Understanding your rights during COVID-19

For many workers, it depends on what your contract of employment, award or enterprise agreement says. It may contain a clause permitting your employer to change your duties, sometimes without your agreement. So check your contract or industrial instrument (if you have one).Otherwise, if your employer qualifies for and is eligible for JobKeeper payments, they can issue a direction changing your duties.

These duties should be within your skill and competency; should be safe, having regard to the nature and spread of COVID-19; where the duty requires you to have a license or qualification you should have the relevant license or qualification; and should be reasonably within the scope of your employer’s business.

The direction must be reasonable in all the circumstances, and there are notice and consultation requirements that must be complied with.

Finally, your employer must also hold a reasonable belief that the direction is necessary for your continued employment or the continued employment of other employees.

Again, for many workers, it depends on what your contract of employment, award or enterprise agreement says. It may contain a clause permitting your employer to change your location of work, sometimes without your agreement. So check your contract or industrial instrument (if you have one).

Otherwise, if your employer qualifies for and is eligible for JobKeeper payments, they can issue a direction changing your location of work.

Your employer should ensure that the location is suitable to perform your duties. If the place is not your home, it must:

• not require you to travel a distance that is unreasonable in all the circumstances, including the circumstances surrounding the COVID-19 pandemic;
• be safe having regard to the nature and spread of COVID-19; and,
• result in the performance of the duties being reasonably within the scope of your employers business operation.
   

Again, the direction must be reasonable in all the circumstances, and there are notice and consultation requirements that must be complied with.

Finally, your employer must also hold a reasonable belief that the direction is necessary for your continued employment or the continued employment of other employees.

An employer should be providing employees with the tools and equipment they need to perform their roles safely.

Workplace Health and Safety (WHS) laws continue to apply notwithstanding any direction made under the JobKeeper Scheme.

Under WHS laws, employers have obligations to provide safe workplaces. What this looks like in a workplace will vary depending on the nature of work and the type of workplace.

In respect of COVID-19, a number of formal restrictions have been put in place regarding spacing and distancing which may affect how work is performed.

Employers should comply with any laws in place and also have regard to the publicly available information about the risks in ensuring the safety of workers. 

The Privacy Act 1988 has recently been amended to make it an offence for an employer to require an employee to download and use the COVIDSafe app. The offence carries a penalty of 5 years in prison or a fine of up to $63,000. This is a welcome protection of employees’ right to privacy during the pandemic.

If you are sick with COVID-19, you should take personal leave. Similarly, if you are caring for someone who is sick, you should take carers leave.

You should provide your employer with a valid medical certificate as soon as possible and focus on recovering. Once your doctor gives you the all-clear to return to work, and it is safe to do so, your employer must facilitate your return.

The Federal Court, in CEPU & ors v Qantas Airways Limited [2020] FCA 656 has recently held that, if stood down under s524 of the Fair Work Act 2009, employees may only access sick leave entitlements if authorised by their employer. Where an employer refuses to allow a stood down worker to access sick leave, the worker will remain stood down without pay. This decision may be appealed.

You may only be stood down if you cannot usefully be employed because of a stoppage of work. Whether you can be usefully employed will depend on your individual circumstances.

Additionally, your employer must not be responsible for the stoppage of work. In relation to the current pandemic, this means employers should be making every effort to ensure that their business is still operating as best as it can.

Your employer should comply with any requirements to provide notice and consult included in your enterprise agreement or award before standing you down.

How many employees can be stood down depends on the amount of work there is to be performed. Each employee must be providing some economic value to the employer.

This may mean that some staff are stood down and some are not.

While the employer may choose which staff are stood down, they must not make such decisions based on unlawful grounds, such as age, disability, gender or race.

Stand downs should be for a defined period of time.  If your employer has stood you down indefinitely, it might be unreasonable and you should seek legal advice.

There may be a number of different legal avenues available to employees where they are asked to do something unreasonable or have been treated unfavourably.

For example, employees whose pay is reduced without their agreement may have breach of contract claims.

Employees over 60, or who have a health issue, and who are stood down may have claims under anti-discrimination legislation.

Where an employer qualifies for and is entitled to JobKeeper payments, any of the directions an employer may issue to stand down, change duties, location of work or take leave can be disputed before the Fair Work Commission.

We suggest getting advice quickly so you know where you stand.