COVID-19 Work Health and Safety: Employers – do you have an obligation to protect workers?

COVID-19 Work Health and Safety: Employers – do you have an obligation to protect workers?

Under work health and safety laws, all employers have a duty to ensure that their employees’ health and safety are protected as far as reasonably practicable. This means employers are required to take reasonable steps to ensure that the workplaces are without health and safety risks. With the current COVID-19 pandemic, it is important that employers provide as much information as possible about health and safety risks associated with COVID-19, ways to reduce those risks and ensure that they have a system in place to monitor and minimise the risks.

You can:

  • restrict employee business travel but you cannot restrict personal travel
  • direct employees to work from home if it is necessary to close your workplace for a period of time
  • stand down employees in circumstances which the Fair Work Act permits
  • direct employees to take annual leave provided that the applicable modern award or enterprise agreement permits.

You should:

  • stay up to date with information released by state and federal health departments: www.health.gov.au
  • keep employees up to date with health information
  • provide hygiene facilities
  • ensure that you change the way you interact with customers, for example, at shops:
    • “no cash” and contactless card payment only policy install signs to remind customers comply with the social distancing rules
    • install barriers so that customers do not stand too close to your workers
    • consider directing employees to work from home if it is not possible to maintain the social distancing rule
    • develop a contingency plan for the worst case scenario – when one of the employees tests positive.

Going forward, there will be disputes about whether COVID-19 is a workplace injury. This will depend on the circumstances of infection. It will be difficult for one to assess whether the infection occurred in the work place.

As an employer, you should also consider what your obligations are under the workers compensation insurance policy. In order to mitigate risks, you should ensure that you have best practices for work health and safety.

Further information

If you require assistance with understanding your obligations and minimise potential exposure to liability, please do not hesitate to contact one of our experienced employment and litigation solicitors on 02 9963 9800 or [email protected].

Are electronic signatures the new norm? COVID-19: Executing Contracts and Deeds.

Are electronic signatures the new norm? COVID-19: Executing Contracts and Deeds.

With increased safety precautions of social distancing and restricted business opening hours in place, many employees are working from home. One consequence is that many projects may stall if there is an inability to sign contracts that require renewal or documents to complete transactions. This raises the question of how company contracts can be signed remotely and what are the risks. Are electronic signatures a solution?

What is an electronic signature?

A broad definition is that it is a visible representation of a person’s name or mark, placed by a person in a communication or on a document to indicate their assent. This may range from a typed name of the sender, a scanned image of a handwritten signature or clicking “I agree”. Each has a varying level of security and encryption, which may be vulnerable to copying and tampering.

General agreements

Under common law, an agreement can be in electronic form and executed electronically. There is additional validation from the Electronic Transactions Act 2000 (NSW) if the signature complies with specific conditions relating to the identity of the person, reliability of the signing method, and consent of the person to whom the signature is given. The law does not provide guidance on how electronic and attestation of documents should take place, and there still remain circumstances in which parties and lawyers are unwilling to accept electronic signatures.

Execution of documents by companies – section 127 of the Corporations Act

There are specific requirements for companies signing agreements. Ordinarily, a common seal can be affixed to the document and be witnessed by two directors or one director and a secretary. It can be signed without a seal but again by two directors or one director and a secretary. In the current circumstances, there are ways to manage the risks surrounding electronic execution of company documents. The people requiring signatures should obtain evidence that the person signing the document is actually authorised to sign the document electronically. The parties should ensure that there are no limitations as to the mode of execution by checking the board minutes, corporate constitutions and powers of attorney, and ensuring that the ASIC records and the identities of the directors and secretaries are verified. Companies should consider appointing a power of attorney as a power of attorney can electronically execute agreements on behalf of a company.

Conveyancing contracts

The Conveyancing Act permits deeds to be created in electronic form, and to be electronically signed and attested. The Act also states that documents relating to land interests can be electronic and signed electronically. It is important to note that the operation of other requirements in the Conveyancing Act will continue to apply to contracts or deeds whether they are electronic or on paper. It is important that you obtain proper legal advice before you enter into a conveyancing contract.

Execution of deeds

The law is settled that a document can be witnessed electronically. This will only be valid if the witness was physically present at the time the electronic deed was electronically signed by the signatory and the witness electronically signed the same document at the same time as the signatory. Unfortunately, this means that attestation cannot be conducted by teleconference or signed at a later time, presenting the same logistical requirements as witnessing a paper document.

Conclusion

In the absence of clear authority, we recommend a conservative approach to minimise risk and prevent one or more parties from suffering loss. If a document can only be executed electronically, then try avoiding a deed and instead use an agreement because a deed does not require a consideration (payment) but an agreement does. Therefore, you can look at whether consideration has been given in order to determine validity of a document.

Further information

It is important to be fully aware of your obligations and options in your contractual arrangement during difficult times such as COVID-19. If you would like further information regarding the impact on your business or simply corporate and contract law advice, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or via our contact page.

More information about COVID-19 can be found here: www.health.gov.au

 

Covid-19: Event Cancellations

Covid-19: Event Cancellations

In the age of COVID-19, the Australian government have implemented strict ‘social distancing rules’ to slow the spread of COVID-19. In addition to a 100-person limit on non-essential indoor gatherings, for gatherings less than 100 people there must be 4 square metres provided per person in an enclosed space. Due to the rapid increase of infections, it is expected for these rules to become stricter in the future.

As a result of the social distancing rules, many events have to be cancelled until the spread of the virus is under control, including:

  • Weddings;
  • Corporate conferences; and
  • Birthday celebrations.

If an upcoming event is impacted, event holders may choose to postpone the event until a later date and provide a credit note for the payments made previously for the event. However, some may seek to rely on a no-refund and/or force majeure clause to keep the deposit paid by the customer.

Force Majeure

A common clause found in an event contract is a force majeure clause. This clause relieves a party from performing its contractual obligation due to unforeseeable circumstances such as natural disaster, energy failure and lockout. In event contracts, it allows venues or event holders to cancel an event with no liability. Force majeure clauses are not implied contract terms. Therefore, it is important that you carefully review what the clause says. The clause may be silent as to what happens to the payments already made. This could mean that the event holder can cancel the event and keep the deposit already paid.

Event Cancellations: Australian Consumer Law – Unfair term

If your event must be cancelled or postponed due to the social distancing rules and the venue tries to rely on certain terms of the contract, such as a no-refund clause, and forfeit monies already paid by you, you can argue that the relevant clause is unfair under the Australian Consumer Law. When a contract is a standard form contract prepared by the business and the terms are one sided and was given to you on a take or leave it basis, the contract (or at least some of the terms) could be set aside.

In the case of Ferme & Ors v Kimberley Discovery Cruises Pty Ltd [2015] FCCA 2384, the Federal Circuit Court found that a term in a cruise ship contract that disentitled passengers to any compensation or refund in circumstances of an unexpected event or prevailing inclement weather was held to be unfair.

If you are able to successfully argue that the relevant terms are unfair, the event holder will then be required to establish that that clause was necessary to protect their legitimate commercial interests. The test for legitimacy appears to be whether the clause was essential at the time the contract was entered, not at the time of the event cancellation.  If the event holder fails to prove the legitimate need, then the clause will likely be deemed void.

Further, amounts spent to accommodate customers or to alleviate their losses after the event will also likely be irrelevant to the question of whether the clause was fair.

Further information

If you have any questions or wish to seek advice in regards to an event cancellation, please contact our office on 02 9963 9800 and we will more than happy to help. In the meantime, we hope that you stay safe and healthy as Australia navigates COVID-19.

Read more of our articles about COVID-19 here.

COVID-19: Government assistance to Small Businesses and Investors

COVID-19: Government assistance to Small Businesses and Investors

COVID-19 is having a monumental impact on our economy and on Australian businesses. Given the constantly updating situation, it is easy to be confused about what the government is doing to assist through mechanisms such as tax relief and economic stimulus measures. Rumours and misinformation are rife.

In this article we break down what the Federal and NSW governments are doing to protect jobs and support Australians via different tax relief measures. The most notable relief measures are set out below.

New South Wales

The NSW government has introduced a series of economic stimulus actions including $1.6 billion in tax cuts:

  • Reduction in payroll tax liability by 25% for businesses with wages of no more than $10million.
  • For businesses who lodge and pay payroll tax monthly, there is no payment required for March, April and May 2020 –for businesses with wages of no more than $10million.
  • The payroll tax-free threshold will increase from $900,000 to $1million for the 2020/21 financial year.

(See Revenue NSW: https://www.revenue.nsw.gov.au/taxes-duties-levies-royalties/payroll-tax for more information).

  • A waiver of a range of charges for small businesses including bars, cafes, restaurants and tradies.

Federal

The first package announced on 12 March 2020 by Prime Minister Scott Morrison detailed a $17.6 billion stimulus package. See below a quick outline of some of the stimulus measures:

  • Asset write off scheme: The instant asset write off scheme threshold has been increased to $150,000. The turnover threshold has also been increased to $500 million. This scheme is set to operate until July 2020.
  • Investment incentive: Introduction of a 15 month investment incentive to encourage and support business investment and growth (See https://treasury.gov.au/coronavirus/business-investment for more information).

The second stimulus package announced on 22 March 2020 worth $66 billion brought the total economic support from the federal government to a figure of 10% of GDP. This package includes:

  • Amendments to the Corporations Act 2001 and to the insolvency law to provide assistance for businesses to deal with unforeseen happenings that arise as a result of the coronavirus. (See our article on COVID-19: Temporary changes to Insolvency Law).
  • Cash flow assistance for employers: The Government is providing up to $100,000 to eligible small and medium sized businesses and not-for-profits that employ people. Small and medium-sized business entities with aggregated annual turnover under $50 million and that employ workers are eligible. (See https://treasury.gov.au/coronavirus/businesses for more information).
  • Apprentices and trainees: Eligible employers can apply for a wage subsidy of 50% of their apprentice’s or trainee’s wage for 9 months from 1 January 2020 to 30 September 2020. (See https://treasury.gov.au/coronavirus/businesses for more information).

The third stimulus package announced on 30 March 2020 provides cash assistance to employers. This package includes:

  • JobKeeper payment: whilst not yet law, the Government has announced its intention to provide wage subsidies of $1,500 a fortnight per employee to businesses whose revenue has decreased by more than 30% as a result of COVID-19. The intention of this payment is to help employers keep their skilled employees and thus ensure a quick return to business. (See https://www.ato.gov.au/general/gen/JobKeeper-payment/ for more information).

Land Tax:

The Federal Government is collaborating with the states to potentially offer tax cuts for landlords who grant rent relief to their tenants. The Morrison government is considering providing investment property owners income tax relief in return for reducing rent or waiving it for a period of time.

Further information

If you would like further information, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or via email at [email protected].

Etheringtons Solicitors extends our deepest sympathies to those experiencing hardship or health concerns during this difficult time. Further information about COVID-19 can be found at: www.health.gov.au.

 

COVID-19: Employers. What are your options?

COVID-19: Employers. What are your options?

Working from home has become the predominant way businesses function given the recent effects of COVID-19 closing many workplaces. But what happens to the employees of a business where the essence of the work requires employee attendance and working from home is not feasible, for example in retail or hospitality? In this article, we explore what legal options employers have during this challenging time.

Standing Down

Normally, an employer can direct its employees to take annual leave during slow business seasons such as Christmas and New Year. What about in circumstances that are beyond the employer’s control and the business has to close?

Under the Fair Work Act 2009, an employer may ‘stand down’ an employee without pay during a period in certain circumstances if that employee cannot ‘usefully be employed’. An example of certain circumstances include industrial action, breakdown of machinery or a cause for which the employer cannot reasonably be held responsible.

A stand down happens when an employer sends employees home if there is no useful work for them to do due to the nature of the business and for reasons beyond an employer’s control. Whether an employee can be ‘usefully employed’ is a question to be determined on fact by having concern to the circumstances that warrant the stand down. For example, a retail company may stand down a worker due to a natural disaster as they are unable to be ‘usefully employed’ during this period of time.

Under this provision in the Act, an employer is not required to pay the employee during the stand down period. Full-time and part-time employees will still accrue annual and sick leave.

The repercussions of a stand down can be difficult for employees as they may be deprived of income for a long period of time. It is important that employers review provisions regarding stand down in modern awards, enterprise agreement or employment contracts to make sure that they comply with the relevant provisions.

What if you can still operate but are struggling with the cash flow?

Most employers would consider redundancy. However, you may consider agreeing with your employees to:

  • temporarily reduce their salary;
  • send employees on part paid leave; or
  • send employees on leave without pay
    so that employees can keep their jobs and businesses stay afloat.

Further information

It is important to be fully aware of your obligations and options as an employer during these difficult times. Likewise, employees should be fully briefed on their rights under their employment contracts when they face employment uncertainty. If you would like further information, please do not hesitate to contact one of our experienced employment law solicitors on 9963 9800 or via email at [email protected].

More information about COVID-19 can be found here: www.health.gov.au