Author: Lehanne Bleumink,  Manager, HR Services, Gold Seal

With the announcement of the stage 2 shutdown by the government this week, where specific businesses have been ordered to close, it’s important to now consider what this may mean for your business if things change further and options available. The Fair Work website updates information as required, and will continue to help guide you to make decisions on the best approach in your business as things develop and change.

While there’s a lot of information available online regarding how to manage your business during these uncertain times, we encourage you to Click Here for a link to the Fair Work website. As this information is updated regularly you can check this link daily for updated information. It includes a number of frequently asked questions with extra guidance added as required.

While the Fair Work site does have a lot of information, here are some options to consider for your business:

Working from home
Many businesses have already prepared and moved to working from home. Consider which roles may be performed from home and make the necessary arrangements regarding equipment required to perform the role effectively. There may be productivity challenges as people ‘learn’ to work from home effectively. You can read the recent article about working from home here.

Where employees are required to record their hours of work (for example, in relation to annualised wage arrangements under the BFI Award), this needs to continue when they’re working from home. Employers and employees are encouraged to discuss how this should occur.

Taking leave
An employer and employee may agree for the employee to be paid their accrued annual or long service leave if it’s not possible to work from home due to the nature of their role.

If your employee has been affected by the shutdown of schools this may be considered an unexpected family emergency. In this instance the employee may be able claim personal leave under the Fair Work Act. As such, your employee may be able to utilise their personal/carer’s leave accruals to cover this period. If they run out of personal/carer’s leave they may wish to utilise alternative leave, such as annual or long service leave.

Reducing hours as an alternative to redundancy
An employer may not be able to sustain paying some or all its employees, an option may be to consider a reduction in hours as an alternative to redundancies. If there are any alternatives, such as this, have a discussion with affected employees to see if they would be willing to do this. If they agree, ensure that any changes to terms and conditions are recorded in writing.

It’s important to remember, reducing a permanent employee’s ordinary hours usually requires the employee’s agreement. Be careful not to pressure the employee into agreeing with the threat of redundancy if they don’t agree.

Redundancy
Following the review of your business, if the only option is redundancy, it is important to follow the correct process or you risk a possible unfair dismissal claim due to it being considered not genuine based on the process followed. The Fair Work Act has requirements that employers have to meet before they can terminate, such as providing notice.

Generally speaking the redundancy process will involve the following:

Step 1: Consult and communicate changes to the employees affected – invite them to a consultation meeting to let them know that, due to the down turn in business, their position may be made redundant. Give them the opportunity to ask questions and to put forward any ideas they may have to avoid redundancy.

Step 2: Find out about notice periods and redundancy entitlements – it is important to provide what it means for them financially if possible

Step 3: Redeployment – discuss any redeployment opportunities that may exist in the business, it is not a requirement to ‘create’ a role for them that doesn’t exist

Step 4: Final consultation meeting – meet with the employee to advise them of the outcome of the redundancy process. Provide your letter of termination of employment, outline that their employment has been terminated on grounds of redundancy.

This information above is of a general nature. The HR Guidance handbook has detailed information, including a step by step process to follow. There’s also a redundancy letter and redundancy checklist template available.

Stand down
If the Government or Department of Health orders you to fully shut down, or part of the workplace to shut down and your employees can’t reasonably work elsewhere, you may be in a position to stand them down. Even if the Health authorities don’t advise you to fully shut down, you can still request that employees work remotely, or shut down the workplace based on health and safety grounds and for any other stoppage of work for which the employer cannot be held responsible.

The requirements under the Fair Work Act for unpaid stand downs can only be accessed when an employee cannot usefully be employed during that period because of a particular circumstance. An employer must show that all steps were taken to find useful employment for the employee/s. This does not mean an employer is bound to place employees in positions that are substantially different to their contracted position or significantly amend the entire system of work. The effect of the stand down is that the employer is not required to pay the employee for that period.

If the business can continue to operate and the employee can still be usefully employed, then you are unable to apply the stand down provisions of the Fair Work Act. Prior to standing down an employee, you should consider any consultation and notice requirements.

The Fair Work link above has further detailed information on stand downs. It is important to note,
Employers cannot generally stand down employees simply because of a deterioration of business conditions or because an employee has Coronavirus/COVID 19.

We encourage employers and employees to work together to find appropriate solutions that suit the needs of individual workplaces. This may include taking different forms of leave, working from home, or taking extra precautions in the workplace.

For assistance on any of your HR/IR requirements – call Gold Seal on 03 9510 5100 or email hrservices@goldseal.com.au