasonably practicable to eliminate them, or where this is not reasonably practicable, to minimise those risks.

Employees should also note the published advice by the Department of Health.

Self-quarantine and self-isolation

All states and territories have engaged similar emergency powers under respective public health legislation. Your requirement to self-isolate for 14 days applies in the following situations:

• If you have tested positive for coronavirus
• If you have come in close contact with a confirmed case of coronavirus
• You arrived in Australia after midnight on 15 March 2020.

If you find yourself in any of the above situations, you should contact the Department of Health, and your employer immediately.

All travellers returning to Australia after 15 March 2020 must self-isolate for 14 days. If you refuse to comply, severe penalties apply in each State or Territory.

If you are required to self-isolate, then you must not attend work. Your options may include:

• Working from home – You should discuss this with your employer and review any agreements, employment contracts, enterprise agreement or workplace policies
• Taking sick leave, if you are unwell
• Taking annual leave or other leave such as long service leave
• Taking leave without pay

If you cannot work because you are subject to self-quarantine, you are not entitled to be paid unless you use your leave entitlements. Employees subject to a government enforcement order are not ordinarily entitled to be paid. There is a distinction to be made with an employer’s direction.

You may wish to discuss with your employer if you can undertake alternate work.

What if I want to stay home as a precautionary measure?

You should discuss your options and any alternative working arrangements with your employer.

Do I have any obligations as an employee?

Under WHS laws, your employer must ensure the health and safety of all employees. As an employee, you also have obligations. Under the Work Health and Safety Act 2011 (Cth) you have four obligations while you are at work:

1. To take reasonable care for your own health and safety
2. Take reasonable care that your acts or omissions (failure to do something) do not adversely affect the health and safety of other persons
3. Comply, so far as you are reasonably able, with any reasonable instruction that is given by your employer under the Act
4. Co‑operate with any reasonable policy or procedure of your employer relating to health or safety at the workplace that has been notified to you.

Casual employees

Casual employees do not have paid leave entitlements under the National Employment Standards, as they receive a higher rate of pay in place of leave entitlements. However, under the Fair Work Act 2009 (Cth), casual employees are entitled to 2 days of unpaid carer’s leave per occasion.

If you have lost your job, you may be eligible for the Jobseeker Allowance through Centrelink.

If you have been dismissed, and believe that it has been done in a ‘harsh, unjust or unreasonable manner’ then you can apply to the Fair Work Commission.

Stimulus package for casual workers and sole traders

The government’s second coronavirus stimulus package is designed to provide relief for retirees and to assist workers who cannot find work as a result of COVID-19 restrictions.

If you have been affected, you may be able to access a “coronavirus supplement” of $550 a fortnight for the next six months.

The package also includes doubling the Jobseeker Allowance through the introduction of the coronavirus supplement – providing an extra $550 fortnightly. This will be available to workers who meet the income test.

From mid-April 2020, you can apply for early release of your super if you satisfy one or more of the following:

• You are unemployed
• You are eligible to receive a job seeker payment, youth allowance for jobseekers, parenting payment (including the single and partnered payments), special benefit or farm household allowance

• On or after 1 January 2020:
  • You were made redundant
  • Your income or hours have been reduced by 20 percent or more.

This will be capped at $10,000 this financial year, and $10,000 in the next financial year. The withdrawal of your super will be tax-free.

Income Protection Insurance

Many employees have an automatic Income Protection Insurance Policy. You may be able to access your Income Protection Insurance through your super fund if your balance is above $6,000. Contact your super fund to discuss your options and eligibility.

Further Information

For further information on employee entitlements during the COVID-19 crisis:

• Department of Treasury
• Fair Work Ombudsman
• Fair Work Australia

If you suspect that you, or someone you know, has COVID-19, call:

• Coronavirus Hotline on 1800 675 398
• Department of Health

      To register for the coronavirus supplement, login to:

• Mygov

In the March issue of BucketOrange Magazine, we chat with Nicola Martin and Chiara Rawlins from McCabe Curwood Lawyers in Sydney to answer some of the internet’s most frequently asked questions for small business owners and employers in the midst of the COVID-19 crisis.

What general obligations do business owners have to staff during the crisis? 

“At all times, employers owe an overarching obligation to ensure, so far as is reasonably practicable, the health and safety of all its workers, including volunteers, and a duty to ensure the health and safety of other persons is not put at risk from work carried out.  This requirement arises from section 19 of the Work Health and Safety Act 2011 (WHS Act), and includes an obligation for employers to identify risks at the workplace, and take whatever reasonably practicable steps to eliminate those risks.  In circumstances where it is not practicable to eliminate a risk, employers must take steps to minimise the risk.

Despite the unprecedented circumstances arising from the current coronavirus pandemic, it is important to remember that an employer continues to owe these general work health and safety obligations to its workers.”

Does an employer have a specific obligation to protect staff from coronavirus?

“As set out above, section 19 of the WHS Act imposes a general obligation upon employers to ensure the health and safety of its workers, so far as reasonably practicable.

To meet these obligations during the coronavirus pandemic, it is necessary for employers to adopt strategies to minimise the risk of employees being infected by coronavirus in the course of their work. 

What control measures are implemented will largely depend upon the specific circumstances of your workplace, and what work is being carried out.  However, it is generally recommended that steps such as the following should be taken across all workplaces:

• Actively monitoring news and government sources for updated recommendations and restrictions
• Ensuring employees are aware of the symptoms of coronavirus, as well as how and when to take leave
• Require employees to practice good hygiene, including frequent hand washing and limiting contact with others
• Updating control measures as and when necessary – the situation globally is moving quickly, and employers need to ensure they remain agile in developing and updating control measures

Employers should also ensure that any decisions made in response to the pandemic are not considered discriminatory for a prohibitive reason, with health and safety laws providing offences for engaging in such conduct.”

What are employer obligations to provide a safe workplace for all staff, particularly those who are immunocompromised? Is there a greater obligation owed to vulnerable members of staff?

“If an employer is aware of a medical condition that may place an employee at greater risk of contracting coronavirus or otherwise at risk of severe complications from coronavirus, such as if the employee is immunocompromised or has a chronic medical condition, the employer will have a general obligation to provide a safe workplace to that staff member. 

Once an employer is on notice of any underlying condition, this underlying condition must be taken into consideration when giving directions or instructions to that particular employee. 

For example, if an employee notifies their employer that they are immunocompromised, it may be best practice to allow them to work from home where possible in order to minimise any risk associated with performing work in the office during the pandemic.

In order to ensure that the employer’s expectations and directions to the employee are appropriate in the circumstances, it would be reasonable for an employer to request an employee to provide medical evidence of any underlying condition or medication that may place the employee in the “at risk group”.

Is an employer liable if an employee contracts coronavirus while at work? 

“If the exposure to COVID-19 occurred in the work environment the work exposure was a significant contributing factor to the COVID-19 diagnosis then an employee may be entitled to workers compensation (which is leave, which is paid under a workers compensation insurance policy). 

Given exposure to coronavirus can occur anywhere, and particularly as Australia sees an increase in the number of cases, it may be difficult to, in fact, establish that the exposure occurred in the work environment and that employment was a significant contributing factor. Note that workers compensation laws vary from State to State and Territory to Territory. An employer could potentially be liable under WHS laws if an employee contracted coronavirus in the work environment because the employer did not take reasonably practicable steps to eliminate or reduce the risks over which the employer had control or influence.”

Can an employer force staff to take leave?

“Generally, an employer cannot force an employee to take leave, however, there are some exceptions. Under the Fair Work Act 2009, an employer can direct an employee to take annual leave if it is reasonable in all the circumstances.

Examples of this are when a workplace is having a shutdown (usually over the festive period but it does not have to be just at this time) or when an employee has ‘excessive leave’. Employees who are covered by Modern Award and Enterprise Agreements may have specific provisions relating to these issues. For example, in some Modern Awards there is the requirement for employers to provide employees with a minimum of 4 weeks of notice for any shutdown.  

For long service leave, the ability of an employer to direct employees to take long service leave depends on the relevant State or Territory long service leave jurisdiction. In NSW an employer can direct an employee to take long service leave once the employee has over 10 years of service on the provision of 1 month’s notice.

An employer may also ask employees to take annual or long service leave in an effort to reduce costs as a measure to avoid job losses. In this type of situation it is up to the employee whether they agree to take the leave or not.”

What leave entitlements are employers obligated to pay staff in these circumstances?

“If an employee has contracted the virus, or is caring for a family member who has contracted the virus, the employee will be able to access their paid personal/carer’s leave. If the employee has exhausted all paid personal/carer’s leave, an employer could agree with the employee that they could utilise any other kind of paid accrued leave.

There remains the question of whether employees would be able to access their personal leave if they have exhausted their accrued annual leave and long service leave and are unable to attend work. Typically employees are not entitled to use personal/carer’s leave if they are not unwell or caring for a family member, however, some employers are allowing employees in this situation to access their personal given the unprecedented circumstances.

As noted above, if an employee is in self-isolation because of a government directive, but is not actually unwell, they would be able to access their annual leave during their period of absence from work.

However, if an employee is directed to stay at home by their employer as a precautionary measure, yet they are ready, willing and able to work, the employee should be paid their ordinary wages for their ordinary hours of work.

That being said, employers should explore whether the employee would be able to work from home in the first instance.”

Can employer prevent staff from travelling?

“Employers should be following Government guidelines when determining whether their staff should be permitted to travel. Most employers should be directing their employees to not undertake business-related travel to mitigate the risk of their employees contracting the coronavirus. 

With respect to preventing staff from taking personal travel, this could be considered a lawful, reasonable direction if the employer has concerns about their WHS obligations. In any case, the employee should be notifying the employer of any travel plans (even domestic ones) before taking any leave. 

We are seeing States closing their borders and international travel extremely restricted. On this basis employers issuing a direction that is in-keeping with the guidelines regarding social distancing and non-essential travel would be acting reasonably.”

Can an employer direct staff to work from home?

“Yes, in the circumstances this would likely be considered a lawful reasonable direction and it may well be unreasonable to require employees to attend a workplace if they could otherwise perform their role effectively from home.

However, employers should note that their WHS obligations still apply even when employees are working remotely. Employers should consider sending out working-from-home guidelines to employees (which, in effect, act as a shortened risk-assessment of the home work environment) so employees are aware of their own responsibilities to set up safe work practices at home.”

Can an employer direct staff to come to work? What if that person is immunocompromised, or lives with someone who is vulnerable?

“Potentially, but there is no one-size fits all answer. It very much depends on the circumstances. The situation is changing daily.

Unless there is a Government direction for us to remain away from work, not travel (unless essential) or to isolate or quarantine, it may be a lawful and reasonable direction to attend work.  

It will depend on a range of factors but the overarching duty for the employer is to take all steps reasonably practicable to eliminate, or if the risk cannot be eliminated, to reduce any risk.

Relevant considerations will be:

• Can the employee work from home?
• Why does the employer require the employee to attend the office?
• Does the employee work in essential services?

If the employee is immunocompromised, or lives with someone who is vulnerable, then an employer will likely need to adjust any general directions made to its workforce for these individuals.

As noted above, if an employer is aware of a medical condition that may place an employee at greater risk of contracting coronavirus or otherwise at risk of severe complications from coronavirus, such as if the employee is immunocompromised or lives with someone who is vulnerable, the employer will have a general obligation to provide a safe workplace to that staff member. 

Once an employer is on notice of any underlying condition, this underlying condition must be taken into consideration when giving directions or instructions to that particular employee.  For example, if an employee notifies their employer that they are immunocompromised, it may be best practice to allow them to work from home where possible in order to minimise any risk associated with performing work in the office during the pandemic.

In order to ensure that the employer’s expectations and directions to the employee are appropriate in the circumstances, it would be reasonable for an employer to request an employee to provide medical evidence of any underlying condition or medication that may place the employee in the “at risk group”.

If a staff member is being tested for coronavirus, should that person stay home until they receive their result, even if they feel otherwise well?

“Yes, an employee who has been tested for COVID-19 must self-isolate until the test results are known. Only if the test is negative will an employee be able to return to work.”

If a staff member tests positive for coronavirus, what are the employer obligations?  

“The employee must self-isolate for 14 days and cannot attend work during that period even if they are only displaying mild or even no symptoms.

An employer continues to owe WHS obligations to the employee and should do what they can to support the employee. The employer should allow the employee (if they are a permanent employee) to access their personal (sick) leave, assuming the employee has accrued paid personal leave and has provided appropriate medical evidence substantiating the absence.

If no paid personal leave is available, the employer should offer the employee the ability to use any annual leave or long service leave available. An employer may even consider offering some other type of paid special or isolation leave although not legally obliged to.”

What is ‘force majeure’ and can how can it affect small businesses?

“The expression “force majeure” refers to an event that was not contemplated by the parties when they entered the contract. A force majeure clause in a contract generally excuses “innocent parties” from performing their contractual obligations because a contractually defined event prohibits or thwarts contractual performance. Force majeure events that are commonly included in contracts include “acts of God” (extreme natural occurrences such as floods, tsunamis and earthquakes), strikes, riots, and acts of war.

Whether COVID-19 constitutes a force majeure event, thus entitling a small business to be excused from performing its obligations under a contract, will depend upon the specific wording of the relevant clause. The small business would also need to establish a causal connection between the emergence of COVID-19 and its ability to perform under the contract.”

Can the government force a business to close? 

“Yes, these powers exist at both a state and national government level.

In New South Wales, the Health Minister has powers under the Public Wellbeing Act 2010 (NSW) to put in place an order that businesses either operate in a restricted manner, or close entirely. At the federal level, similar powers exist under the Biosecurity Act 2015 (Cth), allowing the government to restrict all operation of businesses within a defined area (called ‘human health response zones’).”

Can the government force a business to stay open?

“As a matter of general principle yes, however, the relevant government powers are less specific than for business closures.

Under the Biosecurity Act 2015 (Cth) the Federal Health Minister has an extremely broad power, during a human biosecurity emergency period, to determine any requirement that he or she is satisfied is necessary to prevent or control the emergence, establishment or spread of a human disease in Australian territory. This would include a requirement to keep businesses open or ensuring businesses continue to operate “as normal”.

More specifically, for pharmaceutical or medical products businesses, there are provisions in the Therapeutic Goods Act 1989 (Cth) which operate to ensure stock levels and supply of products related to current health emergencies such as COVID-19. These provisions could be used to force businesses to stay open to guarantee this supply.”

What are the penalties for failing to comply with a government direction under the Biosecurity Act 2015? 

“There are various penalties within the Biosecurity Act 2015 (Cth) which depend on what sort of government direction is violated.

If the direction relates to disclosures or restrictions on entering Australia – the fine is currently $6,300.

If the direction relates to a behaviour or practice – such as mandated decontamination – the fine is currently $25,200.

If the direction established a human health response zone and required a businesses to close – the fine is currently $6,300.”

About the authors

Nicola Martin is a Principal at McCabe Curwood lawyers. She is a highly experienced employment lawyer and is experienced in representing clients in the Fair Work Commission, State Industrial Relations Commission, Federal Circuit Court and Federal Court as well as conducting mediations and conciliations. She has a particular interest in anti-discrimination and harassment issues.

Chiara Rawlins is a Principal in McCabe Curwood’s litigation and dispute resolution group. Her expertise covers commercial and general litigation and dispute resolution across a broad range of industries. Chiara has acted for major manufacturers, property developers, financial institutions, engineering companies and medium to large Australian and international businesses across a variety of practice areas. Chiara prides herself on working with her clients to achieve solutions tailored to their business and commercial needs.

Right. Well. Here we are.

World events over the last few months have left most of us feeling like a pancake that’s unceremoniously been flung across the room.

Since the coronavirus outbreak in November last year, our collective situation has not been well-situated (and by that, I mean that things have deteriorated fast). It’s been a cataclysmic chain reaction that has brought the globe to a grinding halt. Cities have gone into lockdown, thousands of people are dying or seriously ill, first-world health care systems are collapsing, a global recession is imminent, and small businesses – the tourism, hospitality, beauty, music and dental industries, in particular – are being hit hard.

On Thursday, Qantas announced that it is suspending all international flights until late May 2020. (You know things are bad when travel and sports are cancelled). And all this because some selfish little sod in Wuhan, China decided to lick a pangolin.

Overnight, the world has become a society of neurotic germaphobe shut-ins, where the mere thought of touching a door handle or elevator button now causes most of us to slip into a gentle seizure.

(See lead image)

So, if the end is nigh, what can, and should, we be doing to while away the countless hours of isolation stretching ahead of us?

1. Make a will

Ha, ha. Funny.

But seriously. Now is the time to stop procrastinating and to get it done. Making a will is the only way to ensure you decide what happens to your property and assets after you die. Otherwise, your money could end up being bequeathed to someone you never intended should get their hot little hands on it.

(Like that record player your irritating sister, Tracy, has been eyeballing for years … “Shut up, Tracy!”)

2. Make your brain werk for it

Netflix Party will only go so far.

Many Ivy League Universities and Australian educational institutions, such FutureLearn, have hundreds of free courses online. The ANU College of Law’s Juris Doctor degree is entirely online, as are many courses through Open Universities.

So … rather than spending your free time “panic googling” your symptoms, (or whether you can catch a virus through the walls of your house if your neighbour sneezes in their backyard) try to develop some skills that you can apply in your career or business once you’re free to gleek on other humans again.

3. Stay well-hydrated

When everything is uncertain, one this is certain.

Your long-time relationship with good friends gin, vodka, and whiskey. And if we’ve learned anything from China’s post-quarantine spate of divorces it’s that living in close quarters with family, especially young children, can be a traumatic experience.

Enter the humble quarantini and online cocktail making courses! Designated driving is a moot point when your bed is a mere 3 feet from the kitchen.

4. FaceTime your extroverted friends who are “social distancing”

If you are an extrovert, being isolated in the sensory deprivation tank of your house can feel like your psyche is slowly folding like a road map.

Most are looking to find a meaningful connection anywhere.

It’s a slippery slope from having long and involved powwows with pets over the morning news to justifying the need to stick googly eyes on appliances, milk bottles, and wall sockets, just so that the house seems more crowded and friendly.

Spare a moment and give them a call (not a text!). They need you right now.

5. Check your health insurance

While you may not need it, you shouldn’t risk it.

Is your policy up to date? Do you have ambulance and hospital cover? In the case that you do need to be hospitalised for an extended period of time, you don’t want your resulting medical bill to sting more than the harsh light of day once you leave confinement.

6. Continue to support small businesses

Right now, small businesses in Australia are arguably suffering most from the coronavirus crisis.

Many are now facing impossible decisions about laying off staff, innovating to ensure their survival, living without an income for up to 6 months or even making the decision to close entirely.

Support your friends who are running businesses. Contact them regularly. Offer any assistance you can. If you’re a lawyer, volunteer free legal advice on issues they are unexpectedly facing, like how to go about negotiating a reduction or suspension in lease repayments with landlords.

If you are feeling well, continue to see your local hairdresser and dentist. Most small businesses have developed coronavirus policies and procedures that include strengthened hygiene measures in an effort to ensure the safety of staff, clients, and patients.

Most importantly

(at least for the next few months)

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• How to argue like a lawyer
• How to argue like a lawyer vol 2