Facebook Live Event 2: Answering Your Questions

Published March 31, 2020 Views: 4

20/03/20

In the second video of this series, Ed discusses the stages of response to the crisis, and discusses Employsure’s response with regards to its own staff. He also answers more questions from clients and the community.

To help your business navigate the COVID-19 crisis Employsure’s founder and Managing Director Ed Mallett is hosting live events on Facebook, to discuss the latest events, burning questions Employsure’s clients are asking and to offer business and management tips. At the end of every session, Ed will answer a few questions that come through the comment section.

Facebook Live Event 2: Answering Your Questions

  • Transcript

    Ed: Hi, everyone, Ed Mallett again here. I’m the MD and founder of Employsure. I presume if you’re, you know, tuning in today you might well have seen yesterday’s video. We didn’t have any plan to speak again today but such was the popularity of yesterday, it felt like we were achieving our mission, really, to help small businesses through this. I think about 5,000 small businesses had a look at yesterday’s video so I thought I’d expand on a couple of things in a video today.

    A couple of apologies, first of all, sorry that I’m not very smart today in business attire. We run a casual Friday here in the office, and we’re doing our best to keep things as normal as possible so I’m just chiming into that. And apologies for any technological problems at the beginning yesterday setting it up, this new form of communication for me was probably a bit like dealing with my elderly mom on Skype. So my apologies for any challenges in that regard. But what I’m gonna do today is really focus on what I discussed yesterday on one stage of the strategy that I’m urging you all to follow.

    So yesterday I talked to you about a four-stage strategy. I said the first stage was stage zero, which is denial that, “This isn’t gonna affect me, nothing’s really happening,” and so forth. The second stage of that strategy was the crisis process, what are you doing with the imminent threats to your business and how are you responding to them vis-a-vis your employees? The third stage was dealing with planning, more forethought into what you’re doing, look at the coming weeks and months in how that’s gonna impact your business before finally looking at opportunity, which was the fourth stage.

    I’m gonna really zone in today, though, on stage one. I’m assuming you’re not in stage zero. If you’re watching today, you wouldn’t be bothering to listen to me ramble on about how I can hopefully help you managing your staff at this point if you were still in denial. If you’re teetering on the edge of denial, you might well be in a panic. Panic isn’t a stage, it’s no use to you. Worrying is not thinking as we talked about yesterday. T-CUP, think clearly under pressure. If you are in a panic, I’d urge you now to try and elevate yourself as a leader, as a manager out of that and start to think about what you can be doing through this crisis stage and getting your staff through that.

    So looking at stage one, the crisis stage. The first issue that arises, I suppose, is what happens if a staff member doesn’t want to come to work or what are your obligations about them coming to work? And this is where there’s a lot of doubt, a lot of rumor, a lot of misinformation that’s causing all sorts of chaos amongst a small business community. So you might be seeing, for example, that you might be doing this as a small business owner, I’ve seen my local cafe, for example, stopping people using KeepCups. And I’m trying to understand why that is. It may well be sensible to do, but no one’s dictated that that needs to happen. That’s not a government directive. That small business is trying to ultimately become expert in a medical condition that we’re not experts in.

    So amongst ideas like that, start to think about whether you’re starting to go too far in trying to create protections, systems, processes in your business that really you’re not medically qualified to make assessments on. Listen to the government advice, they’re the experts, let’s trust them through this, and try not to go too far in what you’re doing or further than what the government is asking. So I’ll come back to see why that’s relevant in a moment. But there’s a real risk, I think, that you can overreact as a small business in this stage and cause yourself damage, end up closing a business, slowing down your revenue streams without need at this stage. I’d urge you all to try and keep going within the boundaries of government advice, but keep going as far as you can. Don’t get too stuck in your own ideas is what you might do and what you think might be the right thing to do. Follow the government advice vis-a-vis the medical practices, particularly. We’re not experts in that, they are.

    So within that context, you might say, “Okay, but you said yesterday that you’d asked your staff to work from home. That’s not what the government’s advising.” And that’s right, the government haven’t said that everyone has to work from home, in fact, they couldn’t. A lot of businesses, all of our clients can’t work from home. If you’re a cafe, you can’t work from home. If you’re a childcare center, you can’t work from home, and so forth. Manufacturing, all sorts of businesses don’t have the luxury of working from home. So how do you deal with that sort of challenge, first of all?

    So you might look critically at your business to see if some people can work from home, and like us you might decide to send them home for two reasons. One because, for us, it made sense commercially, being entirely frank. I didn’t want our workforce to start to cross-infecting each other and therefore lose a big batch of people in similar roles, meaning that I couldn’t help my clients out during this period. I wanna help clients. I don’t wanna be disadvantaged by the illness. The second positive aspect of that is that there is a health and well-being element or a health and safety element, and I’ve got a positive obligation to look after my staff and to keep them safe. It’s difficult to say that I wouldn’t be doing that by asking them to come into the office because the government isn’t telling me not to bring them into the office at this stage.

    So what I’m saying is this is, is for businesses, you might take decisions that have, I suppose, strategic or tactical advantages to you in order to protect your ongoing business. That’s quite different from doing extra things that you think are the right thing to do or might help out in some way and just try carefully to distinguish those. The way I do it is to always ask myself, “Why am I making the decision?” If it doesn’t connect to that fundamental reason for making the decision, which for us is to make sure that we can continue to operate through the COVID-19 crisis and service our clients, then it’s probably not worth doing. So that’s my starting point. Within that context, there’s a lot of misinformation as well about when you have to send people home, when you have to shut your business down, if you do, and so on.

    So the classic one is, what happens if a member of your staff gets sick? Sick, generally, maybe they’ve got flu, maybe they’ve got COVID-19, but they’re just presenting as being sick. Same as usual, no need to panic about this. They should be sent home just as they normally would, if anything, being a bit more cautious, making sure people aren’t soldiering on and engaging in what we call presenteeism, sort of trying to be brave souls through that. So send them home and they’ll be self-isolating for 14 days. There’s no need to close your office at that stage, just monitor business as usual or your workplace, monitor business as usual and see how everyone’s getting along with that.

    What about if that person has COVID-19? And the reality is you’re not gonna find that out for a week or two anyway. So they’ve gone home, they’ve gone home as being sick, they’ve then got to be tested, which under testing requirements here it’s going to take time. So the reality is you don’t need to close your office when they first go home, and then 14 days later if you hear that they’ve had COVID-19 or I’ve got COVID-19, you don’t need to close your office neither. That’s not a requirement of the governor at this stage. It is to monitor the rest of your staff and to see what’s going on with those staff. So don’t rush to close your business because you think you’re doing the right thing. Look critically at what you’re being advised to do by the government.

    What about if you hear one of your staff members say, “I’ve got a family member who’s been sick and/or had COVID-19”? No requirement to close your office at all in either of those circumstances. If the family member’s just been sick, that employee should still come to work. And you should monitor their symptoms, and if they start to get sick send them home. The same process we’ve just been through. If the family member has COVID-19, there is a requirement now that you then go into self-isolation for 14 days. Now, I’ll talk about the consequences of that on pay in a moment.

    So that’s the position with family members getting COVID as well. So there are some requirements to quarantine at the moment, those 14 days, I say, if you’re either confirmed sick or if a family member is confirmed sick. Also, the government is now saying if you’ve traveled in from overseas in Australia from the 15th of March, you’re required self-isolate for 14 days.

    What does all of this mean as to paying your staff? So if your staff members are restricted by quarantine, government advice is to when they have to be quarantined or self-isolated. Technically that’s not you stopping them from working, that’s the government. And if the government is stopping them from working, your positive obligations to pay them cease, essentially. You might be seeking to be a good employer to retain those staff members, you might come to some agreement with them, you might ask them to take annual leave. If they’re actually sick, they’ll have access to sick leave as well. But if it’s the government that’s telling them that they can’t come into work, that isn’t your responsibility as an employer unless, of course, they’re sick, reminding as well the casuals, true casuals don’t have access to sick pay.

    Equally, if an employee, and this is quite a classic one that’s arising quite a lot. If an employee says, “I don’t want to come to work.” Notwithstanding what the government says, notwithstanding you guys doing the right thing by the government and having safe practices, “I just don’t feel comfortable going to work. Maybe I’ve got an elderly mother at home and I care for her and I just don’t wanna put myself a greater risk.” The law in that situation would say is essentially what that employee is requesting is unpaid leave.

    Now, if you were being a stickler for those rules, what you might say is, “No, I don’t care, you need to come back into work.” But in current circumstances evolving quickly, I suspect a lot of you are gonna be saying, “Okay, you can take leave.” You might say, “You can use up your annual leave balance. You can use up carer’s leave.” Or you might be saying that’s unpaid at the moment because we just don’t know how long this is gonna go on for and so forth. Remembering, of course, you don’t have an obligation if you do agree to pay annual leave or someone’s entitled to sick or carer’s leave. You only have to pay them for as much leave as they’re entitled to. It’s not a continuous, ongoing payment forever. Be very careful of that because you don’t wanna end up with making commitments to employees to pay them beyond what their entitlements are at this stage when we don’t know when they’ll be back to work.

    So there’s a bit about not coming to work. If you’ve got any questions, if I’ve missed anything, if I’ve not covered anything, keep them coming. I can see quite a few questions coming through here on the live feed, I’ll come back to in a second. Before I do that, I just wanted to talk a bit more about carer’s leave, reminding ourselves this, and this is why I think it’s really important. Because my suspicion is, and I’ve got to be really careful here because there’s a big difference between doing what I suggested yesterday, which is planning for the worst and hoping for the best, and rumoring and pretending that I’m an expert in COVID-19, I’m not. But my guess, as far as I’m required to plan for my business, is that schools are gonna shut at some stage. That’s a total guess. But if I look at the rest of the world at the moment, that seems to be a step that comes along at some stage in this process.

    What is that gonna mean for your workforce? So one of the things that will likely happen to a number of us in that circumstance, we’re estimating it could be as many as 3 in 10 of our workers turn around and say, “Hey, I’m stuck at home so I need to care for my child.” What happens next? The answer to that is that if carer’s leave as a full-time or part-time employee, you’re entitled to paid carer’s leave if there is an emergency to that child that you mean that you can’t work. So in that case, schools stopping might be an emergency. How long that is an emergency for that you couldn’t predict is really the question mark in the gray area in this. So I’d be very careful to not just say, “Well, as long as the schools are shut, it’s an emergency.” That doesn’t sound like that to me because it’s entirely predictable if the schools shut, that on day two, three, four, five, and so on of that closure, that it was predictable and there is a positive burden on the employee to start looking for alternative care for their child.

    You may take a more constructive view, I suppose, or a less legal view, which is what we’re doing here. We’re paying all staff regardless of entitlement and five days of carer’s leave in the event of a school shutdown like that. And then we’re saying, “Look, after five days we expect you to have sorted things out, found alternative arrangements.” That’s more generous than you need to do, to be honest, but it’s a policy decision that we’ve taken here. So that’s a little bit about carer’s leave and that’s gonna be something that, I think, will crop up is a big part of this stage one crisis stage next week. I don’t wanna scaremonger with that, that’s just the planning we’re doing here.

    I’m just gonna stray as I finish up, I suppose, on some of the questions you may be facing under stage one. Almost start to think towards stage two, the kind of things that you might be reading about, hearing about, that we’ll talk in a bit of detail about next week if people are still interested in hearing from me. That’s redundancy, an unfortunate consequence for any business owner. I don’t think I’ve ever met a business owner that would take any pleasure in contracting their staff in that way, but it may be an inevitability that we need to consider next week. You can start thinking about it as business owners and I can help you with that.

    So there are, of course, consequences to redundancy, including redundancy entitlements. I’ll talk about in a bit of detail next week. There’s also a detailed processor you need to go through. Now, if you are considering that you’re better off getting going on that process as quickly as possible so that you’re not left behind the game, having to start the process after your business’s cash flows really starting to suffer.

    There are alternatives to redundancy, one that you read quite a bit about in the last 24 hours is stand down. So Qantas have stood down a large portion of their workforce and you might be asking yourself, is that available to me? Why is that going on? Why are they paying them some money? That I think they’ve put a lot of people on annual leave from what I understand. A couple of quick answers to that. So stand down is quite a unique situation. There needs to be a stoppage of work that is outside the reasonable control of the employer. And so it doesn’t just mean there’s been a slowdown in work, things are not going well because of the current situation, it’s something beyond that.

    And Qantas would be saying that the government restrictions have created a stand down circumstance for them. They’d also have pretty specific rules around stand down because of the union activity in their business. And those rules probably include rules as to what you pay people during, stand down the basic rule is if you stand down someone because of a stoppage in work, you don’t have to pay them during that period. You might agree to pay them an annual leave or some other form of payment, paying out some long service leave entitlements to reduce the problems for them so you’re not burdening them with not having any pay. But that’s not an obligation. But they’re quite narrow rules around when you can stand down.

    That’s also quite different to a thing called shutdown, which a lot of businesses do around things like Christmas time when business isn’t continuing at levels that make it productive. Shutdown, in those circumstances, typically needs about four weeks’ notice to get it done, it depends on your award and circumstances so you need to take advice on it. But shutdown might not be an option here because of the need for notice and, in any event, you end up paying your employees during that period through their annual leave provisions and so on. So you’re not saving money, but what you might be doing is taking down annual leave balances a bit and shuttering your doors for a while until you can get back up and going.

    Just on that, I think a term that you’re gonna hear more and more over the coming weeks is a thing called mothballing. It’s certainly a phrase I’ve heard over the last couple of days more than I’ve heard before, which is people looking at ways of really taking their business down to the bare bones, pending the recovery, pending some more clarity from the government, and I’ll, talk about mothballing on Monday when we start to look at stage two, which is the planning stage.

    So, guys, that’s it from me in terms of information, if you like, as to what we’re doing. What’s going on at the crisis stage here and how we’re managing that and the kind
    of questions that we might need to answer. They’re also the things our advisers are being asked by lots of people. I can see a lot of questions coming through, though, and I’m just gonna look across to Stu here, who’s gonna help me answer some of those. And if I don’t get to them, what we’ll do is have one of our advisors is gonna respond to you during the course of today in response to the posts that you’ve made.

    Stu: Ed, some general narratives coming through, here’s an interesting one. What’s the advice to employers who have staff on a probationary period?

    Ed: Good question. So two things, I’d say, if you’re following the strategy that I’ve proposed, stage zero, you’re in denial, stage one, you’re in crisis, stage two, you’re in planning. If you’re in stage one still, I wouldn’t rush to look to cut short their probationary period and terminate any employment and so forth. But I would encourage you to get stage two quickly when you can start answering questions like, “Do I need to put a recruitment freeze on? Do I need to consider cost savings across my staff base?” And one of the things you might first consider is this staff on a probationary period might be the people that you look to make redundant first. They won’t have access to redundancy pay in the same way, for example, and it may be cheaper for the business to look at exiting those staff first.

    Stu: Next one, Ed, a really good one. What are my health and safety obligations to employees who are currently working from home?

    Ed: Great question. I’m gonna answer that and then just expand on it a little bit. So health and safety, in principle, you should have done a risk assessment for every employee that has gone home. There are light touch versions of risk assessments that you can do, I would encourage you to do, you need to get advice on how to do that. But essentially what you need to do is go through some basic questions with them about their safety at home. But you do have an obligation to them under Health and Safety laws, even though they’re working at home. And it’s a very good question. These problems could arise that when you’ve got as many people work from home as they are at the moment that are unforeseen.

    The second point I was just gonna say is that whilst you’re in the crisis zone that you really do need to remember that your positive obligation is to keep your employees safe. And you need to be very careful, I suppose, if not certainly not as a baseline following the government recommendations, if you don’t do that someone had COVID at work and you kept them at work, it could cause you real problems going forward.

    Stu: Can businesses force employees to negotiate contracts if working from home works out to be more cost-effective going forward?

    Ed: Force is a word that sort of hurts me a little bit, with a legal background. But it’s, I’d say, this. I think that you can have adult conversations with your employees. And those adult conversations look like explaining that you’ve had a positive response to working from home, for example, you want to consider this as a more permanent arrangement, will your employees consider it? I would urge a bit of caution, you know, we’ve had a really good positive response and buzz from working at home, but I’m also seeing a bit already amongst our staff were saying, “Look, this is quite lonely, actually, this is quite different.” And it’s one thing to say this is good at the end of week one, but let’s see how the employees are reacting to working from home in the weeks ahead.

    Stu: Yeah. If an employee returned to Australia prior to the 15th of March, what obligations do we have in terms of them self-isolating? Do we have to pay them normal pay?

    Ed: So if it’s before the 15th of March and there’s not a positive obligation on them to self-isolate, so the question then becomes, are they telling you that they’re self-isolating notwithstanding government advice? If they’re saying, “The government isn’t telling me to do it, but I’m going to do it anyway,” or, you know, “I haven’t been to one of the risk countries at that point,” meant that you’d self-isolate anyway, then the answer to that is it’s a bit like the employee that doesn’t wanna come to work, you’d be saying, “You’re required to come to work, but if you’re uncomfortable for some reason, then we can talk about unpaid leave.” But you’ve no obligation to pay that. It’s only if the government is stopping them from coming to…sorry, if the government stops them from going, work still no obligation to pay. It’s if you as an employer said, “I don’t want you in our workplace because you’ve been overseas.” And so, if you’re stopping them, there’s a rule of thumb, you should pay. If it’s the government or them, you don’t have to.

    Stu: Another question. Is small business under 15 people always exempt from redundancy requirements for employees?

    Ed: That it’s a good question. To be honest, it’s quite a technical one that I can answer here, but with some reasonably general statements. And the answer is exempt is a broad question. There’s still, even as a small business, obligations on you to treat your staff fairly. And any redundancy process you went through would have to be a fair process. You’d be exposed to unfair dismissal if you just rushed in and made people redundant, for example. So, no is the short answer. It’s a fallacy that small business is exempt from going through fair processes and so forth in respect to redundancy.

    Stu: Yeah. This is an interesting one, too. I have an employee whose partner is ill and has been put into isolation. How do we get them cleared for work and how long can we get them to stay off work for duty of care to other employees?

    Ed: A really good question. Thanks, Karen. I’ll say by the looks of it, thanks, Karen. The answer is this the government advice at the moment is if your partner is ill or anyone close to you is ill then there’s no reason that that person shouldn’t be at work. If they have been confirmed as having COVID-19, then they are required, and having had close contact they’re required to self-isolate, quarantine for 14 days. So if it’s just that their partner is ill then they should be coming to work. If they say to you “I’m not comfortable coming to work,” or then you wouldn’t have to pay them, you might agree absence with them. If you said to them “I’m not comfortable with you coming to work,” that’s your choice, but you’ll have to pay them for telling them not to attend work. Maybe they can work from home during that period to consider things like that, depending on what it is they do for a living.

    Stu: We might have actually somewhat covered this but again it’s a question coming through. Can an employee request to work from home?

    Ed: They can request. Obviously, a lot depends on what it is they do for a living. I think that you’re giving some perspective, you know, the 5,000-odd people that were looking at this yesterday, I think you’d find that there’s a really slim proportion of businesses that do as we happen to do and work in an office. Most jobs, are you gonna struggle to do from home? But let’s presume for a moment this job you can. If they say, “I’d like to work from home, please.” It’s at your discretion because that’s not their ordinary place of work, assuming it’s not, to say yes or no. There may be technological constraints from them doing it, for example. But yeah, we’re living in an evolving situation, it seems that most employers are taking a fairly positive position in that regard.

    Stu: At what point does COVID-19 become a WorkCover plan?

    Ed: I really like this question because it’s such a complex and difficult one. I think it’s a world of claims that could start arising soon. And the situation is this. Imagine someone comes into your work and you haven’t put in place some sort of safe system of work in order to protect them. And they get sick at your work by contracting COVID-19 from someone else at your work. There’s a real risk that that becomes a WorkCover claim. You then get into a wrangle as to whether it’s even covered under Workers’ Compensation policies. And if it’s not, does the employer have liability? So my best guess would be that there will be claims coming out of this over the coming weeks, months, and years as to whose responsibility it was for someone getting sick at work and whether I have responsibility for paying any liability if that comes.

    So I think we’re gonna may just do one more question and then we’ll wrap up. And, again, if there’s any more questions, keep them coming. We’ve got one of our advice team asking…sorry, answering your questions as the day goes on. And, again, if this has been useful to people, shout out and we’ll do it again on Monday. I’ll try and keep the topics new and progressive as well as we all move through this crisis together.

    I say this, I suppose, just as an act of honesty, you know, I’m a business owner going through this crisis at the moment and you guys are business owners going through it as well. I hope that it’s something we can help with. I think that I hope what you’ll find is quite practical advice from what we’re doing and what we suggest you do rather than necessarily the sort of black and white of what the regulations might say. But actually looking how to practically interpret those in a fast-moving situation. That’s my objective to help you out as honestly and fairly as I can. Last question and then there will we’ll wrap up.

    Stu: I’m reading this directly from the questions, Ed. What would your advice be for an employer that has semi-retirees still working on a part-time basis? They can’t work from home as it’s a specialized role. Should I ask them to stand down, given health warnings and their age, or should I leave it to them to decide?

    Ed: Yeah, it’s a really good question and this is one of those ones where, I think, you can confuse what other governments are doing with what advice is here. So at the moment, there’s no strict requirement for people over a certain age to self-isolate, and assuming a semi-retiree is over a certain age here. If they were telling you that they were uncomfortable coming to work, then you might take quite a, I suppose, constructive response to that and look at how you could work with them. But that would be their choice not to work, strictly speaking, therefore, you wouldn’t have to pay them. But if you turned around and said, “I don’t want to take the responsibility of you being here at work, notwithstanding that the government hasn’t told me that you can’t,” and you send them home and they couldn’t work from home, then you’d be responsible for paying them.

    Stu: Okay. Before we wrap up, can we actually drive people again if they have questions to go to our resource hub, which is employsure.com.au/coronavirus?

    Ed: Yep, just in case, you didn’t hear that, employsure.com.au/coronavirus. There’s lots of resources there. We’ll post this video there later today. There’s yesterday’s videos there as well. Lots of other things that we’ll be putting up there over the coming days as we work through this together.

    Stu: Just some questions coming through.

    Ed: Okay.

    Stu: When we’ll be doing the next session?

    Ed: Looking at doing them at the same time on Monday, and the anticipated focus of that session will be on the planning piece. Still starting to look more at the requirement to measure what cost savings you need to make in your business and how you might achieve that over short, medium, and long-term. Thanks, guys. See you Monday.

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