McDonald Murholme understands that this is a difficult time for many people who are concerned about their employment as well as their health.
Any person whose job has been affected by COVID-19, even if it’s a job that was promised but never commenced, is highly encouraged to call us on (03) 9650 4555 for a confidential, no-obligation discussion about their legal rights. Alternatively, you can send us an email at firstname.lastname@example.org.
Many companies are at risk of suffering economic loss as a result of COVID-19 and this has a flow on effect to those employed by these companies. An increasing number of companies are choosing to stand down employees without pay, force leave, implement redundancies or rescind job offers. Despite difficult circumstances you still have legal rights and employers need to adhere to their legal obligations even when under financial pressure.
There are many cases of people who have accepted new offers of employment and given notice to their employers, only for the job offer to be rescinded due to COVID-19 epidemic. Employees have protections in many instances – it is worthwhile enquiring whether you are protected.
For an employer to make a position redundant, the position must be genuinely redundant. Failure of the position being genuinely redundant can result in making you eligible to lodge either an Unfair Dismissal Claim or General Protections Claim in the Fair Work Commission.
At this stage, there are no new laws regarding redundancies. However, it is still an employer’s responsibility to take the appropriate steps to minimise any loss for their employees and ensure all redundancies are genuine.
Unfortunately, redundancy entitlements under the National Employment Standards do not apply to small businesses workers. This means that employees who work for a company with less than 15 employees and have no other contractual rights to redundancy payments are only permitted to notice entitlements. Additionally, employees who work on a genuine casual basis are not eligible to any entitlements.
Employers are entitled to direct employees to take annual leave where the request is reasonable. This is usually in situations where an employee has accrued excessive annual leave or when an employer’s operations are temporarily shut down.
However, an employer and employee can agree for the employee to take annual leave at any time. Accordingly, if an employer is considering redundancies it can offer annual leave as an alternative and an employee may choose to take leave to avoid redundancy.
It is illegal for an employer to change the terms of an employment contract without consent from the employee. Specifically, it is an employer’s obligation to consult their employees before altering any essential terms which include hours of work, rate of pay or employment benefits.
Employers should consult their employees on the provisional changes that they may wish to make, invite employees to give additional recommendations and consider the impacts any changes may make to their employee’s wellbeing.
Due to the severity of COVID-19 and potential liquidation of many businesses, employers and employees may consider temporary changes to employment agreements. Such an arrangement would need to be in writing and agreed upon by both parties and not provide the employee with conditions less favourable than their minimum entitlements. These could include temporary changes to an individual’s rate of pay, employment benefits or hours of work which may make a difference to a company’s overall survival during this period.
Many companies are required to make structural changes and if reasonable redeployment within the company is unavailable, businesses should consider offering redeployment to alternative positions (unrelated to their current role) or redeployment to other companies with the capacity to take on new employees.
Under the Fair Work Act 2009 (Cth) employers have the right to stand down employees without pay if there is a stoppage of work beyond the employer’s control. It is an essential part of stand downs that the decision is a unilateral one of an employer to withhold work and payment, regardless if the employee is still willing to work.
Stand downs do not extend to the situations where the business is quiet or there is not enough work. Employees can be stood down for the period of time while the business is dealing with the issue and the employee cannot be usefully employed elsewhere within the organisation or associated entities.
There is no right to stand down an employee if there is work that the employee can do that is within the terms of the employee’s contract of employment. If there are other activities that can still be done without breaching the employee’s contract, then an employer may not have the right to stand down an employee. The work does not need to be work that the employee will usually carry out however; it cannot be beyond the scope of their employment agreement.
If an employee has a stand down clause within their Enterprise Bargaining Agreement or contract of employment, employers are obliged to abide by those terms.
Alternatively, redeployment to other companies may be provided as an option for employees to elect. This involves the relevant negotiations between companies to redeploy individuals to areas that are in high demand.
Your employer has an overarching obligation to provide a safe working environment to their employees, and this obligation continues when employees work from home.
Normal workers compensation laws should cover work from home arrangements, so employees and employers can be comforted that the normal protections are in place. That being said, liability will increase with reduced supervision, so employers should do what they can to prevent issues but actively engaging with employees about these new issues.
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