The recent outbreak of coronavirus (COVID-19) has led to an unprecedented response from Governments across the world. At Gordon Legal, we know the changes are having a significant impact on employees and contractors throughout Australia. It is important for you to understand your rights in these difficult circumstances and the Employment Law team at Gordon Legal is able to assist.
We have prepared some general information to answer some of the most common questions we are receiving. For personalised and individual advice, we offer consultations to discuss your situation.
Whilst these are very uncertain and difficult times, it is important to remember that your basic rights as an employee or contractor remain. Whilst it is no doubt necessary to work collaboratively with your employer (or those you contract to) during these difficult times this does not necessarily mean that things can happen automatically without your consent.
Can my employer stand me down without pay?
There are limited circumstances in which your employer can stand you down without pay. The Fair Work Act provides a power to stand down or send home employees (covered by the Fair Work Act) without pay in particular circumstances.
The general rule is that an employer can only stand an employee down when an employee cannot usefully be employed and there is a stoppage of work for which the employer cannot reasonably be held responsible.
A decline in customers or a general deterioration in business conditions is not necessarily something which would trigger the stand down provisions. Your employer would also be obliged to consider whether you can be otherwise usefully employed, such as by working from home. If there was a Government direction to close a particular industry then that might trigger the stand down provisions.
The Fair Work Act stand down provisions will not apply if an enterprise agreement or contract already provides a stand down provision (if so, the terms of the stand down clauses in the enterprise agreement or contract will apply).
The Fair Work Act stand down provisions will also not apply while an employee is on paid or unpaid leave or an authorised absence.
If you receive a stand down notice it is important that you get advice and check the facts, including in relation to the stoppage of work concerned, as it is a very technical area of law.
What happens if I am stood down?
The effect of being stood down is that you remain employed, although you are not required to perform work and you are not paid during the period. You will continue to accrue annual leave and personal leave entitlements during the stand down.
Can I be made redundant?
Some businesses will suffer significant downturn in this climate and may need to lay off or terminate employees as they are no longer required. Some businesses will close down entirely.
You can be dismissed in the case of a genuine redundancy. This is where there is a change in the operational requirements of the business and your employer no longer requires your job to be performed by anyone. Your employer will be obliged to consider any reasonable possibilities for redeployment and there may be additional consultation obligations on your employer under an enterprise agreement or modern award that applies to your employment.
If you think the appropriate requirements are not met, you may be eligible to challenge a termination as an unfair dismissal in the Fair Work Commission. Gordon Legal are available to advise you of your eligibility and rights.
What are my redundancy entitlements?
If you are being made redundant, you may be entitled to:
These payments will depend on your years of service and are paid in addition to other accrued employee entitlements payable on termination of employment (most commonly annual leave and long service leave). You are not entitled to redundancy payment if you are a casual or you are employed in a small business (less than 15 employees) unless an enterprise agreement or your contract provides otherwise.
The Fair Work Act provides an ability for employers to apply to the Fair Work Commission to reduce the amount of redundancy pay (including to nil) if they cannot pay the amount. Gordon Legal are available to advise you of your rights if your employer makes such an application.
What if I lose my job because my employer goes into liquidation or bankruptcy?
The Federal Government provides a financial assistance scheme called the Fair Entitlements Guarantee (FEG) Scheme to cover some unpaid employment entitlements to eligible employees who lose their jobs due to the liquidation or bankruptcy of their employer.
Can my employer reduce my hours without my consent?
Ordinarily the answer is no, in circumstances where you are a full-time or part-time employee. Casuals are in a different category as there is generally no obligation to provide ongoing work.
There have been some recent changes to Modern Awards in response to the coronavirus (COVID-19) situation in the Hospitality Industry. More changes are expected to follow. Those changes might allow employers to vary your hours for a short period of time. It is important to check the facts as they apply but the general rule is that employers cannot reduce your hours/wages without your consent.
Can my employer direct me to work from home because of coronavirus (COVID-19)?
Employees are required to comply with lawful and reasonable directions from their employer. A direction to work from home is likely to be lawful and reasonable if it is to fulfil your employer’s obligations under work health and safety legislation or to comply with government guidance responding to the coronavirus (COVID-19) crisis.
Can my employer refuse my request to work from home?
It will depend on the circumstances. You have the right to refuse to do unsafe work but you must comply with your employer’s lawful and reasonable directions. Alternatively, you may wish to consider accessing your leave entitlements.
Your rights: If you are sick, caring for someone who is sick or self-isolating
What if I am sick and diagnosed with coronavirus (COVID-19)?
If you are a full-time or part-time employee and you are sick then you are entitled to paid personal leave (where you have accrued it).
Coronavirus (COVID-19) is no different. If you are sick and need to stay away from work then you should notify your employer immediately. You should also obtain a medical certificate which certifies you as unfit and provide it to your employer.
Alternatively, a number of businesses are offering employees a new category of ‘special leave’ or ‘isolation leave’ that employees can use in this situation.
If you have run out of accrued leave or are a casual employee, you will usually not be paid.
What if my children or family members are sick and I need to care for them?
If you are a full-time or part-time employee, you should ordinarily be entitled to access your accrued carer’s leave where the leave is taken to provide care or support to a member of your immediate family or a member of your household because of illness, injury or an unexpected emergency. You should notify your employer immediately of the need to access your carer’s leave entitlement and provide a certificate from a medical practitioner which certifies that you are providing this care or support.
If you run out of carer’s leave or are a casual employee, you are entitled to take up to two days’ unpaid carer’s leave on each occasion it is needed to provide care or support for a family/household member who is ill.
You should also be aware that there are protections under the Fair Work Act and anti-discrimination laws in relation to family and carer’s responsibilities. Gordon Legal is available to provide advice if you experience adverse action or discrimination because of these responsibilities.
What if I am self-isolating or have been tested for coronavirus (COVID-19) and waiting for the results?
You may ask your employer to work from home. If this is not suitable due to the nature of your work, you may ask your employer to use your paid leave entitlements. A number of businesses are offering employees a new category of ‘special leave’ or ‘isolation leave’ that employees can use in this situation.
If you are not fit for work because you are unwell, you may be entitled to take paid personal leave if you are a full-time or part-time employee (where you have accrued it). You should notify your employer immediately and obtain a medical certificate which certifies you as unfit.
It is unlawful for an employer to terminate your employment because of a temporary absence from work due to illness (where the absence is for less than 3 months and your total absences are less than 3 months within a 12 month period). There are also a number of other protections under the Fair Work Act and anti-discrimination law that may apply if your employment is terminated while you are taking sick leave, or taking care of family members, in relation to coronavirus (COVID-19). Gordon Legal are available to advise you of your rights and potential claims.
Please note that this information is general in nature and you should consult a lawyer if you require advice specific to your situation.
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