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The following Q&A is for employees whose employment is affected by restrictions due to public health orders to control the spread of COVID-19. This information is accurate as at 20 September 2022. Updates will be provided as further information becomes available.
This Q&A contains information of a general nature only and is not a substitute for professional legal advice. You should obtain legal advice from a lawyer about your particular situation before acting on any of the following information. This Q&A is designed for Victorian and national system employees in Tasmania and Queensland only. If you are not a Victorian employee or a Queensland or Tasmanian national system employee, you should obtain specialist legal advice about your case as soon as possible.
If your employer is forced to cease operating due to circumstances out of their control, such as a government directive, and they can no longer usefully employ you, they may have grounds to stand you down. This normally means they are not obliged to pay you.
Importantly, a significant downturn in business, or other factors within an employer’s control (e.g. not having enough staff rostered on to open a store), does not generally mean that your employer can stand you down with no pay.
If you have been stood down but you believe your employer does not have to stand you down because of an enforceable government direction, you can lodge a dispute with the Fair Work Commission. Call JobWatch for more information.
Some people may be directed by health authorities to self-isolate or quarantine due to diagnosis of or potential exposure to COVID-19.
If you cannot work from home and you are not sick while you are in isolation or in quarantine, you should check if you are covered by a Modern Award, Enterprise Agreement or a contract that says you will still get paid during this period. If you cannot find something in writing about this, your employer may not have a legal obligation to pay you, but you may come to an agreement with them about this.
There are different government support payments available if you can’t earn any income whilst self-isolating, depending on your circumstances, such as the Pandemic Leave Disaster Payment. Check your state or territory’s Department of Health website for more information, or contact Services Australia. Some Victorian workers also have access to the Sick Pay Guarantee – see the Victorian Government website for more information.
If you are sick and you are a permanent employee, you can use your paid personal leave (sick leave). You may need to give your employer a medical certificate or statutory declaration as evidence that you are entitled to take sick leave.
All permanent employees receive a minimum of 10 days of paid personal leave for each year they work. Personal leave can be used as sick leave or carer’s leave. Any part of your personal leave that you do not use rolls over each year.
You may get more than 10 days of personal leave per year if this is provided for in your Modern Award, Enterprise Agreement or contract.
You can take time off work to care for someone in your immediate family or household if they are sick from COVID-19.
If you are a permanent employee, you can use paid carer’s leave. There may be other options for you to be paid if you do not have carer’s leave, such as using other paid leave or special leave.
Employees without paid carer’s leave, or employees who have exhausted their paid leave entitlements, are entitled to two days of unpaid carer’s leave for each occasion when a family or household member needs care or support because of an illness or unexpected emergency.
If you are caring for a child who must isolate, but cannot get paid leave from work, you may be eligible for other government support payments. Check your state or territory’s Department of Health website for more information, or contact Services Australia. Some Victorian workers also have access to the Sick Pay Guarantee – see the Victorian Government website for more information.
Some workers will need to care for children at home if schools and childcare centres are closed or they are unable to attend due to infection. If you have paid personal/carer’s leave you may use this to care for a family member who needs care because of an unexpected emergency.
Under the Fair Work Act 2009, parents and carers have the right to request flexible working arrangements, such as changing the times they work. Employers also have obligations under anti-discrimination law to accommodate family or carer responsibilities.
If you are a casual employee, you are generally not entitled to paid personal leave or annual leave.
If you need to care for someone who is sick, you are entitled to take up to two days of unpaid carer’s leave for each occasion. You will still have to comply with your employer’s notice and evidence requirements for taking that leave.
There are different government support payments available if you are unable to earn any income due to self-isolating, depending on your circumstances, such as the Pandemic Leave Disaster Payment. Check your state or territory’s Department of Health website for more information, or contact Services Australia. Some Victorian workers also have access to the Sick Pay Guarantee – see the Victorian Government website for more information.
Whether you can work from home or not will depend on the type of work you do, your circumstances, and your employer’s policies.
Without government directives during lockdowns requiring anyone who can work from home to do so, your ability to work from home when required to isolate is subject to your employer’s approval, presuming that they are compliant with discrimination law and the Fair Work Act 2009.
Employees must obey the lawful and reasonable directions of their employers. Failing to comply with a lawful and reasonable direction may justify dismissal. In each situation, you will need to consider whether your employer’s particular direction is both lawful and reasonable in the circumstances.
For a direction to attend work to be lawful and reasonable, among other things, it must be safe. For example, if you are required by a government direction to isolate or quarantine, your employer cannot ask you to ignore that direction and attend the workplace.
If you think your employer’s direction to attend a workplace may not be lawful or reasonable or may be making your workplace unsafe for any reason, contact JobWatch or WorkSafe in your state or territory.
If your employer is asking you to return to your usual work location according to your existing employment contract (written or verbal) and there are no government directives that prevent you from doing so, then you should obey your employer’s direction, unless you wish to raise one or more of the following:
To be eligible to make a request for flexible working arrangements under the Fair Work Act, you must have completed at least 12 months of continuous service with your employer. If you are a casual employee, you must have worked on a regular and systematic basis and you must have a reasonable expectation of ongoing employment. Your employer may only refuse the request on reasonable business grounds.
Under the Fair Work Act, the employer must respond in writing to a request for flexible working arrangements within twenty-one (21) days. If the employer refuses the request, the employer must include reasons for the refusal. The employer cannot refuse unless there are reasonable business grounds. If there is a dispute about whether there are reasonable business grounds for the refusal, this dispute can be lodged with the Fair Work Commission, but only if there is a written agreement that allows this. Employees can also report alleged breaches of these provisions to the Fair Work Ombudsman.
If you would prefer to avoid your usual workplace because you have reduced immunity or want to protect someone in your household, try to negotiate with your employer to come to an agreement about where you should work. If you think that you can do your job from home, consider the following:
A person is not a carer merely because he or she is the relative or guardian of an individual or lives with an individual who requires care.
Your employer must comply with workplace health and safety laws, as well as any relevant government directives.
You must comply with lawful and reasonable directions from your employer. If you don’t think your employer’s direction to work from home is both lawful and reasonable, contact JobWatch.
If your employer tells you to stay at home but you cannot work from home, in some circumstances you might be entitled to be paid your ordinary pay. Your employer should keep paying your ordinary pay if you are ready, willing and able to work and it is not reasonable to ask you to use your leave entitlements, such as annual leave.
However, your employer may not be required to pay you if you are lawfully stood down, that is, where the employer cannot usefully employ you because work has stopped for a cause beyond the employer’s control, for example, if the business is required by law to close. The Fair Work Commission can hear disputes about stand downs.
If your employer refuses to pay you when they should, you can get help from the Fair Work Ombudsman. Call JobWatch for more information.
Some state and territory rules continue to require mask-wearing in certain situations and environments (e.g. healthcare), or by certain groups of individuals (e.g. household close contacts within 7 days of their contact’s infection) – unless you have a lawful excuse not to wear one.
For more information about these rules, visit your state or territory’s Department of Health website.
Employers have a duty to provide and maintain, so far as is reasonably practicable, a working environment that is safe and without risks to the health of employees. This includes preventing risks to health, including psychological health, and safety associated with potential exposure to COVID-19.
Where a risk to health is identified at a workplace, employers must, so far as is reasonably practicable, eliminate or reduce the risk.
Employers also have a duty to consult with employees and health and safety representatives, so far as is reasonably practicable, on matters related to health or safety that directly affect, or are likely to directly affect them. This includes consulting with you on decisions about how to control risks associated with COVID-19 in the workplace. The type of control measures required will depend on the level of risk as well as the availability and suitability of controls for each workplace.
Depending on the workplace, reasonable steps to ensure workplaces are safe may also include the provision of hand sanitiser, screens and other equipment.
If you think your workplace may be unsafe, contact JobWatch or WorkSafe in your state or territory.
If your employer directs you to have a heat (temperature) test at work, this should be obeyed as, in the context of the COVID-19 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 will allow you to work from home. For more information contact JobWatch or the Fair Work Ombudsman.
If your employer directs you to have a negative RAT before you work, you need to consider if this is a lawful and reasonable direction in the context of COVID-19 infection risks associated with your work, your workplace, and your industry.
Note that a requirement for a negative RAT before work should not financially disadvantage workers as this could be considered an unreasonable requirement to spend money connected to your employment. In these circumstances, your employer should provide free RATs to employees to ensure that you are not out-of-pocket.
Public transport operators across Australia are expected to work closely with the relevant government agencies to ensure that all necessary precautions are taken in relation to public transport. For more information contact the relevant Public Transport Authority for your state.
If you remain concerned about getting to/from work by public transport, try discussing your concerns with your employer. Contact JobWatch’s Telephone Information Service for more information.