WR - What you need to know!

To assist in the management of your staff, click on the below links to find helpful resources.

COVID Marshals

WHS obligations

Working from Home checklist for staff

Agreement to take Annual Leave

Agreement to reduce hours of work

Stand Down Checklist

Coronavirus standing down template letter

Tips for Managing Worker Stress from COVID-19

JobKeeper and Return to Work Premiums (SA Only)

Safe Work Australia - National guide for safe workplaces - COVID-19

The MTA has prepared an FAQ to try and answer your questions. If you can't find the answer below, please email wr@mtasant.com.au or call 8291 2000.


STAFF

  • Can I force my employees to be vaccinated?
  • What can I do with staff who refuse to get vaccinated, or refuse to provide evidence of vaccination?
  • For businesses who do not choose to have a vaccine mandate – how can I reasonably manage staff who refuse to work with an individual they either know or suspect to be unvaccinated?

CUSTOMERS/CLIENTS/CONTRACTORS

  • Can I force customers/clients/contractors to be vaccinated?

MANAGING STAFF WITH COVID

  • If a staff member is confirmed to have COVID, what leave can they take?
  • If a staff member is directed to quarantine by SA Health (but is not confirmed to have COVID), what leave can they take?
  • Are staff who contract COVID entitled to WorkCover?


STAFF

Can I force my employees to be vaccinated?

  • No individual can ever be “forced” to be vaccinated. A choice will always remain for that individual. However, in an increasing number of workplaces, that choice will be inconsistent with the safety obligations of the employer.
  • Generally, an employer can put in place a mandatory vaccination policy in line with its WHS obligations as a reasonably practicable means by which risks of illness to its workers and visitors to its workplace can be reduced. This is because “safety” is paramount.
  • If employees are all vaccinated (or willing to be vaccinated) there will likely be little opposition to a policy.
  • Enforcement issues will arise if employees refuse to be vaccinated. If that occurs, then consideration will need to be given to whether vaccination is a lawful and reasonable direction and/or an inherent requirement of that employee’s position.
  • While a vaccination requirement will be lawful, whether it is reasonable and can be enforced will need to take into account an individual employee’s circumstances (for example, the nature of the work, the level of risk of COVID transmission in the particular workplace, whether there are alternative options to reduce risks of COVID, any reasons why the employee does not wish to, or cannot, be vaccinated). As but one example, those members who have employees in public-facing roles ought to give careful consideration to mandating, as unvaccinated employees will be at a significantly increased risk of acquiring COVID after the borders re-open (and COVID is back in our community).
  • Before any new vaccination policy is introduced, an employer should consult with employees about the proposed change. This is particularly important for employees who are covered by a modern award or an enterprise agreement, which contain “significant change” consultation requirements. This requires that an employer discuss and provide information in writing to employees about the new policy, the likely effects on employees of the proposed policy, and steps that can be taken to avoid or reduce the impact of the changes on employees. Employees should be given an opportunity to provide feedback, and their feedback considered, before the policy is introduced.

  • What can I do with staff who refuse to get vaccinated, or refuse to provide evidence of vaccination?

  • If a mandatory vaccination policy is introduced, an employee can be required to provide proof of their vaccination status to their employer.
  • If an employee refuses to comply with the policy (or a direction to provide proof of vaccination), then disciplinary action could be taken (which could include termination of employment) for failure to comply with a lawful and reasonable direction.
  • An employer could agree to an employee taking a period of annual leave or unpaid leave until such time as they are able to comply with the policy, however, they do not have to.

  • For businesses who do not choose to have a vaccine mandate – how can I reasonably manage staff who refuse to work with an individual they either know or suspect to be unvaccinated?

  • An employer must comply with its WHS obligations to take all reasonably practicable steps to reduce the risk of illness in the workplace.
  • If an employer determines that it will not introduce a mandatory vaccination policy, they must ensure that other reasonable measures are put in place to reduce the risks of COVID transmission in the workplace. This could include enforcing social distancing, compulsory masks at all times, hand hygiene, and introducing workplace testing etc.
  • Ultimately, if an employer decides not to introduce a policy then an employee will be required to continue to undertake their work in the usual manner. I
  • An employee who believes that they are being put at risk by being required to work with an unvaccinated employee could potentially make a WHS complaint to their employer or to SafeWork SA, which would then need to be investigated and responded to.
  • An employee also has a right to cease work where they have a reasonable concern that continuing to work would expose them to a serious risk to their health and safety, because of an immediate or imminent exposure to a hazard – if the concern is only that the other employee is unvaccinated, it is unlikely the “immediate or imminent” threshold would be reached in order to justify any stop work.

  • CUSTOMERS/CLIENTS/CONTRACTORS

    Can I force customers/clients/contractors to be vaccinated?

    • As an occupier of private premises, a business may impose any requirements for entry that it wishes, including a requirement that visitors are vaccinated.
    • If such a requirement is imposed, any vaccination information obtained from a third party will be sensitive health information, which must be retained by the business must be kept in accordance with Privacy Act obligations.
    • If entry to the premises is refused because an individual is not vaccinated, there is the potential for that person to allege a breach of anti-discrimination legislation, if they are not vaccinated for a reason protected by anti-discrimination laws (eg. Medical or religious grounds).


    MANAGING STAFF WITH COVID

    If a staff member is confirmed to have COVID, what leave can they take?

  • If a staff member has a confirmed COVID-19 diagnosis and is not fit to attend work, they may utilise their accrued personal leave. If there is no personal leave available, then unpaid leave may be taken.

  • If a staff member is directed to quarantine by SA Health (but is not confirmed to have COVID), what leave can they take?

  • If an employee is directed to quarantine, then the employer may agree to them using their annual leave. Alternatively (and assuming the employee cannot work from home) they will need to take unpaid leave.

  • Are staff who contract COVID entitled to WorkCover?

  • Yes, if an employee contracts COVID-19 arising out of or in the course of their employment, there is the potential for the employee to claim workers compensation in respect of the illness. However, this is even more reason to consider requiring staff to be vaccinated, as the Government health advice is overwhelmingly to the effect that COVID symptoms are significantly reduced in severity when vaccinated. This means that time off and medical bills will very likely be significantly less (if a vaccinated worker contracts COVID at work).


  • CURRENT RESTRICTIONS

    1. What are the current travel restrictions?

    For current travel restrictions please refer to the following links below:

    SA - https://www.covid-19.sa.gov.au/restrictions-and-re...

    NT - https://coronavirus.nt.gov.au/travel/quarantine

    https://coronavirus.nt.gov.au/travel/quarantine/ho...

    Any person looking to travel to South Australia from interstate should also complete a cross border travel registration form, with further information on this via the following link: https://www.police.sa.gov.au/online-services/cross-border-travel-application.

    Those in the NT will need to fill out a border entry form which has to be done no more than 7 days before the date you will be entering the NT: https://forms.nt.gov.au/Produce/wizard/9ffc58df-b0a5-422e-86e5-f260522c072a/?prepared=true&logGuid=c103d0fb-ddde-49bd-9822-d90522f6163a.

    2. If somebody is returning from overseas or interstate and they are required to self-isolate or quarantine but they are not sick what do we pay them?

    As people would now be aware that they will need to self-isolate or quarantine if they return from overseas or there is a risk of needing to do so if they travel interstate then the default will be leave is unpaid.

    An employee can take annual or long service leave however if they so wish and where the travel was work related / at the direction of an employer then the employer will be required to pay the employee for the duration of their quarantine as normal.

    3. What are the current restrictions for businesses and activities?

    For current restrictions please refer to the following links below:

    SA

    https://www.covid-19.sa.gov.au/restrictions-and-re...

    https://www.covid-19.sa.gov.au/restrictions-and-re...

    https://www.covid-19.sa.gov.au/restrictions-and-re...

    NT

    https://coronavirus.nt.gov.au/business-and-work/bu...

    https://coronavirus.nt.gov.au/business-and-work/sa...

    https://coronavirus.nt.gov.au/business-and-work

    4. Do we need a COVID Safe Plan and QR Codes?

    South Australia

    In SA all business that conduct a defined public activity are required to have a COVID Safe Plan in order to trade as well as having QR Codes to assist with contact tracing.

    A defined public activity means:

    • onsite purchase and consumption of food or beverages (whether occurring in an indoor or outdoor area)
    • sport (including sports training), fitness or recreation activities
    • indoor public meetings
    • ceremonies
    • provision of personal care services
    • provision of public entertainment
    • provision of recreational transport
    • the operation of a nightclub
    • the operation of relevant licensed premises
    • the operation of a casino or gaming area
    • auctions and inspections of premises for the purpose of sale or rental of any property
    • driver instruction


    The provision of recreational transport includes those businesses who run tour bus companies.

    As of 14 December 2020, SA Health has also directed those businesses defined as “General Retail”, supermarkets and hardware stores to also have a COVID Safe Plan and QR Codes in place.

    The definition of “General Retail” has been given a broad definition and will include any business that has a shop front / front office and requires customers to be physically present on-site even if this isn’t often or for very long.

    To create a COVID Safe Plan an online form will need to be completed via the following link: https://www.covid-19.sa.gov.au/business-and-work/c...

    Once a Safe Plan has been completed, a QR Code will be emailed and this then needs to be put up in a suitable location and customers need to be asked to sign in via the code. Should a customer not be able to sign in via the QR Code due to not having a smartphone or they do not wish to then they can use a paper recording log which is available via this link: https://www.covid-19.sa.gov.au/__data/assets/pdf_f...

    Where a customer refuses to sign in via the QR Codes or manually then a business has the option to refuse them entry or service. Where a high risk of conflict is possible should refusal of entry or service be given then the person should be allowed to enter.

    In addition to customers any couriers, delivery drivers and staff also have to sign in via the QR Code or where not possible, via the paper recording log.

    A COVID Management Plan, approved by SA Health, will be required for:

    • a defined public activity where more than 1000 people are reasonably expected to be present at or participating in the activity
    • the onsite purchase and consumption of food or beverages at a place where the total number of persons present at the place for the purpose of the purchase and consumption of food or beverages is reasonably expected to exceed 1000 people
    • the operation of a nightclub
    • the operation of relevant licensed premises.
    • Additionally, any private gathering of more than 50 people must also have a COVID Safe Plan, Marshall, and have guests check in via the QR Codes.

    Northern Territory

    Businesses in the Northern Territory are required to have a COVID Safe Plan in place to demonstrate how they will meet the physical distancing recommendations and necessary hygiene practices.

    Businesses will be required to complete a Safety Plan Checklist, which can be completed by following this link: https://forms.nt.gov.au/Produce/wizard/0b08e5a0-0f...

    The Safety Plan checklist will form the basis of the COVID Safety Plan itself. This plan will have to be reviewed every six months.

    Any business that has a COVID-19 Safety Plan will also be required to appoint a COVID Safety Supervisor who serve to facilitate the implementation of their businesses COVID-19 Safety Plan and any directions given by the Chief Medical Officer.

    The Supervisor can be a person with authority such as an owner, occupier or person conducting the business or activity, or another person so appointed by someone in authority.

    The Supervisor must have the required skills and knowledge to act as such and can acquire this via in house training, relevant professional experience or by completing the NT Government’s free online training: https://nt.gov.au/learning/adult-education-and-tra...

    All businesses must now also have in place the Territory check In system to collect customer contact details, no matter how long they are there for. For further info on this system and how to get it in place please refer to the following link: https://coronavirus.nt.gov.au/business-and-work/th...

    Once the system is set up a QR Code should be received which a business can then be displayed.


    SOCIAL DISTANCING

    5. What is social distancing?

    Social distancing requires people where possible to keep 1.5 meters between themselves and others. Additionally, people should avoid non-essential travel and be aware of any restrictions on entering aged care homes to protect older Australians.

    6. An employee was on the same plane, bus, train, etc. as someone who has been diagnosed with Coronavirus; does this mean they must self-isolate?

    Whether or not they will have to be quarantined will likely depend on whether they have been in ‘direct contact’ with the person.

    This will in part be determined by the proximity that someone had to the person confirmed with the virus, that being if they were in the same seat row as him or her, the one in front or behind etc.

    They should contact the relevant health authority if they have not already been contacted by them.

    7. What may count as ‘direct contact’?

    Below is a definition for what may constitute as ‘close contact’:

    Close contact means greater than 15 minutes face-to-face or the sharing of a closed space for more than two hours with a confirmed case without recommended personal protective equipment (PPE) which is droplet and contact precautions for the definition of contact.

    Contact needs to have occurred during the period of 24 hours prior to the onset of symptoms in the confirmed case until the confirmed case is no longer considered infectious to be deemed close contact.

    Additionally, if someone with the virus has coughed on you, touched you, etc. then this would also constitute direct contact and the person should proceed to contact either their doctor or go to one of the testing facilities ASAP.

    8. One of my employee’s family members has been diagnosed with Coronavirus, do they have to self-isolate themselves?

    Not necessarily. It will come down to whether they have had direct contact and if they have, they should contact the relevant health authorities ASAP.

    9. Are masks required while working or when we go to a business?

    To check the current requirements on masks refer to the following links:

    SA

    https://www.covid-19.sa.gov.au/restrictions-and-responsibilities/faqs#masks

    NT

    https://coronavirus.nt.gov.au/stay-safe/slow-spread/information-about-face-masks

    Where social distancing is not possible in a public space, masks are recommended to be worn.


    Business Stand Down

    10. What is stand down?

    Under the Fair Work Act, an employer may stand down an employee when an employee cannot usefully be employed because of the following circumstances:

    (a) industrial action;

    (b) breakdown of machinery or equipment;

    (c) a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

    11. What is the difference between shut down, slow down, lockdown and stand down?

    Shut down is where the government uses legislative powers to compel the closure of certain individual businesses or categories of businesses.

    Slow down is where the business has slowed down due to reduced customers or need for the services, whether from the pandemic or otherwise.

    Lockdown is a final stage where all businesses other than essential services are shut down, and all residents are restricted to home other than to obtain essential supplies (i.e. groceries) as directed.

    Stand down is an industrial relations term, and refers to a closure of the business or part of a business for a period of time due to circumstances outside the employer’s control.

    12. What happens when business slows down?

    If business slows down due to the pandemic, businesses can consult with staff about other arrangements during this period, such as reduced hours, taking accrued paid leave, taking unpaid leave, or, if the impact is sufficiently significant, redundancies or stand down of individual employees may be considered.

    Any agreed reduction in hours or wages should be recorded in writing. Any combination of reduced hours or leave and taking accrued paid leave or unpaid leave may also be considered.

    Any reduction in hours due to a slowdown of business due to the pandemic should only be temporarily implemented during periods where a business can show there is a clear reduction in business due to the pandemic.

    A stand down should only be used where a business can clearly show that there is no reasonable work that can be undertaken by an employee due to the pandemic restrictions/impact.

    13. If we are forced to stand down employees, what do we have to pay our employees?

    In this event, the default position will be that the employee will not be given work and will not be required to be paid, but will have continuity of service (which means normal leave accruals will continue).

    They are also required to be paid for any public holidays which occur during stand down on days they would ordinarily have worked. If the employee has accrued annual or long service leave and wishes to take it they can do so.

    Employees could also look at potential subsidies available via Centrelink and should refer to the following link: https://www.covid-19.sa.gov.au/school-and-community/financial-support-for-individuals

    14. What do we need to do with a stand down?

    Communicate clearly with your employees, advising them that they will be stood down, and the reasons for the stand down. Confirmation of the stand down needs to be provided in writing.

    Please be advised that before an employee can be stood down you would have to clearly show that you have exhausted all other options e.g. reducing hours and don’t have the capacity to offer any work.

    Employers should ensure they continue to communicate with their employees during the stand down and advise of any change in the stand down period etc.

    15. Legal Counsel advice on Stand down (Q and A)

    Legal counsel was briefed to answer the following questions:

    Question relating to temporary closure for mandated sanitizing of the workplace

    If the relevant Health Departments orders the temporary closure of a business unit or the entire business because an employee (or employees) of an MTA member was diagnosed with the Coronavirus and the business was ordered to sanitize their business, could the MTA member stand down their employees without pay or would the MTA member need to pay ordinary wages to the fit and work-ready employees who cannot be usefully employed?

    Legal counsel response

    Yes, an employer may stand down its employees without pay (in accordance with s. 524(3) of the Fair Work Act) if they cannot usefully be employed because of a stoppage of work caused by the closure of business operations for a period to sanitize as required by an order of a relevant Federal or State government agency for which the employer could not reasonably be held responsible.

    Question relating to standing down where a business is subject to an enforceable government direction to close down

    If the State or Federal Government orders the ceasing of all work/trade activities due to the spread of the Coronavirus and MTA members would be compelled to close down their businesses, could an MTA member stand down its employees without pay when it closes its business?

    Legal counsel response

    Yes, an employer may stand down its employees without pay (in accordance with s 524(3) of the Fair Work Act) if they cannot usefully be employed because of a stoppage of work caused by the cessation of all work or trading activities ordered by the State or Federal Government due to the spread of the Coronavirus, for which the employer could not reasonably be held responsible.

    Question relating to implementing stand down – offer to take leave

    Before standing down an employee without pay pursuant to subsections 524 (1) (c ) and 524 (3) of the Fair Work Act at present (when Australia is experiencing the Coronavirus pandemic), is an employer obliged to offer to an employee the opportunity to take the employee’s accrued Annual Leave or Long Service Leave?

    Legal counsel response

    The better option is an employer is obliged to offer to an employee the opportunity to take some or all of the employee’s accrued Annual Leave or Long Service Leave before standing down an employee without pay pursuant to subsections 524 (1) (c ) and 524 (3) of the Fair Work Act. This is because it is only when that leave has been exhausted or declined to be used by the employee that it can accurately be said that the employee cannot be usefully employed because of a stoppage of work for a cause for which the employer cannot reasonably be held responsible.

    Question relating to implementing stand down – refusal to grant leave entitlements

    Can an employer refuse an employee’s request that their employer allows them to take their accrued Annual Leave or Long Service Leave before the employer stands them down without pay pursuant to subsections 524 (1) (c) and 524 (3) of the Fair Work Act at present (when Australia is experiencing the Coronavirus pandemic)?

    Legal counsel response

    The corollary of the question is that the better view is that an employer should not refuse an employee’s request that their employer allows them to take their accrued Annual Leave or Long Service Leave before the employer stands them down without pay pursuant to subsections 524 (1) (c) and 524 (3).

    Other issues raised with Legal counsel – onus of proving that there is a stoppage of work

    The onus of proving whether employees could not have been usefully employed because of a stoppage of work for any cause for which the employer could not reasonably be held responsible is on the employer as the party seeking to implement the stand down.

    Although the underlying cause of a likely stoppage of work is the Coronavirus outbreak but the direct causal link must be established that the statutory conditions giving rise to the right of an employer to stand down employees – that “because of” not just the underlying Coronavirus issue but also the immediate business or trading circumstances of the employer mean that particular employees cannot usefully be employed. It may be accepted (as it would be likely to be by the Commission) that the underlying cause of a likely stoppage of work is the Coronavirus outbreak. If there is work for them to do, despite the restrictions (e.g. social distancing) imposed as a result of the Coronavirus then they should be permitted to do that work and should not be stood down.

    Question relating to end of employment – redundancy situation

    Question relating to the situation where business owners themselves decide to close down

    Where an MTA member experiences a downturn in their business caused by the Coronavirus related changes in the marketplace and in consumer sentiments, and the MTA member decides to close down part of their business or their entire business before the State or Federal Government compels them to do so, would the MTA member need to comply with clause 119 - Redundancy Pay, of the Fair Work Act?

    Legal counsel response

    Yes, an employer would need to comply with s 119 Fair Work Act redundancy pay obligations IF it retrenches an employee (terminates their employment on the basis of redundancy – that is, because they no longer want anyone to do the job the employee was doing (permanently) because it has closed part or all of its business permanently.

    16. How are WH&S obligations impacted by the COVID-19 Pandemic?

    The National Cabinet has agreed to 10 ‘National COVID-19 safe workplace principles’ to underpin the development of further work health and safety (WHS) guidance on COVID-19.

    Safe Work Australia (SWA) will develop and endorse the guidance to help employers manage health and safety risks posed by COVID-19.

    The 10 principles on which the guidance will be based are:

    • All workers, regardless of their occupation or how they are engaged, have the right to a healthy and safe working environment.
    • The COVID-19 pandemic requires a uniquely focused approach to WHS as it applies to businesses, workers, and others in the workplace.
    • To keep our workplaces healthy and safe, businesses must, in consultation with workers and their representatives, assess the way they work to identify, understand and quantify risks and to implement and review control measures to address those risks.
    • As COVID-19 restrictions are gradually relaxed, businesses, workers, and other duty holders must work together to adapt and promote safe work practices, consistent with advice from health authorities, to ensure their workplaces are ready for the social distancing and exemplary hygiene measures that will be an important part of the transition.
    • Businesses and workers must actively control against the transmission of COVID-19 while at work, consistent with the latest advice from the Australian Health Protection Principal Committee (AHPPC), including considering the application of a hierarchy of appropriate controls where relevant.
    • Businesses and workers must prepare for the possibility that there will be cases of COVID-19 in the workplace and be ready to respond immediately, appropriately, effectively, and efficiently, and consistent with advice from health authorities.
    • Existing state and territory jurisdiction of WHS compliance and enforcement remains critical. While acknowledging individual variations across WHS laws mean approaches in different parts of the country may vary, to ensure business and worker confidence, a commitment to a consistent national approach is key, including a commitment to communicating what constitutes best practice in prevention, mitigation, and response to the risks presented by COVID-19.
    • SWA, through its tripartite membership, will provide a central hub of WHS guidance and tools that Australian workplaces can use to successfully form the basis of their management of health and safety risks posed by COVID-19.
    • States and Territories ultimately have the role of providing advice, education, compliance, and enforcement of WHS and will leverage the use of the SWA central hub in fulfilling their statutory functions.
    • The work of the National COVID-19 Coordination Commission will complement the work of SWA, jurisdictions, and health authorities to support industries more broadly to respond to the COVID-19 pandemic appropriately, effectively, and safely.