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Karena Nicholls
Q&A with Coutts Partner and Employment Lawyer Karena Nicholls regarding COVID and Employment Rulings

Yes, the federal government will allow you to ask your employees to assist in the guarding of infection in the workplace.

Not unless under direction or you have a policy that is reasonable and lawful.

Yes, if they’ve been to a hot spot that is identified you can direct that they get tested and isolate for 14 days.  If they have breached a health order, you can stand down and investigate (ie. attended a protest).

You can have a vaccination policy and direct vaccination however it is not mandatory unless the direction is lawful and reasonable or a direction by the government.

Yes, if they are sick they can access sick leave.

Lying falls under misconduct.  You can instigate an investigation and stand the person down with pay, while you investigate.

Look at reasons why the employee did not want to have it.  Can you put measures in place such as masks and testing or other opportunities to deploy?  If not, it is likely that the employer would be able to lawfully dismiss them.

The employer has an obligation to take reasonable care.  Ensure it is in relation to health advice and ensure a suitable qualified person is administering, if you plan on doing so on the worksite.

Unless it is a government direction you cannot mandate a vaccination. However, in the interest of WHS you would need to look at the reasons why the person chooses not to vaccinate and the options you have to accommodate in the workplace. Vax passports – s92 of Constitution refers to freedom of movement between the states and any restriction must be justified as proportionate to legitimate objectives. But both state and federal have additional powers during a health emergency. They can make it very difficult for you to move around without one.

You cannot force leave at this stage as the leave enforceability clauses were lifted after the last covid outbreak. You can encourage staff to take leave, standdown and access the government disaster payments and also take leave to top up.

The ruling is that you cannot enter a workplace if you do not hate the jab.  You do have a choice but some industries have made it mandatory due to risks:

  1. Aged care workers must be vac by 17 Sept 2021
  2. Under NSW Airport & Quarantine Workers Vaccination Program, employees must have at least the first dose. Quarantine, transport & airport workers are mandatory
  3. Construction – no vaccination you cannot enter the site

Expect this list to grow.  Otherwise, it has to be a lawful & reasonable direction by the employer – however always best to seek advice.

The State and Federal Government have the following support available:

  1. COVID Disaster Payment if you can’t work & have lost more than 8 hours of paid work the payment is $450 or $750 this is for employees from the Federal Government
  2. Pandemic Leave disaster payment is available for those required to isolate or quarantine.
  3. Test & Isolate payment is a one-off payment of $320 if wages are lost while waiting for COVID results and isolating
  4. COVID Support Packages from Service NSW
    1. COVID Business Grant of between $7,500-$15,000 if had 30% drop in revenue  (must have annual turnover of $75K-$10mil)
    2. Job Saver – Cashflow boost of 40% of  weekly payroll between $1500 – $100,000 must have 30% decline and turnover between $75k-$250mil
    3. COVID Micro Business Grants – Fortnightly payments of $1500 for turnover between $30k-$75K
  5. Payroll tax deferrals
  6. Payroll tax reduction
  7. Gaming machine tax deferrals

Also recommend you speak to your accountant about the grants/support available.

Redundancy needs to meet the Fair Work Commission rules and individual awards.

  1. Must be genuine – that is the job is not required to be done by anyone else and employer has consulted with staff.
  2. Redundancy applies if you employ more than 15 staff and for some specific awards such as the Building & Construction award that has an industry specific redundancy clause.
  3. Business can make staff redundant due to COVID due to a downturn in work
  4. If an employer cannot pay redundancy they can apply to Fair Work Commission to reduce the amount of the redundancy – the business would need to prove the financial reasons.  The FWC has recently determined a number of applications to vary redundancy pay, largely arising out of the effects of the COVID-19 pandemic. In Yu Kitchen Pty Ltd (2020), the FWC reduced two former employee’s NES-derived redundancy entitlements from over $3,000 to just $134.13 each. In this case, the FWC was satisfied the business had been “decimated by the pandemic” but saw no reason why the remaining $268.26 in the company’s bank account should not be divided between the employees.

Fair Work Australia has provided the following information:  Employers can only require their employees to be vaccinated where:

  1. a specific law (such as a State or Territory Public Health Order) requires an employee to be vaccinated in NSW.  This is quarantine, transportation, airport & construction workers who live in declared areas;
  2. the requirement is permitted by an enterprise agreement, other registered agreement or employment contract;
  3. it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case by case basis;
  4. at this stage, if an employer forces staff to be vaccinated and it isn’t mandated by Health Rules or Federal Government it will be potentially a legal issue.  However, as a business, you also need to ensure you provide a safe work environment and you will need to carry out risk assessments for staff that aren’t vaccinated – should they be working in customer facing roles?  Should they be allowed to return to the office when opens back up? It would be best to get legal advice on specific situations.
  • COVID 19 vaccinations will be compulsory for residential aged care workers from 17 September 2021
  • COVID 19 Vaccinations for in-home & community aged care providers are required to report on their workforce COVD 19 vaccinations

Getting advice early can save you in the long run. Coutts has diverse and experienced lawyers & conveyancers who can give you solutions to your legal matters.
If you have any legal questions come and see one of our team.