COVID – 19: Employment Rights Q&A

In general, 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, especially if the purpose of the direction is to comply with the employer’s obligations under work health and safety legislation.

If your employer unilaterally cuts your hours of work without at least giving you the required notice or pay in lieu of notice and without having a valid reason or following a fair process, this may give rise to an unfair dismissal claim (subject to you meeting the eligibility criteria). However, you should bear in mind the possibility of the employer making your job redundant if you do not agree to a variation to your work hours.

If your employer requires you to work extra hours, you should consider whether these are reasonable additional hours to your contracted hours or the weekly maximum of 38 hours a week. Whether additional hours are reasonable depends on a range of factors including:

• health and safety
• the employee’s personal circumstances
• the needs, nature and usual patterns of the workplace and the job
• monetary compensation and
• any notice given to work the additional hours.

If your employer directs you to work your hours at different times check any applicable modern award, enterprise agreement or contract to see if this is permitted in that document. For example, many awards and agreements allow employers to change rosters, subject to certain notice requirements. For more information contact JobWatch or the Fair Work Ombudsman.

If your employer cuts your hours or does anything else amounting to adverse action  because you took personal leave in connection with Covid19 or you exercised your workplace rights in relation to this virus, you may be entitled to lodge a general protections dispute to the Fair Work Commission.  More details are available here:

General Protections Dispute – Non-Termination Claim – Download

Unfair Dismissal  – Download

If your employer directs you to stay at home, it may be a lawful and reasonable direction if the employer is taking reasonable steps to protect your (or your co-workers’) health and safety. An important question is whether you should still be paid during the time when you are directed not to work.

If you feel that you are ready, willing and able to work (ie, you are not sick), you may be entitled to continue receiving your ordinary pay. It may not be a lawful and reasonable direction that you should use up your personal leave.  If your employer does not pay you, you may make an underpayments claim. See JobWatch’s ‘Getting paid and pay slips’ infosheet for more information.

On the other hand, if you agree that you are not fit for work (ie you are sick), then you are entitled to take your paid personal leave. If you are a casual employee, you are not entitled to any paid personal leave if you are sick and cannot go to work.

If your employer’s business closes down temporarily due to Covid19, this may be a “stand down” or a “shut down” situation. If you are not on personal leave, or another period of leave which is authorised by your employer (eg annual leave or some other type of leave), it is possible that your employer may not have to pay you if it can demonstrate that employees cannot usefully be employed during that period because of a stoppage of work for a reason for which the employer cannot reasonably be held responsible. Check any clauses that are relevant to shut down or stand down in any applicable modern award, enterprise agreement and your contract. For more information contact JobWatch or the Fair Work Ombudsman.

State and Federal Governments are advising that currently it is not necessary for people to wear face masks if they are well.  However, it is important to understand that both employees and employers have occupational health and safety obligations. This means that:

• Employees have a duty to take reasonable care of their own (and their co-workers’) health and safety; and
• Similarly, employers have a duty to take reasonable care of all their workers’ health and safety.

Everyone’s workplace is different. What is a reasonable health and safety measure in one workplace may not be reasonable in a different workplace.

If you are directed to wear a face mask because your employer reasonably considers that this is in the best interests of the workers, based on health and safety concerns, this is likely to be a lawful and reasonable direction and you should obey it. However, if your employer is not providing you with the face masks and expects you to obtain one yourself, this may not be a reasonable direction.

Employees must follow lawful and reasonable directions of their employers. Additionally, both employees and employers have an obligation to take reasonable care of their own (and their co-workers’) health and safety.

A direction that you need to get a medical clearance before returning to work may be lawful and reasonable if it is designed to protect you or your co-workers’ health and safety in the workplace. However, if an employer directs you to pay for a medical examination in circumstances where you feel that you are fit to work and you do not need to self-isolate according to the Australian Government’s rules, then the employer’s direction may not be reasonable. For more information contact JobWatch or the Fair Work Ombudsman.

You have the right to refuse to do unsafe work. However, remember that all employees are obliged to follow their employer’s lawful and reasonable directions. If your employer’s direction that you must attend work and not work from home is, in the circumstances, lawful and reasonable, you must obey it. Each set of circumstances will be different. For more information contact JobWatch or the Fair Work Ombudsman.

There are a very limited number of situations where an employer is lawfully allowed to stand down an employee. For example, if you cannot be usefully employed because of a stoppage of work for which your employer cannot reasonably be held responsible (such as a natural disaster), and you are not on a period of paid leave that is authorized by your employer, it may be lawful for your employer not to pay you. However, it is important you check any clauses that are relevant to a stand down in any applicable enterprise agreement and your contract, as these may impose additional requirements that your employer must meet before standing you down, such as notice or consultation.

If you believe that yours is not a lawful stand down, contact JobWatch or the Fair Work Ombudsman.

A redundancy occurs when an employer no longer requires an employee’s job to be done by anyone.

Employers who suffer a downturn in business due to Covid-19 may decide to make some jobs redundant. Where a business closes down entirely, all jobs of that employer are redundant.

If your job is made redundant, you could either be offered suitable redeployment (and if you accept this, you will continue to be employed, with all your accrued entitlements continuing) or your employment may be terminated due to redundancy (in which case you may be entitled to redundancy pay, apart from notice and payment of all your other accrued entitlements).

See more information about redundancy here: Redundancy –Download

If you are dismissed due to redundancy but you do not think that it is a genuine redundancy, you may be entitled to lodge an unfair dismissal claim. Click here for more information: Unfair Dismissal  – Download

It is true that casual employees are not entitled to paid personal/carer’s leave.

As a casual, you may be eligible to receive a payment from the Australian Government if you cannot work due to enforced isolation or because you are caring for children. This is subject to residence rules, your income and assets.

One of the following payments may apply:

• Youth allowance: if you are younger than 22
• Newstart allowance: if you are older than 22
• Sickness allowance: if you have paid work but you are temporarily unable to work because of coronavirus.

See more information here: https://www.servicesaustralia.gov.au/individuals/subjects/affected-coronavirus-covid-19/people-who-dont-get-payment-from-us-coronavirus-covid-19

Under the State of Emergency, the Chief Health Officer has the power to order and enforce the 14 days of self-isolation for anyone entering Australia after midday on 16 March.

If you are not able to attend work because of a legal restraint, your employer is not obliged to pay you unless there is an express provision to the contrary in an applicable modern award, enterprise agreement or contract. However, consider the following:

• If you are not fit for work because of illness you and you are a permanent employee, you may be entitled to take paid personal leave, subject to notice and evidence requirements.
• Alternatively, your employer may allow you to take paid annual or other leave for the duration of your self-isolation.

Centrelink payments may be available in limited circumstances.

It is unlawful for an employer (or a principal) to discriminate against an employee (or an independent contractor) because of a physical disability. Both State and Federal laws protect workers against this kind of discrimination.

A physical disability includes a temporary or permanent disability, disease, illness or medical condition. The discrimination may occur on the basis of a disability which you have now, you have had in the past, you are believed to have had or you may have in the future.

Under anti-discrimination laws, employers have an obligation to make reasonable adjustments to accommodate an employee’s disability. However, if the employee still cannot perform the inherent requirements of the job, even with reasonable adjustments, then it is not unlawful for the employer to discriminate against the employee on the basis of physical disability.

There are also other circumstances when it will not be unlawful for an employer to discriminate against an employee on the basis of a disability. For example, if there is a risk to your (or other people’s) health or safety and the discriminatory measures are needed to protect you or the other people in your workplace.

People with a personal connection with someone with a physical disability (eg family members, friends or co-workers) may also be protected from being discriminated against because of that relationship or connection.

If you feel that you have been discriminated against, you may be eligible to make a claim in more than one jurisdiction. However, usually you are only entitled to make one claim, so you need to decide which jurisdiction is best for you.

To help you decide which claim is best for your particular circumstances, you may contact the following agencies or consult their websites to understand more about their processes and the laws that govern their particular jurisdiction:

• Australian Human Rights Commission
• Your State or Territory anti-discrimination agency (eg the Victorian Equal Opportunity and Human Rights Commission, Equal Opportunity Tasmania or the Queensland Human Rights Commission)
• The Fair Work Commission, in relation to a possible unfair dismissal claim or a general protections dispute (which may or may not involve a dismissal).

If you are a permanent employee (full-time or part-time) you are entitled to access your paid carer’s leave if you are absent from work because you need to provide care or support to a member of your immediate family or household who is ill, injured or affected by an unexpected emergency. Regardless of whether you are working from home or working in your usual workplace, if you wish to take paid carer’s leave you will need to comply with the usual notice and evidence requirements.

If you are not already working from home, consider discussing this option with your employer. As a minimum, parents of school-aged children who are permanent employees and have at least 12 months’ service with the same employer are entitled to request flexible work arrangements. Employers can only refuse if they have reasonable business grounds. Check your modern award, enterprise agreement or employment contract in case you have more generous benefits about flexible work arrangements.

If your employer directs you to have a heat (temperature) test at work, this should be obeyed as, in the current context of the pandemic, it is likely to be a lawful and reasonable direction. If you fail the heat test and you are directed to stay at home, consider whether you are eligible for paid personal leave or whether your employer. For more information contact JobWatch or the Fair Work Ombudsman.

If you are a permanent employee, you may access your paid personal/carer’s leave if you are absent from work in order to care for a member of your immediate family or household when they are ill or injured or during an unexpected emergency that affects them.  This is subject to notice and evidence requirements. It is unlikely that you would be eligible to access this entitlement to assist an elderly friend; however, you could discuss taking annual leave with your employer for this purpose, or propose to take leave without pay.

If you have a written or verbal contract of employment as a permanent employee (full-time or part-time) with an agreed start date and your employer asks you to agree to a delayed start date, these are your options:

• You agree to the delay, which means you agree to a variation of your contract; or
• You don’t agree. If you don’t agree, your employer should still pay you from the commencement date even though you haven’t started working. If your employer doesn’t pay you, you may write to the employer and complain about not being paid. If your employer withdraws the offer of employment because of your complaint, consider lodging a general protections dispute application with the Fair Work Commission. Ultimately you have 6 years within which to file an underpayment of wages claim. However, you should also consider the possibility that the employer may choose to terminate your employment before the start date if you don’t agree to a delayed start date. Provided they pay you in lieu of your minimum notice period, they will probably not be in breach of the employment contract.

If you have an agreement to start as a casual employee, your prospective employer can legally delay your start date due to a lack of work.