By Bethany Silverman

Over the weekend, the New South Wales Government announced a lockdown as result of emerging COVID-19 cases.

From 6:00 pm on Saturday 26 June 2021 the residents of Greater Sydney, Blue Mountains, Central Coast and Wollongong must stay at home for a two-week lockdown period ending at 11:59 pm on Friday 9 July 2021.

Residents of the impacted areas may only leave home for a variety of reasons including, but not limited to, undertaking essential work where an employee cannot work from home.

The Public Health Orders do not define essential work, but rather list certain types of workplaces which must close. Businesses that are not listed amongst those which must close can continue to operate as per normal.

It is anticipated that businesses may be impacted in a variety of ways and the following options are available to you regarding the ongoing engagement of your employees:

1. An employee’s inability to work

The New South Wales Government and Department of Health are updating exposure sites regularly and notifying those who are casual or close contacts of a person with COVID-19.

In these circumstances employees may be required to self-isolate for a given period of time.

Where an employee is unable to work due to the directions of the Department of Health, the duration of their absence is considered an unpaid absence. A business may elect to continue paying an employee in this circumstance or allow an employee to utilise their paid leave entitlements (annual leave or long service leave) during this period.

2. Quietness of trade

Where there is slackness of trade or business due to the restrictions, a business may wish to cancel scheduled shifts of casual employees.

Alternatively, a business may wish to consult with permanent employees to determine whether any employee is prepared to utilise paid leave entitlements during this period. Where an employee refuses to take annual leave during this period, an employee has the right to continuing receiving wages as per normal during this period.

Some awards may provide that employees can be directed to take annual leave during periods of shut down. Employers should carefully consider the specific terms in any award, as notice requirements may apply.

The Fair Work Act 2009 (Cth) (FW Act) provides that award-free employees may be directed to take annual leave where that direction is reasonable. The current nature of the pandemic in the restricted areas may result in any such direction being considered reasonable in the circumstances. Specific advice should be taken if considering this option.

What about businesses that are directed to close?

Where a business is required to close, that is, it is required to completely shut for the lockdown period, businesses will be able to stand down employees where they are unable to work from home.

An employer can stand down an employee without pay where an employee cannot usefully be employed due to, but not limited to, a stoppage of work for any cause which the employer cannot reasonably be held responsible. Since businesses have been forced to close due to a Government directive, implementing a stand down under section 524 of the FW Act is lawful for employers provided the employee is not employed under an enterprise agreement or employment contract which provides for different stand down rights and obligations.

Where a section 524 stand down is implemented, employers should:

  • seek specific advice in all circumstances to ensure that the risks with such an approach are understood;
  • engage with impacted employees as soon as possible and provide employees with a reasonable opportunity to present ideas or proposals which may avoid the stand down;
  • confirm the stand down in writing;
  • maintain consistent contact with employees during the stand down period and provide updates and information which will assist with their ongoing understanding of the matter; and
  • the continuation, or cancelation, of a stand down should be confirmed in writing. 

Employees can access annual leave while stood down but cannot access personal leave.

The situation is currently evolving, and further relevant information will be provided when it becomes known.

If you have any questions about these restrictions and how they may affect your workplace, feel free to contact the team at HR Assured.

For HR Assured clients, contact our 24/7 Telephone Advisory Service.

Not an HR Assured client and need some advice? The team at HR Assured can support your business on a range of workplace matters. Contact us today to arrange a confidential, no-obligation chat.

Bethany Silverman is a qualified Senior Workplace Relations Consultant at FCB Group and HR Assured. She regularly provides advice to a wide range of businesses in respect of compliance with workplace laws and managing complex matters including disciplinary and performance management processes and terminations