4 insights into what all employers must know about the COVID-19 pandemic

Everything we knew about the rules of running a business with employees has turned upside down in the past 3 months. In the good old days of 2019, the only concern was that the actions put in place were fit for the specific organisation’s characteristics and circumstances (which I am not saying was easy but at least it followed longer-standing principles and regulations).

Employers now have to manoeuvre through changes that appear on a daily basis, adhoc employment interpretations and advice from multiple sources that has created some confusion in the everyday life of business.

For those engaged in the professional services industry, giving advice and direction to clients as well as their own staff, the need for keeping track of what is happening by interpreting and understanding the changes is paramount.

Now as daunting as all this sounds, or as bad as your experience might have been so far let me reassure you that the complexities of what is happening now and into the future can and will be simplified – darkness before the dawn as the saying goes.

The information overload is thankfully in written form on credible sites that allows practitioners to download and interpret and make sense of what are the requirements and procedures to guide us.

If you are still in the process of adapting to the current situation or haven’t yet checked whether what you have or want to implement is correct, so as to avoid running afoul of the employment law here are 4 insights into what all businesses want to and must know:

1. What influences your adaptability?

The primary influencer of what you can and can’t do to adapt your business remains steadfastly under Australian employment law. The types of variations you want or need to introduce will be based on for example the industry or the type of business that you have. Your options and availability for change will also vary with the level of co-operation you can achieve with your employees.

2. Which awards have changed significantly?

Three awards have seen significant changes to offer the greatest flexibility to employers:

• Clerks private sector award
• Hospitality industry award
• Restaurant employees award

The reason why these awards have seen the biggest changes is that a few Employer Associations and Unions acknowledged the effects the COVID-19 was having in particular industries in the early stages. These parties reached agreement and submitted applications to the Fair Work Commission who then varied these awards to include greater flexibility provisions.

This is not to say other awards haven’t changed, a further 103 awards have also been varied so far, but not to the same level or effect as the three highlighted above. Those awards now have provision for Pandemic Leave and the taking of Annual Leave at half pay.

3. Is that Fair that those 3 awards have changed and the one that applies to my business has not?

To have a level playing field for all, the Fair Work Act has been varied to include terms for the Corona Virus Economic Response Package.

The provisions allow employers who qualify for the JobKeeper Scheme to introduce stand down directions relating to:

• Employees’ duties to be performed
• The location of work
• Hours of work
• Taking of annual leave

The employer is still required to satisfy the employees wage conditions with a minimum payment guarantee or an hourly rate of pay guarantee.

These temporary changes were made to assist Australian people to keep their jobs and where possible, remain productively employed.

4. What are the requirements that I have to fulfil if my employees are working from home? 

The most important things you must ensure for employees are:

• The employee has to have a safe stand-alone computer that won’t have viruses that could infect company or client files that employees are being given access to.
• They must have internet capability to perform their work
• Employees should be supplied with Time Sheets to record their working hours and the hours that the work can be performed between.
• Employees cannot work Overtime without the employer’s authority.
• Employees need to be given a worksheet that sets out the duties and functions that they must fulfil in the allocated times. These will be checked by the employer to ascertain if working from home is effective or ineffective
• Access to company files needed for their work to be completed will be determined by the employer and additional resources considered upon request of the employee.
• If the employee is required to use a mobile phone then a log sheet must be kept detailing time, duration of call, who the call was made to, what the call was about and what the outcome of the call achieved. The employer should reimburse the employee for all costs associated with the use of the employees’ mobile phone.
• If a work phone is already available to the employee, the same details as to a log should be completed.
• The employer’s Duty of Care to its employees is to provide a safe place of work. Given that the COVID-19 has restrictions it is advised that the employer receives a letter from the employee stating that their work area chosen is safe and free of impediments in performing their duties.
• The employees that are required to work from home must have a safe work email address which can be provided by the employer and that all communication of that email has a copy forwarded to the employer.

After fulfilling these as an employer your employees should be good to start work. Should they fail to complete their duties or follow agreed requirements such as filling in timesheets you are allowed to take further disciplinary actions provided under either the award or the Fair Work Act or have them return to work or where available introduce stand down provisions.

As confusing as the changes and requirements are, they have all been introduced to help businesses keep running whilst remaining fair to their employees.

IRAS will be running a complimentary webinar at 11am on the 30th April 2020 to go deeper into the details of these areas and allow firms to ask their own questions. We have also opened up a large bank of resources for the current situation on our website and our dedicated advisors are answering questions over the phone to support firms getting on track and getting it right.

After recognising the core changes that are available to businesses employers should co-operate with their employees to achieve an agreement that is mutually understood and accepted regarding employees’ roles in the continuation of the business and employment into the future.