Like all West Australians, you have likely started the week with more questions about the impact of the WA Government’s direction to lockdown.
Some of the available information on the official government website (link below) HAS ALREADY BEEN UPDATED since yesterday – and we also have the first wave of COVID-19 last year to guide a ‘reasonable’ response to employees.
Check regularly for updates on government advice as they are updating this information as they receive questions
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Summary of Key Points
Here is a summary of a reasonable response to this week’s lockdown directions:
- The lockdown would be seen as an ‘enforceable government direction’ as a result of the ‘hard lockdown directions’. Follow LINK BELOW.
- Check contracts of employment or applicable awards for specific directions, otherwise the Fair Work Act 2009 is likely to be the go-to.
- Stand down of non-essential employees should be considered on a case-by-case basis (e.g. to ensure your individual team members cannot be usefully employed elsewhere in the workplace or another location – like home).
- For information on who is an essential worker, follow LINK BELOW.
- State System Employers should contact their advisors to confirm the WAIRC General Orders (COVID LEAVE) which are still in effect until 28th March 2021). Follow LINK BELOW.
The following is taken directly from the Fair Work Ombudsman website as at the time of this article and has targeted information and links to templates / further reading [NB: emphasis has been added].
General Fair Work Act stand down provisions
Under section 524 of the Fair Work Act, an employer can stand down an employee without pay where they can’t usefully be employed because of a stoppage of work for any cause for which the employer can’t reasonably be held responsible.
Employees who are stood down without pay are still employed for the period of the stand down.
To stand down an employee using these provisions, an employer needs to be able to show that:
- there is a stoppage of work
- the employee to be stood down can’t usefully be employed because of the stoppage (this isn’t limited to the work an employee usually performs)
- the cause of the stoppage must be one that the employer can’t reasonably be held responsible for.
Employers generally can’t stand down employees under the Fair Work Act stand down provisions simply because of a deterioration of business conditions or because an employee has coronavirus.
If an enterprise agreement or employment contract applies to the employees and allows the employer to stand down employees because of a stoppage of work, the employer has to use the provisions in the agreement or contract. They can’t use the general Fair Work Act provisions.
If an employer unlawfully stands down employees without pay, their employees may be able to recover unpaid wages.
Some examples of when employers may be able to stand down employees include:
- if an enforceable government direction required the business to close (which means the employee can’t be usefully employed, even from another location)
- if a large proportion of the workforce was required to self-quarantine and the remaining employees/workforce can’t be usefully employed
- if there was a stoppage of work due to a lack of supply for which the employer can’t be held responsible.
An employer should discuss and communicate any decisions they make about implementing a stand down with their employees.
Employers who aren’t accessing the JobKeeper scheme can use our letter template for standing down employees – for employers not accessing the JobKeeper scheme (DOCX 64.3KB) (PDF 399.7KB). The template includes steps to consider before standing down employees, as well as a letter template for notifying an employee that they are being stood down under the Fair Work Act provisions.
Employers also need to consider any applicable award, enterprise agreement, employment contract or workplace policy. These can have different or extra rules about when an employer can stand down an employee. For example, some awards and agreements include a requirement to notify or consult with staff before they can be stood down. You can use Find my award if you’re not sure which award applies to you.
Notifying and consulting with your affected team members should be seen as best practice regardless.
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Paid pandemic leave
Paid pandemic leave is available to some residential aged care employees.
The leave entitles eligible employees to up to 2 weeks’ paid leave on each occasion they need to take it. Certain conditions and criteria apply to access the leave.
See Paid pandemic leave in some awards for more information.
Unpaid pandemic leave during quarantine and self-isolation
Some employees have access to unpaid pandemic leave.
Employees who are employed under one of the affected awards can access up to 2 weeks of unpaid pandemic leave (or more by agreement with their employer) if they can’t work:
- because they need to self-isolate in line with government or medical authorities, or on the advice of a medical practitioner, or
- because of measures taken by government or medical authorities in response to the pandemic (for example, an enforceable government direction closing non-essential businesses).
The leave is available to full-time, part-time and casual employees in full immediately. They don’t have to accrue it.
Employees don’t have to use all their paid leave before accessing unpaid pandemic leave.
All eligible employees can take the 2 weeks’ leave. It is not pro-rated for employees who don’t work full-time.
Go to Unpaid pandemic leave and annual leave changes to awards to find out which awards have unpaid pandemic leave, and the rules about when and how it can be taken.
This article was updated 07-02-21 at 2.52pm