With School holidays already upon us in some States and Territories, we’re considering the options for parents with children at home that may be impacted by the effects of COVID-19.
Employees have access to various leave entitlements and all permanent employees do have access to paid personal/carer’s leave when caring for a family member or member of their household when they require care or support because of a personal illness or unexpected emergency.
Casual employees are entitled to two unpaid days personal/carer’s leave per occasion.
During this coronavirus (COVID-19) pandemic there are a number of circumstances to consider, in order to determine whether an employee is eligible to use their personal/carer’s leave to care for their children. This may seem counterintuitive at first, however like all things during this time, the key is to have open and transparent conversations with your team members.
If a childcare centre has closed unexpectedly because someone from the childcare centre has tested positive for COVID-19, then this would be an unexpected emergency and in this situation the employee would have access to personal/carer’s leave.
Where an employee’s support network such as a grandparent can no longer assist with child minding, this in itself is not considered an unexpected emergency, although it does have a disruption on the way many households are currently operating.
It is important to differentiate scenarios, because each situation does result in needing to look at when different leave entitlements can be utilised.
An employer may also suggest to an employee that they could work from home, but this may be difficult with a young child and the employee may need to request to adjust their hours of work, or alternatively consider taking annual leave.
Urgent changes to some modern awards have already occurred due to COVID-19 which also means some employees can work different hours from home without being paid penalty rates. This can benefit all parties when trying to navigate uncertain times and ensure that work can still be completed.
The Private Clerks Award has a number of temporary changes due to COVID-19 including a change to the spread of ordinary hours for day workers. By agreement employees who are working from home can request to alter their hours, with the spread of ordinary hours now temporarily being from 6am to 11pm Monday to Friday and 7am to 12:30pm on Saturday.
School holidays are now upon us and what does that mean for parents and their access to leave?
School holidays are not considered an unexpected emergency or a personal illness so an employee would likely need to look at using their annual leave to care for their children, or discuss some sort of flexible arrangement with their employer (e.g. a flexible arrangement similar to the new temporary Private Clerks Award provisions).
Once again, this all points to having open dialogue with your employer. No doubt, there are challenges for all parties involved, so genuine conversations need to be had in order for everyone to try to work through this period.
The leave an employee may take can also change midway. In the event an employee is utilising annual leave but the child in their care or they themselves become ill, then this may turn into personal/carer’s leave.
It is important that conversations are documented and records of any changes made are signed off and kept on an employee’s file. Working together is critical and down the track you may need to show the process you went through if challenged.
What everyone needs to keep in mind is that we are in a stressful period and this will be challenging for everyone involved. Communication between employers and employees must be ongoing, open and realistic.
Where we can help
If you have any concerns about leave entitlements for your employees during this difficult time, we can help you.
Call us on 1300 1 OUR HR (1300 168 747) and let our dedicated team guide you through achieving a practical solution for your employees and your business.
Working as a team has never been more important.
DISCLAIMER: This is not intended as legal advice but rather general information to assist employers with COVID-19. Each business and employee is different and needs to be assessed on their individual circumstances.
Looking at all options to help protect your culture through this pandemic. Read on as we explore your immediate options during COVID-19.
Many Australians are watching the impact of Novel Coronavirus (COVID-19) unfold on all facets of our lives, and the devastating impact has been felt by employees and employers across the Nation. One of our company’s strongest values is to become part of the fabric of each business that we work with, and as a small business ourselves, we understand and appreciate the myriad of concerns that businesses are faced with as the situation evolves. With several industries affected by mandatory shutdowns by the Federal and State Government and potentially more to come, this presents the need to address the options available to employers with respect to their employees at this difficult time.
Broadly speaking, there are a number of highlighted options that employers can consider:
A stand down of all or part of their workforce
Redundancy of specific or all positions
Encouragement full-time and part-time employees to take paid leave
Agreement with employees to vary or alter regular or rostered hours
Agreed temporary reduction in wages
Stand down provisions are drawn from an applicable enterprise bargaining agreement, contract, or the Fair Work Act 2009 (Cth). Under section 524 of the Fair Work Act, a stand down can occur if the employee cannot be usefully employed due to any number of circumstances including:
Industrial action (other than industrial action organised or engaged in by the employer);
A breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown; or
A stoppage of work for any cause for which the employer cannot reasonably be held responsible.
As the outbreak of COVID-19 has affected the day-to-day running of many businesses, an employer looking to engage in a stand down would look to establish that there has been a stoppage of work that is out of their control. For example, a business within an industry that has been required to cease trading by the Federal Government would have solid grounds to issue a stand down. In this case, the employer must be able to show that:
There is a stoppage of work within the business;
Their employees that are to be stood down cannot usefully be employed; and
The cause of the stoppage is not something that the employer can be held reasonably responsible for.
During these unprecedented times, it is critical that businesses understand that Employment Law still applies and following the Fair Work Act and any modern award, enterprise bargaining agreement or contract is a must before taking any action. This includes considering whether all necessary steps have been taken to find other useful employment for affected employees within the business. Right now is the time to open discussions and be transparent with employees about what is possible across the organisation.
If a stand down can be legally implemented, then depending on any relevant industrial instrument, you do not have to pay employees for the period of the stand down. An employee may however choose to utilise their applicable leave (eg. Annual leave and Long Service leave).
The option of imposing a stand down should be exercised with caution and must be considered on its own merits. An employee contracting coronavirus is not a valid scenario in which a stand down can occur. If a stand down is deemed unlawful, then employees can recover any unpaid wages from the business and the business is exposed to potentially further risk. Employees can challenge the decision of a stand down by lodging a dispute with the Fair Work Commission so it is important to comply with all legal obligations before implementing a stand down, as there can be penalties involved for breaches of the Fair Work Act.
A redundancy may be the only option when a particular job is no longer required, and hopefully this is the last resort. It is important to remember that the usual requirements around consultation and consideration of redeployment still apply. Financial obligations also still arise under this option – you may have to pay an employee a redundancy payment, as well as any payment in lieu of notice, unpaid wages and unused leave entitlements.
It is also important to keep in mind the size of your business, as if you are a small business with less than 15 people you may not have to pay any redundancy payments.
The redundancy option is distinctly different to a stand down as by making an employee redundant results in termination of employment, whereas during a stand down an employee is still employed by the business. If at the end of a stand down, you identify a role is no longer required you would still need to follow due process.
ENCOURGEMENT TO TAKE LEAVE
It may be a viable option for your business to encourage any full-time or part-time employees to take a period of leave to allow you to determine the appropriate next steps, before taking any permanent action. Some awards, enterprise bargaining agreements or contracts may allow for provisions where you can direct any employee to take annual leave, but there are usually notice requirements around this so continuing to consult source documents remains key. Where individuals have high levels of Annual Leave or Long Service leave applicable to them, they may be more agreeable to utilise leave in these uncertain times.
AGREEMENT TO ALTER OR VARY REGULAR OR ROSTERED HOURS
If the COVID-19 situation has resulted in some economic downturn for your business, but you still require certain jobs to be done, you can consider altering the regular or rostered hours of full-time or part-time employees, subject to their agreement. As hours of work are agreed upon within an employment agreement, you cannot simply vary these without consultation and agreement. You may determine that implementing a 9-day fortnight or reducing all employees by 1 day per week is a viable option. There are different factors to consider for each business, and for each employee, there is no one size fits all approach during these times.
It is possible that an arrangement could include an employee utilising their applicable leave entitlements in lieu of agreeing to a temporary reduction in hours if this suits both parties.
AGREEMENT TO TEMPORARILY REDUCE WAGES
A business may choose to consider a temporary reduction in wages rather than looking at more permanent measures resulting in a total loss of employment. This option does require consultation with the broader group. Changes to an employee’s terms and conditions, regardless of timeframes, must be agreed in writing, as you are not able to unilaterally make changes to someone’s employment conditions. An Employment Agreement is a legal document and requires care and consideration. Any reduction in wages cannot fall below the applicable modern award or a valid enterprise bargaining agreement.
INCOME SUPPORT FOR INDIVIDUALS
Employees made redundant or that are stood down could be directed to Services Australia (Centrelink) to assess their eligibility for income support. The Jobseeker payment and Youth Allowance Jobseeker payment has been extended (for six months) to be accessible to full-time, part-time, casual, self-employed, sole traders and contract workers who are stood down or lose their employment as a result of declining economic circumstances caused by COVID-19 (this may be subject to the income test in some circumstances). If an employee is being stood down and currently accessing any paid leave, they may not be eligible to receive income support.
WE CAN HELP YOU
As a final reminder, whilst we are in unprecedented times, Employment Law applies and at the end of this, when we come out the other end, what people will remember is how they were treated by you as an employer.
These are sensitive matters which require an appropriate process to be followed.
If you find yourself as a business owner not knowing what your options are, just remember we are a small business that is here to help other small businesses. If you are impacted by COVID-19 and would like to understand your options, please call our friendly team on 1300 1 OUR HR (1300 168 747) or make an enquiry by visiting:https://ourhrteam.com.au/contact-us/.
DISCLAIMER:This is not intended as legal advice but rather general information to assist employers with COVID-19. Each business and employee is different and needs to be assessed on their individual circumstances.
The Full Federal Court of Australia handed down a decision on 21 August 2019 that dealt with the accumulation of Personal/Carer’s leave (also known as Sick Leave). Full-time and part-time employees are now eligible for 10 working days of paid Personal/Carer’s leave for each year of service. This means that the annual amount of Personal/Carer’s leave received by part-time employees is no longer pro-rated based on ordinary hours worked.
Key points to remember
Full-time and part-time employees are eligible for 10 working days of paid Personal/Carer’s leave for each year of service. Casual employees remain ineligible.
A working day has been determined to mean the period of time in a 24-hour period that is allotted to work. Practically, if a part-time employee works one day per week for 12 hours in a shift, they would be eligible for Personal/Carer’s leave equal to 10 days’ worth of 12 hours.
An employee’s Personal/Carer’s leave balance still carries over from year to year and is not paid out upon termination (unless a registered agreement or award stipulates otherwise).
The Federal Court did not address the accrual of annual leave in their decision or reasoning – no action is required with respect to annual leave.
What should your business do now?
The Australian Government and the Applicant in the case, Mondelez Australia Pty Ltd, have been granted leave from the High Court of Australia to appeal the Federal Court’s decision. Until the case is heard by the High Court and a decision is handed down, the Federal Court’s decision reflects the current state of the law on this issue.
Your business should review its payroll system to ensure Personal/Carer’s leave is being accrued in days, not hours.
If you need assistance navigating how this impacts your business, we can help you.