Changes to Australia’s employment laws in response to COVID-19

By Kristy Peacock-Smith, Jessica McDonald

05-2020

The coronavirus pandemic has had a major impact on employers across the globe, resulting in unprecedented levels of social restrictions, as governments and health authorities attempt to "flatten the curve". As a consequence of these restrictions, many businesses have been forced to significantly adjust their operations, or in some cases cease trading altogether, leaving them with the task of navigating Australia’s complex employment laws as they look for solutions to continue operations, but also retain their employees.

At the time of writing, Australia has 6,675 confirmed cases and 78 people have lost their lives to the virus. Over the last 24 hours, the number of new cases reported is down to 13, and the curve is ‘flattening’; however, with social restrictions set to continue for at least the next four weeks, likely even longer, it looks like Australia will continue with this new ‘normal’ way of working for the foreseeable future.

In this article, we will look at how Australia’s employment laws have responded to the crisis, and the changes implemented that provide greater levels of flexibility to employers and employees.

Amendments to the Fair Work Act

The most significant change in Australia’s employment laws is the temporary amendment to the Fair Work Act as a result of the government’s new JobKeeper scheme (see further below). As part of the changes, employers who qualify for the Government's JobKeeper subsidy will be able to make what will be known for the next six months as "JobKeeper-enabling directions".

JobKeeper enabling directions allow employers to:

  • direct employees reduce their days/hours of work or not to attend work at all;
  • alter employees’ usual duties or location of work;
  • alter employees' usual work days; or
  • direct employees to take a period of annual leave, which request an employee must not unreasonably refuse.

Amendments to Modern Awards

In order to provide employers and employees greater flexibility to vary working arrangements and deal with the unprecedented challenges arising in these difficult times, the Fair Work Commission (FWC) has implemented a number of temporary measures in many Modern Awards.

Notably, the Commission has made an en-masse variation to 99 Modern Awards to include access to 2 weeks unpaid ‘pandemic leave’ and the ability for employees to take double the amount of annual leave at half pay.

The Commission has also granted temporary amendments to the Clerks – Private Sector Award to provide more flexibility for remote working arrangements, directions around the taking of annual leave and reducing hours.

Each of the Modern Award amendments remain in place until 30 June 2020, unless extended.

Government subsidies

In addition to changes to Australian employment laws, a number of government funded initiatives have been introduced to provide financial support to eligible employers during the coronavirus pandemic.

JobKeeper payment subsidy

Qualifying employers will be able to claim a flat-rate payment of $1,500 per fortnight for every eligible employee on the books from 1 March 2020 until 27 September 2020. Employers will qualify where they expect to experience a 30% reduction in turnover (or 50% for larger business, and 15% for registered charities) compared to a comparable period in the previous year.

Eligible employees include full-time & part-time employees, and casual employees who have been employed on a regular and systematic basis for greater than 12 months.

Boosting cash flow for employers

This subsidy provides support for eligible small and medium-sized business and not-for-profits with an aggregated turnover of less than $50 million that employ people in Australia. Eligible employers will receive between $20,000 to $100,000 in cash flow boost amounts by lodging their activity statements up to the month or quarter of September 2020.

The cash flow boosts will be delivered as credits in the activity statement system, and will generally be equivalent to the amount withheld from wages paid to employees for each monthly or quarterly period from March to June 2020.

Remote working: work health and safety & protecting confidential information

In light of strict social restrictions, a significant portion of Australia’s workforce are now working remotely. Importantly, an employer’s obligations to employees under work health and safety laws remain largely unchanged. That is, an employer still has an overall duty to protect the health and safety of its employees.

The steps that employers can take to meet that duty and minimise risk at a worker’s home will be different to those taken in the workplace; however, effective steps may include:

  • providing guidance on safe home office environments, ergonomics and how to keep physically active;
  • asking employees to complete a self-assessment checklist; and
  • talking to employees regularly to ensure their mental health is also being protected.

The security of company information is a critical consideration where employees are working remotely. Practical measures to protecting company information include:

  • reminding employees of their obligations under relevant IT/data protection policies;
  • prohibiting the use of public Wi-Fi (i.e. working in a café);
  • encouraging the use of VPNs;
  • ensuring company information is not saved on personal computers; and
  • limiting access to non-essential databases.