Changing Employment Laws in Australia due to COVID-19

As of March 31, 2020, Australia has approximately 4560 confirmed cases of COVID-19. Based on the spread within the country, the government is encouraging employers to provide remote working opportunities to their employees in an attempt to slow the spread of infection. This puts businesses in an interesting situation where they are still attempting to keep operations running as close to normal as possible, while also protecting the health and safety of their employees.

Ten days ago (based on the time of writing), the Australian borders had closed to all visitors, except for citizens, permanent residents and close family members in order to increase the biosecurity of the country. Additionally, any Australians returning home from international travel have been instructed to self-isolate for a minimum of 14 days. As of March 29, Australia is considering the hard closure of their internal borders so that citizens are only able to travel within their home state (with additional exemptions provided for those that must travel across state borders for emergency reasons). Additionally, the Australian government has issued a ban on public gatherings beyond two people and have shut down beaches and other areas where large public gatherings may take place.

In Australia, there is a concern about employees being asked to stand down without pay because of the COVID-19 outbreak and the government and employers are working tirelessly to create an employment model to reduce redundancies and prevent such stand downs. It is important to remember that the employment legislation in Australia does not specifically have a provision that states that employers have the general right to stand down employees without pay. This is an entirely new situation so individual circumstances must be considered with every choice made.

The Australian Fair Work Act stipulates the standards that must be upheld with regard to stand down provisions. In the case where an employee cannot be usefully employed (including work slowdowns or complete stoppages due to reasons outside of the employers’ control), the Fair Work Act supports the employer in standing down an employee without pay. With the shutdown of non-essential services, more and more employees are being stood down, or their roles are being changed drastically. There are still nuances to this act that are being determined each day, and presently employees are encouraged to utilize annual leaves (where they are available) to limit their financial burden.

Larger corporations have been busy exploring different or creative arrangements so that they can continue to employ their staff, albeit not in the traditional sense. Employers have a strong obligation to ensure the health and safety of their employees at all times. Therefore, any businesses continuing to operate and remain open, have to take into account the advanced safety concerns of their employees. Employers can do so by ensuring they inform their employees of any health advice as released by the government, by restricting any work travel requirements, and by implementing ways to keep socially distant from other employees.

Employers are responsible for taking all efforts possible to ‘flatten the curve’ in their region, while continuing to protect and support their employees. More government resources (including an App with updated information) are being created to provide support for those that have been stood down. In addition, a national COVID-19 support package has been developed to support employees who are not able to work during this time. As the spread of COVID-19 increases, the actions taken will be more severe, and updated support packages will continue to be announced.

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