From Sunday 18 July 2021, most workplaces in Greater Sydney including the Blue Mountains, Central Coast, Wollongong, and Shellharbour were declared closed to the public. This lockdown has now expanded to parts of regional NSW, Melbourne, Adelaide. This means that many employers would have likely been forced to stand down some or all their employees under the current lockdown restrictions.
So, what is it that employers can and cannot do during this lockdown?
Looking back on the last week, we have compiled a list of FAQ to assist employers.
Q. Can I continue to operate my retail business as normal?
A: Retail businesses that provide essential services are permitted to continue to operate and their employees are considered authorised workers. These include:
- supermarkets and neighbourhood shops
- shops that predominantly sell food or drinks
- chemists and pharmacies;
- kiosks
- shops that predominately sell any of the following in the course of their normal operations:
- office supplies
- pet supplies
- newspapers, magazines and stationery
- alcohol
- maternity and baby supplies
- medical or pharmaceutical supplies
- hardware and building supplies
- landscaping material supplies
- rural supplies
- timber yards
- garden centres and plant nurseries
- industrial or commercial food retailing
- fuel retailing
All authorised workers working in the above businesses are required to wear a mask whilst at work.
Q: My business employs administrative and clerical support personnel. Are they able to continue to work as normal?
A: No, not unless your business is an essential business or where the employee’s role is to coordinate “click and collect” services. All authorised workers working in the above businesses are required to wear a mask whilst at work.
Q: My business operates in the manufacturing sector. Am I allowed to continue to operate as normal?
A: Manufacturers of the following products can continue to operate as normal, and their employees are considered authorised workers:
- production and manufacturing of food, beverages, groceries, cleaning and sanitary products
- food and fibre processing and manufacturing
- manufacture of food and beverage packaging
- manufacture of coffins and caskets
- manufacturing of medical equipment, consumables and personal protective equipment
- manufacturing of telecommunications equipment and infrastructure
All authorised workers working in the above operations are required to wear a mask whilst at work.
Q: What about Transport and Warehousing activities?
A: Employers engaging in the following operations can continue as normal and their employees are considered authorised workers:
- seaport and airport operations
- freight, logistics, postal, courier or delivery services including food logistics, delivery and grocery fulfilment, but not home and office removals
- export supply chain operators
- distribution of food, groceries and sanitary products for sale by supermarkets, grocery shops or other shops that predominantly sell food or drinks
- warehousing
- road transport (passenger and freight) apart from taxi, rideshare and chauffeur services
- rail transport (passenger and freight) – including rail yards
- water transport (passenger and freight)
- air transport (passenger and freight)
- pipeline and other transport
- transport support services
- vehicle repairs and critical maintenance including disinfection
- towing services
All authorised workers working in the above operations are required to wear a mask whilst at work.
Q: What about office workers?
A: In Greater Sydney, the Blue Mountains, Central Coast, Wollongong and Shellharbour local government areas, Adelaide and Melbourne, employers must require an employee to work from home if the employee is reasonably able to do so. Businesses that attempt to direct employees to work in the office when they can reasonably work from home face a fine of up to $10,000.
Where an employee absolutely must attend the office (and it is allowed to be open), employees must wear a face mask.
Q: My employees live in the Fairfield, Liverpool or Canterbury-Bankstown local government areas. Are there additional requirements on them?
A: Employees who live in the Fairfield, Liverpool or Canterbury-Bankstown local government areas cannot leave home for work unless they are an authorised worker as listed above. Employers that are outside of the Fairfield, Liverpool or Canterbury-Bankstown local government areas cannot allow workers onto their premises unless they can show evidence of receipt of a COVID test within the last 72 hours.
Authorised workers who live in the Fairfield, Liverpool or Canterbury-Bankstown local government areas for work and do not have to leave these local government areas for work do not need to get a COVID test.
Q: I have had to stand down my employees because I cannot provide them work during the lock down. My employees want to take accrued annual leave, but I have no cash flow. Am I forced to pay?
A: The mechanism for an employee to take annual leave is by agreement between the employer and employee. If making payment of annual leave to the workforce to cover lockdown is not possible due to financial constraints, the employer can elect not to agree to allow the employee to take annual leave.
In these circumstances, it is advisable that the employer consults with its employees in advance to avoid misunderstandings and conflict between the employer and employees.
Q: I have had to stand down my employees because I cannot provide them work during the lock down. I want to use the stand down period to pay out some of my employees’ excessive accrued annual leave. Can I direct my employees to take annual leave during stand down?
A: This will depend on whether and what (if any) modern award or industrial instrument applies to the employees in your business. However, in most circumstances there is a minimum notice requirement and a minimum annual leave balance that must be retained. It is not possible to direct employees to take annual leave without providing the required notice. However, employers and employees can agree to have the employee take annual leave during the lockdown period. We can provide tailored advice in answer to this question upon request.
Q: One of my employees who has been stood down informed me he is ill and wants to use his personal leave and be paid during the period he is ill. Do I need to pay him and allow him to use his personal leave?
A: No, if the employee is stood down there is no requirement to allow the employee to access their accrued personal leave.
Q: I employ casual employees. Are there any requirements that apply to casual employees who are stood down?
A: No casual employees who are stood down are not entitled to receive any payment from their employer for the period they are unable to work.
Q: Am I able to vary the hours my employees work, or change their duties so I can pivot my business during lockdown?
A: Unfortunately, the flexibilities that were created by the Jobkeeper regime and temporary changes to the modern awards no longer apply. An employer can only change the hours of work and duties performed by its employees with their consent. It cannot do so unilaterally. If an employee does not agree, it is possible to stand them down if there is no work for them to perform because of the lockdown.
Q: Am I able to reduce the remuneration I pay my staff during this period?
A: No, an employer is not entitled to unilaterally reduce the remuneration of employees. This can only be done by informed consent of the employee concerned.
Q: This constantly changing rules are wreaking havoc on the business. Is there any assistance available to me and to my employees?
A: A one-off payment to help businesses, sole traders or not-for-profit organisations impacted by the current Greater Sydney COVID-19 restrictions.
Grants between $7,500 and $15,000 are available to eligible businesses depending on the decline in turnover experienced during the restrictions.
Terms and conditions and eligibility criteria and applications for the 2021 COVID-19 Business Grant can apply here.
Alternatively, for businesses with:
- a turnover between $30,000 and $75,000;
- a revenue decline of 30% or more; and
- that provide the primary income source for a person associated with the business,
a fortnightly payment of $1,500 for businesses will be made available in late July.
Employees who have been stood down and are experiencing financial difficulties may be eligible for the COVID-19 disaster payment. Eligibility criteria and applications can be made here.
If any further information in relation to any aspect of this alert is required, please do not hesitate to contact us. Otherwise, we are available and ready to assist should you require any specialist employment law advice or legal support at this time.
This alert is not intended to constitute, and should not be treated as, legal advice.