WR - What you need to know!

Latest:

SA TO CLOSE ITS BORDERS TO GREATER BRISBANE FROM 4PM TODAY (29/3/21)

South Australia has declared the Greater Brisbane area (which includes Logan, Moreton Bay, Ipswich and Redlands) a COVID hotspot and will impose a hard-border shutdown from 4pm today, after cases of the highly infectious UK strain of COVID were detected in Brisbane.

SA Health are currently advising that:

  • Anyone who has visited the locations listed on the Queensland Health website under the heading "Casual contacts – get tested immediately and quarantine until you get a negative result" at the specified dates/times should get tested immediately and self-isolate until you receive a negative result. You should also get tested again on day 5 and day 13. There is no need to self-isolate after receiving a negative COVID-19 result in the first test (unless you have symptoms).
  • Anyone who has visited Brisbane City Council or Moreton Bay Region Local Government Area since 11 March should get tested immediately and self-isolate until they receive a negative result. You should also get tested again on day five and day 13. There is no need to self-isolate after receiving a negative COVID-19 result in the first test (unless you have symptoms).

After 4pm today only SA residents, essential workers and people relocating to SA will be allowed in and must isolate for 14 days, and get a test on days one, five and 13 of isolation.

If you have any questions after reading the above information, please contact the Workplace Relations Team on 8291 2000 or via email at wr@mtasant.com.au.


The Federal Government have implemented a range of changes in order to try to slow the outbreak of COVID-19 and stay ahead of the curve. Click here to download an employer guide to help you manage and protect your business, your staff and your customers.

To assist management of you your staff, click on the below links.

JobKeeper FAQ

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 call 8291 2000.

Click here for Current Restrictions

Click here for Social Distancing and Self Isolation

Click here for Business Stand Down

CURRENT RESTRICTIONS

1. What are the current travel restrictions?

*Please note the below information is current as of 12 January 2021. For the most up to date travel restriction information, please follow the following links:

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

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

South Australia:

Currently travellers from the NT, VIC, TAS, ACT and WA are able to enter into SA directly without any restrictions being placed on them.

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 entering SA from NSW or QLD however will have to check what restrictions are in place as a number have been implemented.

NSW

Effective from 12:01am on the 1 January 2021 anyone who has been in NSW over the previous 14 days will not be allowed entry into SA.

QLD

Effective from 12:01am on the 9 January 2021 anyone who has travelled to SA from the Greater Brisbane region will be required to self-quarantine for a period of 14 days, that being those who travelled from the following Local Government Areas:

  • Brisbane
  • Ipswich
  • Logan
  • Moreton Bay
  • Red Lands

In addition to needing to quarantine, there is also the requirement to be tested on day 1, 5 and 12 of the quarantine period.

Exemptions

There are potential exemptions to the need to quarantine or not being able to travel to SA where someone can show that they fit into one of the essential traveller categories, which includes but is not limited to things as urgent medical treatment, compassionate grounds, health care workers etc.

Additionally a traveller from one of the designated low community transmission zones can also travel through NSW and QLD into SA provided that they do the following:

  • Do not stop over in the Greater Sydney or Greater Brisbane areas
  • Wear a face mask for the entirety of the time they come into contact with the public and can’t socially distance during their journey; and
  • Take the most direct route and only stop for respite and essential services.

Those travelling via plane from low community transmission zones are permitted to travel through Sydney and Brisbane airport provided that a mask is worn during this period and they are not in transit for longer than 2 hours (including time on the plane).

Cross Border Community Members

People who reside within 100km of the NSW/SA border and live in NSW can upon application travel anywhere within SA. They must be able to demonstrate however that they have been within the 100km zone over the previous 14 days and have not travelled elsewhere in NSW.

If someone resides in SA, then they can travel into NSW via application provided it is no further than 100km into the state. Only those approved Cross Border Community Members can travel back into SA without having to quarantine.

A Cross Border Community Member is only required to show proof of a COVID test or result within the last 7 days.

Relocation

Where someone is looking to enter SA from a high community-transmission zone for the purposes of relocation this can only be done once and evidence will be required. A person will also be required to quarantine for a period of 14 days not counting the time of arrival.

SA residents returning from NSW and QLD

SA residents are permitted to travel back into SA and will have to satisfy an authorised officer that:

  • they ordinarily reside in SA;
  • the purpose of returning is to return to their place of residence; and
  • they have previously not entered SA for the above reason.

From the date of arrival however the person/s arriving will have to reside and remain, quarantined and segregated form other persons for a period of 14 days.

Overseas Travel

All people entering South Australia from overseas (excluding those travelling directly from New Zealand who have not been in another overseas jurisdiction within the last 14 days) will be required to quarantine for at least 14 days in an SA Health approved-medi hotel under the supervision and direction of the Department of Health.

Those who refuse to undertake a COVID test will also have to remain in quarantine for an additional 10 days and includes those persons quarantining with them.

The Federal Government has issued a complete travel ban on travellers exiting Australia. Only limited exceptions to the travel ban will apply, including those involved in aid work in the Pacific, compassionate travel, and essential travel for employment.

Northern Territory:

Currently travellers from the SA, TAS, ACT, VIC, QLD and WA are able to enter into the NT directly without any restrictions being placed on them.

Travellers from designated hotspots, which is currently Greater Sydney, the Central Coast and Wollongong areas who are not granted an exemption, those who were in a hotspot in the last 14 days and those returning from overseas, will all be required to undertake mandatory supervised quarantine for 14 days at their own cost.

If someone spent time in a hotspot but then spent time after in an area not designated as a hotspot that time will be deducted from the 14 days required to be quarantined in the NT.

To find the current designated hotspot areas please refer to the following link: https://www.google.com/maps/d/viewer?mid=1FrtL9mdMHjZ3YNGkh0kkVmHVgqir4qx9&ll=-33.9379320547799%2C146.89724293666077&z=7

Border Entry Process

Anyone who is seeking to enter the NT will be required 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.

Those who would ordinarily have to quarantine may not have to provided they are given an exemption. Those people who can apply for an exemption include but are not limited to, Members of the Australian Defence Force, Transport Drivers, those doing critical or urgent maintenance of power, water and communications and necessary health care workers.

Anyone seeking to get an exemption will be required to fill out an online application for exemption as well as a border entry form. Where an employer is seeking to get exemptions for its employees they will additionally have to complete a COVID-19 management plan.

What to do if an area is declared a hotspot after someone has travelled through it

If an area is designated as a hotspot after someone has departed to that area but before arriving back in the NT, then they will be place in mandatory supervised quarantine.

If someone has been in a declared COVID hotspot then within 14 days of arrival in the NT someone must:

  • Contact the COVID hotline and identify themselves as a person who had been in the hotspot area that has been declared as such since they arrived in the NT;
  • I directed to then must submit a COVID test or assessment; and
  • Practice physical distancing until 14 days has elapsed since arrival in the NT.

Overseas Arrivals

All people entering Australia from overseas, except those from New Zealand (provided they have not been in a hotspot in the 14 days prior to arriving) will be required to quarantine for at least 14 days under the supervision and direction of the Department of Health.

The Federal Government has issued a complete travel ban on travellers exiting Australia. Only limited exceptions to the travel ban will apply, including those involved in aid work in the Pacific, compassionate travel, and essential travel for employment.

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 they would now be aware that they will need to self-isolate or quarantine, unless the travel is work-related, the employee will need to take annual or long service leave or unpaid pandemic leave.

3. What are the current restrictions?

*Please note the below information is current as of 21 December 2020. For the most up to date travel restriction information please follow the following links:

SA - 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/roadmap-new-normal#/...

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

South Australia

There is currently a density requirement in place for any defined public activity with the total number of people at a place not being allowed to exceed 1 person per 2 square metres.

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
  • Private functions
  • 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 (within the meaning of the Gaming Machines Act 1992)
  • Auctions and inspections of premises for the purpose of sale or rental of any property
  • Driver instruction
  • An assembly within the meaning of the Public Assemblies Act 1972
  • The provision of health care, residential care, disability support or aged care services.

In addition to the above, the following additional restrictions on gatherings apply:

  • A cap of 50 for gatherings in private homes (including the occupants)
  • Private functions including funerals, weddings and church services – Max of 200 people

The total number of people at private functions also cannot exceed 1 person per 2 square metres and the same rule applies to hospitality venues.

Entertainment venues such as cinemas, theatre or other live performance venues with fixed seating can have up to 75% capacity if patrons are required to wear masks. Where this is no requirement to wear masks then a max capacity of 50% only is allowed.

Generally, masks are not mandatory, although they are encouraged out in public where proper social distancing is not possible. Care providers and those who enter the premises e.g. visitors, contractors, other employees etc. must wear masks at all times however when they are in the physical presence of another person, unless an exemption applies.

Physical distancing and social distancing principles will still apply, mainly that people should attempt to stay at least 1.5 meters from each other. This however does not apply to people who live together are family or friends, or people who regularly associate with each other.

Business should also be aware that they are prohibited from having any communal food or beverage services at their premises e.g. buffets, communal water dispensers etc.

Northern Territory

The NT has currently reached stage 3 of their recovery roadmap and can now:

  • Operate all licensed gaming activities including a TAB.
  • Resume officiating, participating and supporting the playing of team sports such as football, basketball, soccer and netball.
  • Attend any cinema or theatre, concert hall, music hall, dance hall, nightclub or any other similar entertainment venue in approved configuration.
  • Attend an amusement venue.
  • Attend a bar without food being consumed.
  • Operate and access all previously restricted services at a place that provides beauty therapy and/or cosmetic services including facial care.
  • Operate and access all previously restricted services at a place that provides tattooing or body art such as branding and piercing.
  • Attend an amusement park, community centre, recreation centre or play centre.
  • Attend an arena, stadium, sporting facility including community and sporting competitions with spectators in approved seating configuration. However, if above 500 people the event requires a separately approved COVID-19 Safety Plan.
  • All businesses, facilities and services previously restricted can now resume ensuring adherence to key principles.

Currently restrictions are in place for public events, which are events or gatherings that are ticketed to open to the public at either a private or public place.

Requirements vary depending on the size of the event as seen below:

Less than 100 people:

Events with less than 100 people do not require completion of a checklist or safety plan, however the physical distancing and hygiene principles should still be considered and implemented.

100 – 500 people:

For events with 100-500 people a COVID-19 safety checklist must be completed.

More than 500 people:

For events with 100-500 people a COVID-19 safety checklist must be completed and also be granted approval from the Chief Health Officer.

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 the 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/create-a-covid-safe-plan.

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 smart phone 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_file/0011/209594/Contact-Tracing-Record-Attendance-at-public-activities.pdf.

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.

The following businesses will also have to keep contact tracing records (that being the time and date of the activity, the name of the person (unless they refuse) and a contact phone number or email (again unless they refuse:

  • Gaming Machine venues
  • indoor fitness classes
  • indoor public meetings
  • personal care services, ceremonies
  • weddings (including wedding ceremonies and receptions)
  • funeral services (including a wake)
  • auctions and inspections of premises for the purpose of sale or rental
  • provision of recreational transport and
  • driver instruction.

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/0b08e5a0-0fa4-4ed8-8978-8f77e288fe85/?ChecklistType=general&prepared=true&logGuid=369b7aa8-6a87-4175-af1a-f5937778a2b0

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-training/free-training-courses

The following businesses will also be required to keep records of those who attend their business premises:

  • An Agency of the Northern Territory Government
  • Schools, universities and educational institutions
  • A child care facility or indoor play centre
  • A hospital
  • Health premises including medical clinics, dentists, optometrists, pharmacies, physiotherapy clinics
  • Disability residential facilities
  • A prison, correctional centre, or youth detention centre or other place of custody or detention
  • A hotel, motel, hostel or shelter
  • Restaurants, bars, cafes and businesses that sell food or beverages to the public for consumption on its premises or in an area adjacent to its premises.
  • Cinemas, theatre, concert hall, nightclub or any other designated entertainment venue
  • Designated Entertainment venues including video game arcade, a ten pin bowling centre, a children’s entertainment venue, a trampoline centre, an escape room, amusement park or a flight simulator
  • Beauty therapists, hairdressers, tattoo and nail parlours
  • Tourism operators including boat and bus tours
  • Places that provide yoga, pilates, massages or wellness services
  • Gymnasium, indoor community centre
  • Public swimming pool or bathhouse
  • Art galleries, libraries, community organisations
  • Religious worship places
  • Casinos
  • TABs and the like
  • Strip club and any place that sells admission to or provides services involving participation in sexual activity
  • A contact number, email address, address or any other means to be able to contact the member of the public

Business required to collect customer contact details will need to ensure they keep the following information:

  • Date and time of entry into the business.

How a business choses to collect this information is up to them, however the NT Government has recommended using a QR Code.

NT Health should have emailed the QR Code to all organisations with a COVID-19 Safety Plan. Those who did not receive one and are required to take contact details or who want to have one in place regardless can get one by registering to use The Territory Check In app by completing an online form. This online form can be accessed via the following link: https://forms.nt.gov.au/Produce/wizard/a52910c1-eac4-40e2-b573-76c8a1117057/?prepared=true&logGuid=1f38c7ed-ff20-45b6-91e7-4c964a6182f3

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.

In South Australia there is also a direction for a maximum of 1 person per 2 square meters indoors.

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?

No, not necessarily. Whether or not they will have to be quarantined depends 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.

7. What may count as ‘direct contact’?

Below is a definition for on 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 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. Again, it will come down to whether they have had direct contact and if they have, they should go to see their doctor ASAP.

Business Stand Down

9. What is stand down?

Under the Fair Work Act, an employer may stand down an employee during 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.

10. What is the difference between shut down, slow down, lock down 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 business has slowed down due to reduced customers or need for the services, whether from the pandemic or otherwise.

Lock down is a final stage we have seen overseas, where all businesses other than absolutely essential services are shut down, and all residents are restricted to home other than to obtain essential supplies (ie 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.

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

In this event the default positon 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 wish to take it they can do so. Payments on stand down may be subject to the Job Keeper program which is described elsewhere on this site.

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.

13. What do we need to do with stand down?

Communicate clearly with your employees, advising them that they will be stood down, and the reasons for the stand down. Use the MTA template if necessary.

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.

14. 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 sanitising 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 a MTA member was diagnosed with the Coronavirus and the business was ordered to sanitise 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 sanitise 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 stand 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 a MTA member stand down its employees without pay when it closes its business?

Legal counsel response to question

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 allow 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 allow 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 a 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.

15. What are the Job Keeper changes to the Fair Work Act?

To implement to JobKeeper scheme and provide further flexibility and support to businesses, additional legislation has been passed making changes to a number of other pieces of legislation, particularly the Fair Work Act.

The Parliament has made the following changes to the Fair Work Act, which will only apply to employers who qualify for the JobKeeper scheme:

  • If the JobKeeper payment is payable to an employee, the employer must pay the greater of the JobKeeper payment, or the amount that is due to the employee for work performed during that period.
  • An employer can direct an employee to work reduced days or hours (including a full stand down) if they cannot be usefully employed due to the COVID-19 pandemic.
  • An employer can direct an employee to complete alternative duties, or work at a different location, provided such duties or location are suitable and not unreasonable.
  • If either of the above two directions apply, then the employer must pay an hourly rate that is equivalent to the employee’s ordinary base rate of pay, unless they are performing higher duties, in which case the higher hourly rate must be paid.
  • An employer can ask the employee to work different days or times than ordinary, and the employee must consider and not unreasonably refuse the request.
  • An employer can ask the employee to take paid annual leave (provide it leaves a balance of not less than 2 weeks), and the employee must consider and not unreasonably refuse the request.
  • The employer and employee may agree to take twice as much annual leave at half rate of pay.
  • During any reduced hours or annual leave directed under these provisions, leave entitlements will accrue based on normal hours, and these periods will count as service.
  • If an employee requests to engage in reasonable secondary employment, training or professional development during any stand down, the employer must consider and not unreasonable refuse the request.

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:

  1. All workers, regardless of their occupation or how they are engaged, have the right to a healthy and safe working environment.
  2. The COVID-19 pandemic requires a uniquely focused approach to WHS as it applies to businesses, workers and others in the workplace.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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

17. JobKeeper and Return to Work Premiums (SA Only)

We have received confirmation that the JobKeeper wage subsidy payments will not be considered remuneration for calculation of Return to Work (RTW) premiums for 2020-21, the same as for state Payroll Tax.

You can still choose to have your premiums based on your 2019-20 actual remuneration, (with no end of year adjustment), or an estimate of your 2020-21 remuneration (with an end of year adjustment when actual remuneration is known).

Example 1:

Business 'A' pays its workers $500,000 total remuneration in 2019-20, including $100,000 of JobKeeper payments from April to June 2020. Business 'A' chooses the actual remuneration option in July when completing their remuneration return. They should declare $400,000 total remuneration ($500,000-$100,000).

Example 2:

Business 'B' expects to pay its workers $500,000 for 2020-21, and expects to receive $80,000 in JobKeeper payments from July to September 2020. Business 'B' chooses the estimates remuneration option in July when completing their remuneration return. They should estimate $420,000 total remuneration ($500,000-$80,000).

Remuneration returns for 2020-21 premium are due between 2 July and 15 September 2020.