Last week it sounded like a great problem for next week; it’s now next week.
So what are your obligations when it comes to employees and our mini-lockdown, or “circuit breaker”, as Dan Andrews puts it?
From the onset, an employer does not have to pay an employee when the government makes an enforceable direction that prevents an employee from working, but there are options.
- working from home arrangements
- changing duties, hours of work or rosters
- accessing paid or unpaid leave
- stand down
For the purpose of this blog, we will assume you’re all over the working from home arrangements.
The ability to change duties, hours of work or rosters are subject to whether you are still on JobKeeper (qualifying employers), are a legacy employer or neither. Any changes should have been discussed with your employees, with certain provisions for qualifying and legacy employees allowing employers to direct employees to change.
As with the above, the ability to access paid or unpaid leave is subject to whether you are a qualifying, legacy or standard employer and any applicable awards. The options here include:
- taking accrued annual leave (including at half pay)
- taking any other paid leave (such as long service leave or paid leave available under an award, enterprise agreement or employment contract)
- directing employees to take accrued annual leave in certain circumstances
- taking any other paid leave by agreement between the employee and the employer.
An important note here, the ability to request employees take paid annual leave (as long as they keep a balance of at least two weeks) no longer applies, including at half pay. This was repealed 28 September 2020.
For those qualifying and legacy employers, the JobKeeper scheme gives some employers the ability to issue JobKeeper enabling provisions. These give employers more flexibility when it comes to the above.
Now to the pointy bit of this blog –
Once all other options have been considered, employers need to check whether they can stand down employees under the Fair Work Act provisions, under a JobKeeper enabling stand down direction or their applicable award.
The general provisions under the Fair Work Act allow employers to stand down an employee without pay on the back of a government forces lockdown. If you are considering going down this path, while it is relatively clear due to the mini-lockdown, we recommend jumping on here and making sure you dot and cross the specifics.
For reference and hopefully never use, employees cannot take sick and carer’s leave or compassionate leave during stand down but are entitled to be paid for public holidays.