The COVID-19 pandemic has had an unprecedented effect on our community, not only on the sick, but on businesses and the livelihoods of many. During this time of change, we think it’s important for you to understand your employment rights, to know where you stand and what you can do.
The Slater and Gordon Employment Law Team have compiled a list of frequently asked questions to help you navigate through the uncertainty. If you would like more information about your rights as an employee during COVID-19, you should get in touch with our team.
Working from home and self-isolation
If you contract the virus then you must self-isolate at home. You can use any paid sick leave you have accrued. You can also seek to use any annual leave or long service leave that you have accrued. Some businesses have also agreed to grant access to special paid sick leave in certain circumstances. You cannot be required to work from home while you are sick.
Federal, State and Territory work, health and safety legislation entitles employees to refuse to work, or to cease work if they have a reasonable concern that they will be exposed to a serious risk to their health and safety from an immediate or imminent hazard.
If your employer is taking part in the Jobkeeper scheme, then they will have additional powers to ask you to change your work location. If this is the case, see JobKeeper FAQ: My employer is directing me to change my work location, what are my rights?
If you have been directed to go into work, then depending upon the nature of your work, the steps taken by your employer to manage the risk to you of contracting COVID-19 and whether you fall into one of the high-risk categories, you may be able to insist on working from home.
If you are still working, whether that is at your usual workplace or at home, you are entitled to have a safe place of work.
If you think there is an immediate risk of exposure to a COVID-19 infection and your workplace is not providing adequate protections then you should speak with your union and / or workplace health and safety delegate immediately. Alternatively, you can also contact your state or territory’s work safety authority as you may have the right to refuse or cease work if you are concerned about exposure to a serious risk to your health and safety from an immediate or imminent hazard.
There are protections and benefits available to all Australian employees who are suddenly required at stay at home to provide care for their family, such as carer’s leave and flexible work arrangements.
There are no rules around what resources your employer must provide you if they ask you to work from home, but it’s usually in the employer’s best interest to provide you with the tools necessary for you to complete your normal tasks, such as a laptop if you don’t have a computer at home. The Australian Taxation Office has useful guides on claiming deductions for work related purchases and running expenses related to working from home.
Even if you are working from home, your employer is still responsible for your physical and mental health, so your employer should provide all that is necessary to ensure they meet this obligation.
If you believe your employer has not provided you with the necessary resources to properly work from home, or your mental or physical health has been affected while working from home, then we recommend you seek legal advice.
Being stood down or let go
Under the Fair Work Act, your employer must be able to show the following before you can be legally stood down:
- The stand down must be ‘because of…a stoppage of work for any cause for which the employer cannot reasonably be held responsible.’; and
- You cannot usefully be employed in the business, whether working from home, from another location, or doing different tasks on a temporary basis.
If your employer can’t demonstrate the above points then you may have been wrongly stood down and may be able to dispute the stand down and / or claim backpay.
If your employer is taking part in the Jobkeeper scheme, then they will have additional powers to stand employees down. If this is the case, see JobKeeper FAQ: I am being stood down under the JobKeeper Scheme, what are my rights?
Being stood down means that you continue to be employed by your employer, but your employer does not (with some small exceptions) have to pay you. While you are stood down your service with your employer continues to accrue for all purposes under the Fair Work Act. You continue to be entitled to be paid for public holidays as you would have been had you not been stood down.
If you have accrued annual leave then you can request to take that leave and your employer must not unreasonably refuse. If you are not employed under an award, then you can agree to take annual leave on different terms to usual (including for example taking leave at half pay for twice the length of time). If you are employed under an award, you will need to check your award conditions.
When you take annual leave or unpaid leave you are not considered to be “stood down”.
If you’re a full-time or part-time employee and you’ve been let go from your job due to the COVID-19 crisis, you should still able to get standard employment entitlements such as:
- Notice period;
- Annual Leave;
- Long service leave; and
- Redundancy payment.
If you’re a migrant worker on a visa and you’ve been stood down, you should speak to a migration agent or immigration lawyer immediately to discuss the impacts on your visa, including if you hold a 457 or 482 visa.
Certain types of visa holders, such as New Zealand residents, may be entitled to government assistance if they’ve been stood down. If this is the case, you should check the Department of Home Affairs or Services Australia websites for more information.
Employed migrant workers will also have the same rights as all other workers to dispute an unlawful stand down. If you have been stood down, you should refer to What are my rights if I am stood down due to COVID-19? You can also join the ACTU in campaigning for universal special leave and for an extension of the JobKeeper scheme to ensure that all workers, including all temporary migrant workers, are included in government support.
If you are a casual and you are told there is no more work or that you cannot attend your workplace because of the COVID-19 pandemic, you may be eligible to receive the Federal Government’s JobKeeper payment you’ve been employed at your job for over 12 months.
You should also consider whether you have in fact been let go. If you are a long-term casual employee (you’ve been working at your job for more than 6 months, or 12 months for small businesses) you may be eligible to bring an unfair dismissal claim.
Another option is to ask your employer to consider giving you a period of ‘special leave’, to help cover any period of quarantine or isolation. If you remain employed by your employer, make sure your employer knows your availability and of any relevant limitations or restrictions on your working ability that might have arisen because of COVID-19.
You can also join the ACTU in campaigning for universal special leave and for an extension of the JobKeeper scheme to ensure that all workers, including all casuals, are included in government support.
Generally speaking, you cannot do other paid work whilst still being employed by your current employer. You will still be considered employed by your current employer if you have been stood down, agreed to or have been directed to take leave, especially if you are on leave with pay. However, the new JobKeeper scheme now says that you can ask to work a second job if you have been stood down and that your employer must consider it.
Your rights at work
Can I be forced to use my annual leave during COVID-19?No. In general, your employer cannot change your contracted working hours without your consent.
If your employer is taking part in the Jobkeeper scheme, then they will have additional powers to ask you to change your work hours. If this is the case, see JobKeeper FAQ: My employer wants to make a new Agreement to change my work hours what are my rights?
While you can’t be forced to use your long service leave, you might want to access it to avoid a shut down or redundancy situation. Your long service leave entitlements are detailed in either your state’s legislation, or your specific Enterprise Agreement or Award.
Links to all state and territory laws and recent announcements are available on the Fair Work Ombudsman website
Generally, annual leave is there to be used at a time that is mutually agreed between you and your employer. An employer can only direct you to take your annual leave, if that direction is considered to be “reasonable”.
For example, it may be reasonable for your employer to ask you to take your annual leave, if your employer’s business is temporarily shutting down because of COVID-19.
If your employer is taking part in the Jobkeeper scheme, then they will have additional powers to ask you to take your annual leave. If this is the case, see JobKeeper FAQ: My employer wants to make a new Agreement for me to take annual leave, what are my rights?
The JobKeeper Program
If an employer has qualified for the JobKeeper scheme and is entitled to fortnightly Jobkeeper payments for their employee(s), under the new provisions of the Fair Work Act 2009 they can:
- stand an employee down;
- reduce an employee’s hours of work (including reducing the days on which they perform work);
- direct an employee to work from a different location to their usual work location; and
- direct an employee to perform different duties to their usual duties.
These directions are known as ‘JobKeeper enabling directions’.
Before an employer can stand you down under the JobKeeper Scheme, they must be able to show that you cannot be usefully employed for your normal days or hours of work because of changes to the business due to:
- The COVID-19 pandemic; or
- Government initiatives to slow the transmission of COVID-19.
During stand down, you will receive the JobKeeper allowance of $1,500 before tax for the relevant fortnight, even if that payment is above what you normally would have received.
Before your employer can ask you to change your work location, they must first take the following requirements into consideration:
- the new location must be suitable for you to perform your duties;
- if the new place of work is not your home – the new location must not require you to travel an unreasonable distance;
- the new workplace must be safe, having regard to the nature and spread of COVID-19; and
- the new workplace must reasonably be within the scope of the employer’s business operations.
Before your employer can direct you to change your duties, they must ensure that:
- the alternative duties are within your skill and competency;
- those duties are safe, having regard to the nature of the spread of COVID-19;
- where relevant you have the necessary licence or qualification to perform those duties; and
- those duties are reasonably within the scope of the employer’s business operations.
If your employer makes a request to enter into an Agreement to change your hours of work – including to perform your duties on different days or at different times but without reducing your overall number of hours or rate of pay you are required to consider the request, and must not unreasonably refuse it.
If you agree, the new Agreement must be provided in writing.
If your employer makes a request to enter into an Agreement for you to take annual leave, including at half rate of pay, your employer must ensure that you will be left with a balance of at least two weeks paid annual leave.
If you agree to take annual leave at half pay, you will still continue to accrue leave entitlements (such as annual, sick and carer’s leave) as if you were taking annual lave at full pay.
If your employer makes a reasonable request, you are required to consider it and must not unreasonably refuse.
What happens if my employer becomes insolvent because of COVID-19?During the COVID-19 crisis, Australians who are self-employed, or classified as independent contractors will continue to be entitled to a safe and healthy workplace, like all other employees. As such, self-employed or independent contractors must continue to comply with the relevant state or territory's workplace health and safety laws, including any new amendments or enforceable government directions, such as to self-isolate and to practice social distancing.
There are a range of government financial support options to help people who are affected by COVID-19, including accessing your superannuation early, income support, JobKeeper payments and more.
If your employer becomes insolvent, you may be able to claim payment as part of the Fair Entitlements Guarantee (FEG). The FEG is designed to assist eligible employees if their employer goes into liquidation or becomes bankrupt.