The COVID-19 is a health crisis that has caused extensive disruption to our way of life. Lockdown placing restrictions on travel and cautious spending habits, it is unlikely that the economy will see an immediate recovery to previous activity levels. This has had a notable impact upon workplace law as many employees have been stood down or made redundant. In response, the Fair Work Commission has acted to vary industry awards and will continue to conduct hearings for cases of unfair dismissal.

Redundancy and being ‘stood-down’

Many businesses have been shut down for being a non-essential business, or a result in reduced demand due to restrictions on movement. It is likely that the unemployment rate will take a long time to recover as a result of this environment of fear and uncertainty.

If you have been made redundant or stood down, it is important that you seek legal advice on whether the decision complied with the basic principles of workplace law. Unlawful termination of contracts of employment or enterprise agreements and unfair dismissal is a key issue in most employment law cases.

Unfair Dismissal

Fair Work Commission (‘Commission’) is conducting hearings and conferences for general protections and unfair dismissal but by way of phone or videoconference. If you have believe that you have been unfairly dismissed, you must apply to the Commission within 21 days of your dismissal taking effect. It is recommended that you seek legal advice prior to lodging an application to explore other avenues of action you could take.

Award Implications

The Fair Work Commission is in the process of varying industry awards to allow for more flexibility during the COVID-19 pandemic. On 8 April 2020, the Commission made determinations to vary 99 awards to provide for unpaid pandemic leave and great flexibility for annual leave for employees. The changes to these awards provide for two weeks of unpaid pandemic leave and the ability to take twice as much annual leave at half their normal pay if their employer agrees.

These measures will are temporary and are in effect until 30 June 2020. The leave does not need to have been accrued and is not pro-rated for employees who do not work full-time. If you are an employee looking to take unpaid pandemic leave, you should know your rights under this award as this should not affect other paid or unpaid leave entitlements or require you to use all your paid leave first.

JobKeeker Provisions

Not surprisingly, there has been a surge in applications to the ATO for relief and JobKeeper payments (which are set to be released in May 2020). If an employer is eligible to receive these JobKeeper payments they have an optional right to give an employee a ‘JobKeeper enabling direction’ that entitles them to payments. If an employee agrees to the terms of the JobKeeper payments, this does not diminish their existing rights under workplace laws.

The employee must continue to be paid the same base rate, or the applicable penalty rates, and any other allowances that apply to the hours they work. An employee may be asked to work additional hours, and these hours need to be reasonable. An employee can refuse a request to work, and if the only reason for a request to work additional hours is to ‘match’ the amount of the JobKeeper payment, this is not likely to be a reasonable request. Under general protection provisions of the Fair Work Act, it is unlawful to for an employee to work unreasonable additional hours, or require this to be a condition in order to receive the JobKeeper payment.

Further Information

It is important to be fully aware of your protections as an employee under workplace laws and your employment contract. If you would like more information on how we can assist you with your matter, do not hesitate to contact us on 9963 9800 or at law@etheringtons.com.au. Read more on our blog here for further more information and analysis on the restrictions and rules in place during COVID-19.