Given the recent 3-day Greater Brisbane lockdown, we thought it would be useful to provide a short summary of the updated restrictions announced this morning [Monday 11 January 2021], along with the leave and stand down options under the Fair Work Act 2009  [Cth] [FW Act] in the event we have further National/State short or long-term lockdowns.

Please do not underestimate how important your Covid Plan, policies and procedures are going to be in 2021. 

updated Greater Brisbane [Brisbane, Ipswich, Logan City, Moreton Bay and Redlands Councils] restrictions 

The restrictions potentially relevant to your business are as follows:  

  • Businesses and venues can have one person per 4m square indoors, and one person per 2m square outdoors 
  • Gatherings are restricted to 20 people in homes and public spaces 
  • People must carry a mask at all times. Masks must be worn in workplaces if social distancing is not possible, and it is safe to do so 
  • Masks do not need to be worn in private vehicles or outside if at safe distance from others 
  • Masks must be worn on public transport, taxis and in rideshare vehicles [as well as a number of other settings] 

Click here to review the restrictions in more detail. 

We know that this particular lockdown has created some concerns for employers and how they handle this kind of situation, so we asked Justine Ansell from IR Legal Solutions to provide a reminder on leave and stand down requirements that she has summarised below.  

 

pandemic leave 

  • On 8 April 2020, the Fair Work Commission [FWC] made determinations varying 99 Modern Awards, adding unpaid pandemic leave and annual leave flexibility. 
  • The determinations inserted a temporary new ‘Schedule X’ into these 99 Modern Awards which provided 2 weeks of unpaid pandemic leave and the ability to take annual leave at half their normal pay if their employer agreed. 
  • The FWC has now extended Schedule X in many Modern Awards. Importantly, there are different end dates for the extended unpaid pandemic leave and annual leave provisions in those Modern Awards [click here to see a list of Modern Awards where Schedule X is still in force]. 
  • Employees who are employed under one of the affected Modern Awards can still access up to 2 weeks’ unpaid pandemic leave [or more, by agreement with their employer] if they are prevented from working: 
    • as a result of being required to self-isolate by Government or medical authorities,  
    • or acting on the advice of a medical practitioner, 
    • or by measures taken by Government or medical authorities in response to the pandemic. 
  • The unpaid pandemic leave is available in full immediately to full-time, part-time and casual employees – they do not have to accrue it. Employees also do not have to use all their paid leave before accessing unpaid pandemic leave. 

 

stand down 

In some circumstances, employers may be able to stand their employees down [with or without pay] during the COVID-19 outbreak for various reasons, including when: 

  • the business has closed because of an Enforceable Government Direction [which means the employee can’t be usefully employed, even from another location such as their home], 
  • there is a stoppage of work due to lack of supply for which the employer cannot be held responsible, or 
  • a qualifying employer or legacy employer uses a JobKeeper enabling stand down direction under the temporary JobKeeper changes to the FW Act. 

Before standing down an employee, employers should consider all other options and seek legal advice.  

During the COVID-19 outbreak, we have seen FWC overturn an employer’s decision to stand down some employees so to avoid this from happening to you, legal advice should definitely be sought before you make the decision to stand down any of your employees. 

The Fair Work Ombudsman is encouraging employers to consider the following before any stand down decision is made: 

  1. Are working from home arrangements available? 
  2. Can you agree with the employee to a temporary change in duties, rosters or hours, to enable the employee to continue working? 
  3. Accessing paid or unpaid leave options
  4. Can you apply for the JobKeeper scheme in relation to the employee? [although we note there a number of eligibility rules to be considered a ‘qualifying employer’]

questions 

If you have specific questions relating to the above, we encourage you to get some legal advice before making decisions, particularly around stand down.  

At businessDEPOT, we are lucky most of our team have the ability to work from home and there are very few roles that cannot be done remotely. However, when the lockdown was announced on Friday, there were still a few team members who were unable to mobilise and get set up to work from home today due to the short notice. 

We enabled those team members to take paid or unpaid leave. We also understand that this situation [and the short notice] may happen again, and again. So we are continuing to adapt our processes and protocols to manage the unpredictability that COVID-19 still presents, as we go into 2021.  

 

Should you require any specific advice on the current restrictions and/or how your business can best manage these as you move through 2021, get in touch with your local business advisor and we can ensure you speak to the right person to get the right advice.