On 12 August 2020, Nick Tindley, Head of Workplace Relations and Advisory at HR Assured and Law Partner at our parent company, FCB Group hosted a webinar where he addressed Victoria’s stage 4 restrictions and what this means for businesses. On the day, Nick received an overwhelming amount of questions. Given the importance of the topic, Nick has handpicked some of the questions he didn’t get to answer and has responded to them here.

If your question was not answered during the webinar, or you were unable to attend, read on.

COVID Safe Plans

Are employers required to submit their COVID-19 Safe Plans once created?

In Victoria, permitted workplaces must have a completed COVID Safe Plan in order to continue operating. The purpose of the Plan is to protect staff, customers and visitors of the business. When completing your COVID Safe Plan it is important that you consult with your employees throughout the process as well as share the final Plan with your employees once it’s been completed.

As long as the COVID Safe Plan is implemented in your business and your employees and/or contractors are made aware of its contents, the Plan does not need to be submitted to authorities, although it may be required to be produced.

What do employers need to know regarding high-risk COVID Safe Plans?

High-risk industries in Victoria are required to complete a high-risk COVID Safe Plan in addition to the Victorian workplace COVID Safe Plan.

High-risk industries in Melbourne include:

  • Construction
  • Warehousing and distribution
  • Supermarket distribution
  • Medical supplies and pharmaceutical sectors
  • Abattoirs or meat processing facilities as well as seafood and poultry.

Business Victoria has developed a template for completing a high-risk COVID Safe Plan that is specific for the relevant industry group. The State Government website also has guidelines as to what is required and how the template should be appropriately complete.

Annual leave

Can employees access annual leave when they are on JobKeeper payments?

Employees are entitled to access their accrued annual leave entitlements while receiving JobKeeper payments.

Under the JobKeeper scheme, employers can request for their employees to take their accrued annual leave and employees cannot unreasonably refuse. Employees must have at least two weeks of accrued annual leave left, the leave which is the subject of the request has been taken. For HR Assured clients, there’s a templated letter on the HRA Cloud for requesting employees to take annual leave under the JobKeeper scheme.

Are employees required to exhaust their annual leave balance before they can access pandemic leave?

Employees may have access to pandemic leave according to the particular Modern Award they are covered under. If such an entitlement exists, then, employees are not required to exhaust their accrued annual leave balances before they can access pandemic leave. Two weeks of unpaid pandemic leave is only to be utilised in the specific event that the employee has been advised by a medical practitioner or government body that they are required to self-isolate. Moreover, the unpaid pandemic leave entitlement is only available for a specific time period as set out in the applicable award.

Personal/carer’s leave

 If an employee is not sick but has been required to self-isolate, are they entitled to take personal leave?

An employee is only entitled to access personal leave when they cannot work due to personal illness or injury. If an employee is not sick or injured, they are not entitled to take personal leave.

In the event an employee has been required to self-isolate by a medical practitioner or by the State Government, depending upon whether the applicable Award they are covered under includes such an entitlement, the employee may take up to two weeks of unpaid pandemic leave.

Are employees entitled to access carer’s leave during Victoria’s stage 4 lockdown restrictions to take care of their children?

The entitlement to carer’s leave occurs when an employee is required to provide care or support to a member of their immediate family or a member of their household because of:

  • a personal illness or injury affecting the member; or
  • an unexpected emergency

At the commencement of Victoria’s stage 4 lockdown restrictions, it could have been argued that the need to home school children came as an emergency. However, three weeks into the lockdown, it may now be difficult to argue that the current circumstances constitute an “emergency” given individuals have now had a reasonable period of time to organise alternative caring arrangements. While not a strict entitlement to do so, an employer may wish to grant leave at their discretion.

Work permits

Who is eligible for a work permit?

Employers in Victoria can issue work permits if:

  1. The organisation is on the list of permitted industry groups and activities;
  2. The employee is working in a site that has been approved; or
  3. The employee cannot work from home

An employee who is not permitted to use a worker permit even though they may have been provided one is:

  1. An employee who has tested positive to COVID-19 and is required to self-isolate; or
  2. An employee who has been in close contact with someone who has tested positive to COVID-19.

Penalties can arise for both individuals and businesses who have issued worker permits to employees who do not meet the specified requirements or have breached the scheme.


What are the changes for employee eligibility for JobKeeper payments?

The date of assessment which employees are eligible for the JobKeeper payments is now 1 July 2020. If an employee was hired later than this date, they will not be eligible for the JobKeeper payment. This new eligibility criteria took effect on 3 August 2020. This has had the effect of increasing employee eligibility for the existing scheme and the extension. That is, a business is able to start claiming the JobKeeper subsidy for such employees from now.

If my business has been shut down due to stage 4 restrictions in Melbourne and my employees have been stood down, am I eligible to receive JobKeeper payments even if I have not met the 30% reduction in turnover test?

No. The requirement to show a 30% reduction in a business’s turnover compared to a comparable period 12 months ago in order to be eligible for JobKeeper has not changed. The only thing which has changed is the reporting requirements.

That is, in order to be eligible for the JobKeeper subsidy in the December quarter, businesses must demonstrate that they have met the decline in turnover test for the September quarter. For businesses to then be eligible to receive JobKeeper in March 2021, it must show a decline of 30% in turnover in the December quarter.

Is JobKeeper still a “one-in”, “all-in” program?

Yes. Employers eligible for JobKeeper must nominate all of their eligible employees.

I will have a new employee starting with my business after 1 July 2020. Will I be able to claim JobKeeper for them?

No. This employee will not be considered as an “eligible employee” because they would not have been employed prior to 1 July 2020.

Working from home

We have a staff member who is required to work onsite but has an immunocompromised family member and doesn’t want to come in because of them. The family member’s doctor has stated they would be ‘safer’ working from home, but not that they cannot attend the workplace. In addition, their role is unable to be performed at home. What can we do?

Firstly, it is advisable to have a discussion with the employee and consider if any aspect of their role can be performed from home. The employer should also undertake a risk assessment in conjunction with the employee to determine if work can be performed safely in the workplace.

If the employee genuinely cannot work from home and refuses to attend the workplace in fear of infecting their immunocompromised family member, then they are able to utilise any accrued annual leave they may have or otherwise take this time off as unpaid leave.

If a staff member wishes to continue working from home after the COVID restrictions are lifted, can we insist that they return to the office?

Once the restrictions are lifted, employers have the ability to direct an employee to return back to the workplace. Employers, however, should be mindful of employee morale. COVID-19 has changed the world forever, and this includes the future of increased working from home arrangements. If an employee’s role can safely and productively be performed at home, it is advisable to have a discussion with the employee and come to a mutually acceptable agreement about work location.

However of course if it is the business’s preference to have all employees working on-site, the absent any personal circumstances requiring an individual to perform their role from home, employees can be directed back into the office.

We appreciate that the current pandemic is creating many challenges for businesses, and obligations upon employers are changing frequently. Please do not hesitate to contact us if we can assist your business in navigating the regulatory framework during this difficult time. HR Assured is here to help your business.