Obviously many businesses are suffering now due to the current crisis and the economic downturn which is resulting from it. Many in business (and employees too, obviously) are now wondering what they do with staff now that the business is either closed or suffer greatly reduced turnover.
This vexed question illustrates how the law as it already exists, is often not equipped at least initially to answer many of the questions which are arising.
For example, section 524 of the Fair Work Act allows a business to implement stand downs of employees where the circumstances leading to the stand downs are beyond the control of the business and where the employees ‘cannot usefully be employed’ – meaning that there is no work for the employee to do, or at least, no useful work.
The question, once a ‘valid’ stand down has been created, is whether or not the business needs to pay the employees for the period of the stand down. Though it is a little uncertain and it hasn’t been tested yet in a Court or the Fair Work Commission, it seems that if the business is subject to a government directed shutdown, the employer is not required to pay the employee whereas if the shutdown or stand down is made in the discretion of the employer, there is an obligation to pay.
In the case of a shutdown directed by the government, the employer may choose to pay the employees annual leave payments and or sick leave and or long service leave payments, to ameliorate the effects of having no pay for the stand down period but the employer is not obliged to do so. This exemplifies the importance of open honest and transparent communication between the employee and employer through the process, as if such an agreement can be reached then it may be the best outcome in a bad situation, all round. Of course, this all applies to permanent employees rather than casual employees who may just be given no shifts and thus are not paid as a result.
As last resorts, the business may need to consider redundancies as a result. The three elements for a genuine redundancy, and thus a redundancy which can avoid an unfair dismissal claim, are one, that the job is no longer being performed by anyone due to changes in the operations of the business, two that the employee is genuinely considered for redeployment elsewhere in the ‘enterpise or associated enterprise’ and finally that the employer has consulted with the employee prior to the decision being definitively made to make the employee redundant. It is submitted by this author that redundancy is a last resort option for the business, in summary because redundancy is permanent and nobody currently can even make an estimate as to when these current issues are going to end. Once the employee has left the employment, it often just doesn’t happen for that employee to go back for a multitude of reasons.
Of course, it may be that an opportunity presents itself for the business to ‘get rid of some dead wood’ for want of a better way to put it, in the sense that the business may see it as chance to push out some under performing staff or staff who have committed some misconduct that otherwise may not have given rise to a valid reason to dismiss. What an employer can do it make the role of the relevant employee redundant and get rid of them that way. Now for not one second is this author saying that it legally justifiable but if the employer complies with the three elements of a genuine redundancy in respect of that employee, then the business may have some measure of protection.
The Fair Work Commission has very recently announced plans to give unpaid “pandemic leave” and more annual leave at half pay to millions of workers.
The Commission has recently found gaps in current laws that meant some employees did not have a legal entitlement to self-isolate for two weeks if their employers did not give them consent.
The employee may be placed in the serious position of either contravening public health directions or guidelines, or placing their employment in jeopardy.
In particular, the Commission said it was concerned for employees who felt physically fine, but had to isolate because they had come into contact with a confirmed case of COVID-19. To rectify the situation, the Commission has proposed changing 103 of the 122 industrial awards.
The proposal includes two weeks of unpaid pandemic leave accessible to all workers, whether full-time, part-time or casual. Only people required to isolate by the government or on medical advice would be able to access it.
The commission has also proposed allowing businesses to offer their workers twice their annual leave at half the regular rate of pay.
The above is just a snapshot of the current issues in the crisis, in the employment sphere. Obviously the current crisis is unprecedented and so many questions remain in this moving feast of an area. Stay tuned for further as time goes on.