May 13, 2020
As the economy recovers and business are set to open again, businesses may wish to ask any employees they stood down to return to work.
However, having your staff return from stand down is not as simple as flicking a switch. Workplace relations in Australia is rarely easy.
A quick reminder before we begin:
When referring to stand down, we are referring to the ‘normal’ stand down provisions of the Fair Work Act, which are distinct from JobKeeper enabling directions.
Before you can stand your employees down without pay, you will need to have met the conditions which allow a stand down under the Fair Work Act. For more information on your ability to legally stand employees down see here.
However if your business no longer meets the stand down requirements (e.g., the Government lifts restriction on your operation), your employees can no longer be required to remain at home without pay and you may need to bring them back to work.
The following may help you better understand what you have to do if you have employees returning from stand down or another form of absence from the workplace.
We have highlighted five key considerations to make when returning employees to the workplace.
First, figure out how much work you have for employees to perform and most importantly, if they can perform that work safely (more on that later).
Through this review you may find that you don’t have enough work for all of your employees, or enough work for some employees but not for all.
There are few options available to you if you find yourself with not enough work for your employees.
You may be able to reduce their hours, change their duties or direct the employee to work at another workplace (if possible). What is appropriate will ultimately depend on the individual facts and circumstances of your business. If you are unsure, you should seek professional guidance from an appropriately qualified professional. If you are covered by the JobKeeper scheme, employers may have additional rights in respect to the changing of hours of work, duties and work locations for employees who are receiving JobKeeper. Read more below on these JobKeeper enabling directions.
Another option is to ask employees to agree to annual leave, long service leave or unpaid leave, or a combination. There are some temporary rights around annual leave for employers who have employees receiving JobKeeper payments. JobKeeper enabling directions will allow for employers to request their employees to take annual leave so long as their annual leave doesn’t dip below two weeks’ remaining. For more advice on your ability to request leave we recommend that you call EmployerLine by Employsure on 1300 651 415 for free initial advice.
The last option which most employers are trying very hard to avoid is redundancy. Redundancy can be an expensive option to take, and it has strict conditions that must be met. However, if you feel that you must make redundancies, Employsure recommends you discuss this option with a workplace relations expert before going through with it.
For any employees in your workplace who have access to unfair dismissal, or have their hours of work guaranteed in a contract of employment, it is not recommended that you change the employees working hours without consent or a proper process. For some employees, e.g. genuine casuals, you may have more flexibility (please be careful and seek advice before changing casual employees’ hours).
For those employees who it is recommended to follow a formal process, how you do this will depend on whether you are eligible to issue a JobKeeper enabling direction. You will only be eligible to issue JobKeeper enabling directions to those employees who you are paying JobKeeper payments in line with the scheme. You must also only issue JobKeeper enabling directions when they are reasonable in the circumstances.
If you are eligible to give a JobKeeper enabling direction, you can vary the employee’s hours (including to nil), duties and location without the employee’s agreement, however there are a number of conditions that must be met.
If you are not eligible to, or choose not to, give a JobKeeper enabling direction, there are still some options available. Firstly, you and your employee could by mutual agreement vary the employee’s terms and conditions of employment. Secondly, you may need to consider options such as a formal restructure or redundancy process (the process and applicable entitlements will depend on the employee, their contract and Award or Enterprise Agreement)
To ensure you are following the correct processes in order to protect your business you can give EmployerLine a call for some free initial advice.
Workplace health and safety has found a new level of importance due to the Covid-19 outbreak. Safe Work Australia and the federal government have recognised that Employers duty of care will extend to taking all reasonable steps to protect their employees from contracting Covid-19 whilst at work.
You will now have to incorporate health directions, like social distancing, into your workplace. You will not only have to consider your staff but also customers, contractors and other visitors to your workplace.
On top of that, you may also have to apply WHS guidelines provided on an industry-basis, by SafeWork Australia. There may also be further restrictions and provisions imposed on you by your applicable state or territory Government.
To assist employers get adapt to post-Covid life, Employsure has pooled together a few materials that employers can download for free and place around their business.
Furthermore, if you would like assistance to make your workplace ready to return post-Covid, enquire about Employsure’s Workplace Ready offering.
As soon as there is no longer a stoppage of work, you should communicate to your employees that your business will be resuming, we recommend notifying employees in writing to avoid any misunderstandings.
If the employee’s terms and conditions of employment have changed or need to change, Employsure recommends you get in touch with a workplace relations expert for specific advice and documentation.
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