By Amanda Curatore

Despite Victoria’s effort to curb the rising number of coronavirus cases by reintroducing stage 3 restrictions, coronavirus is currently winning the fight and forcing Victoria to take more extreme measures to control this pandemic.

On Sunday 2 August 2020, Victorian Premier Daniel Andrews declared a State of Disaster across Victoria. This means police and emergency services have broader powers to enforce coronavirus restrictions. Such enforcement powers are necessary given that Andrews announced stage 4 lockdown restrictions for metropolitan Melbourne. Stage 4 restrictions will run from 2 August and will last for six weeks until 13 September 2020.

The information provided in this article is current at the date of publication, however, the situation is rapidly evolving, businesses are strongly encouraged to monitor the Victorian Department of Health’s advice and our associated resources.

What are the latest restrictions?

Under stage 4 restrictions, stay at home orders remain in place, however, are now tighter and stricter. This means that individuals must stay home and can only leave home if any of the following four reasons apply:

  1. Shopping for essential food and supplies (only one person per household can shop at any one time);
  2. Care and caregiving;
  3. Exercise (limited to one hour per day); and
  4. Work (rules around workplaces have changed and will be discussed below).

In addition to the above, individuals can only travel within 5 kilometres from their home (unless an exemption applies) and there is now a curfew on Melbourne residents meaning people cannot leave their home between the hours of 8pm and 5am.

Workplace restrictions

The Victorian Government announced that stage 4 restrictions will affect some businesses and is dependent on which categories they fall into:

Group 1: Businesses that will remain open and unaffected:

The following stores will remain open subject to social distancing rules:

  • supermarkets;
  • grocery stores;
  • bottle shops;
  • pharmacies;
  • petrol stations;
  • banks;
  • post offices;
  • news agencies; and
  • local bakers and butchers.

Group 2: Businesses that will completely close from 11:59pm Wednesday 5 August 2020:

For the next six weeks until 13 September 2020, the following businesses are restricted from trading:

  • food courts (except for take away);
  • real estate auctions (conducted remotely) and open homes (by appointment only);
  • personal services (beauty, nail, tanning, waxing and tattoo salons);
  • spa and massage parlours, excluding health-related services such as physiotherapy;
  • amusement parks, arcades and play centres (indoor and outdoor);
  • strip clubs, brothels and sex on premises venues;
  • galleries, national institutions, historic sites and museums;
  • health clubs, fitness centres, yoga, barre and spin facilities, saunas, bathhouses and wellness centres, and swimming pools;
  • community facilities such as community halls, libraries and youth centres, RSL and PCYC;
  • gaming and gambling venues;
  • admin; and
  • retail stores.

Group 3: Businesses that must operate at reduced capacity:

From Thursday 6 August 2020, the following businesses will need to dramatically reduce their workforces:

  • abattoirs will be limited to two-thirds of their normal workforce;
  • warehouses will be limited to two-thirds of their normal workforce;
  • major private construction projects will be limited to only 25% of their normal workforce; and
  • small constructions such as home renovations or new homes will be limited to only five people onsite.

A full list of the restrictions on Victorian businesses can be found here

What does this mean for workplaces?

Where your business has been identified as a business falling into Group 2, that is, you are required to completely shut down for the six-week lockdown period, then in our view, you will be able to stand down your employees where they are unable to work from home.

How do you enact a stand down?

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 Fair Work Act (Cth) 2009 (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.

Whilst many businesses will be eligible for JobKeeper and therefore entitled to initiate a JobKeeper stand down direction, when implementing such a direction there is a requirement that the employer consults with employees and provide them with three days’ notice of the direction taking effect. Since businesses in Group 2 are to close from 11:59pm Wednesday 5 2020, employers will be unable to strictly comply with the JobKeeper notification requirement.

Where a s.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 cancellation, of a stand down should be confirmed in writing.

What does this mean for employees and their working arrangements?

Where employees can perform their duties from home, then they can continue working and implementing a stand down is not necessary. Where this is the case, businesses should consider an employee’s ability to work from home safely.

Employers are reminded to utilise a Working from Home Safety Checklist (available through the HRA Cloud platform) to ensure employees have a safe place to perform their work at home. It’s important to remember that the home office is considered the ‘workplace’ for the purposes of employer liability.

How do my employees get paid if they have been stood down?

Option 1: JobKeeper qualified businesses

If your business has qualified for JobKeeper payments, then you will continue to pay your eligible stood-down employees the JobKeeper subsidy of $1500 per fortnight.

Option 2: Businesses that are not JobKeeper qualified or have employees who are ineligible to receive payment

If your business does not qualify for the JobKeeper wage subsidy or you have employees who do not meet the eligibility test, then you are not required to make payment to these employees for the duration of the stand down. You can, however, allow employees to access any accrued annual leave or long service leave during this period.

Employees in this situation should also be encouraged to contact Services Australia to identify support available to them.

What documents are available to me?

For HR Assured customers, you have access to a range of templates to help you manage your employees during this uncertain time. Below is a list of the templates you can access via the HRA Cloud platform:

  • 524 stand down template (for all employees you are standing down immediately);
  • JobKeeper direction regarding the location of work (for employees who can work from home);
  • working from home arrangement and safety checklist; and
  • JobKeeper direction regarding duties of work (if you need to change an employee’s duties, for example, a retail staff member to work at the warehouse packing click-and-collect goods).

If your business has a coronavirus-related query, please contact the HR Assured team.

Amanda Curatore is a qualified senior workplace relations consultant at FCB Group and HR Assured. Amanda is highly experienced in providing workplace relations advice and assistance to clients in a wide range of matters including employment contracts, modern award interpretation, managing performance, bullying and harassment, terminations and managing risk.