Government advice and direction about social distancing appears to be changing daily, and each new direction brings new issues and challenges for businesses, with one of the biggest being around obligations to staff. Snedden Hall & Gallop Senior Associate and Head of Employment Law Emily Shoemark recommends businesses do their homework before they engage with their staff during the current crisis.
“Everyone is stressed. The COVID-19 pandemic has come as a shock to all of us. If you know your obligations and you keep the communication lines with your staff open, the better the likely outcome. Don’t assume that you need to be making all the hard decisions by yourself. Your staff may come up with solutions,” Ms Shoemark said.
One of the main changes happening in the workforce is allowing staff to work from home.
Ms Shoemark says no employee has a right to work from home but all employers have a duty of care to create a safe workplace for employees.
“Obviously, whether or not your staff work from home depends on the type of business you run, and whether this is possible, but if staff do work from home you need to ensure that any employee working from home is doing so in a safe environment.”
Ms Shoemark says businesses need to make sure their employees have their work area set up properly.
“Ask them to send you a photo of where they are working so you can identify any risks. As an employer, you need to take reasonable steps to ensure your employee has a safe workplace. And, make sure you check in with them, check that things are ok,” she said.
In situations where an employee asks to work from home, to care for school-aged children, for example, Ms Shoemark advises that businesses need to assess whether that person’s job can be performed at home.
“Then I would recommend having a discussion with the employee about how many hours of work at home they realistically expect to be able to do. Any arrangements to work from home should be agreed to and recorded in writing, for the clarity for both parties, and reviewed after a couple of weeks.”
If the employee’s role is one that cannot be done at home, then the employer may need to consider if redeployment to another position is possible. If not, the employee may need to take carers or annual leave or leave without pay, for some or all of this time.
Ms Shoemark says, in most cases, businesses can only require that an employee use their paid leave at a specific time with their agreement.
“Before making any decisions or directions, do your homework. It is important to review any applicable award or enterprise agreement, as well any individual employment contracts in place, and work out if you can ask an employee to use their paid leave.”
Again, any agreement with an employee to voluntarily take paid or unpaid leave should be recorded in writing with a copy provided to the employee.
For businesses in sectors impacted by the restrictions, such as hospitality or retail, the number of shifts offered to casual employees can be reduced without any legal implications. The only exception to this is long-term casual employees who have been working the same pattern of shifts for a long period. For those long-term casuals, and any full-time or part-time staff, hours of work can generally only be reduced with the employee’s agreement.
“Employers are obliged to seek agreement from each individual employee in these categories. If an employee agrees to a reduction in hours, then this will be a variation to their employment contract and should be recorded in writing,” Ms Shoemark said.
In many cases, businesses have been directed by the government not to open. For these businesses, Ms Shoemark advises that the Fair Work Act may allow an employer to stand down employees without pay if there is a stoppage of work.
“Standing down an employee is not the same as redundancy. Businesses are maintaining their relationship with their employees but it is suspended for a period and leave will continue to accrue while they are stood down.”
If an employer decides that it cannot keep all its staff, they will need to make some positions redundant.
“This is obviously the most difficult situation for both employers and employees, and employers should carefully review any applicable awards or enterprise agreement as there may be specific consultation requirements to follow.
“However, if you are a small business employing 15 people or less, unless you have made an agreement providing additional entitlements, the requirement to pay redundancy does not apply. In this case, you can follow the Small Business Fair Dismissal Code and Checklist to ensure you are taking all the correct steps.”
Snedden Hall & Gallop Lawyers is running a free webinar Dealing with COVID-19: How do I manage my workforce? on Wednesday, 1 April from 10:30 am to 11:15 am. Register via Eventbrite.