What should an employer do if a worker has COVID-19? 

If your worker is confirmed to have COVID-19 you need to follow the health advice from the National Coronavirus Helpline on 1800 020 080 or your state or territory helpline.

What needs to be done to meet your work health and safety duty will depend on your circumstances. You should contact your state or territory WHS regulator for specific advice on your situation.  

However, if you know a worker is confirmed to have the COVID-19 virus, you must make sure the worker does not return to work while they are infectious.

If you notice a worker showing other signs they may be unwell (e.g. frequent coughing) and you think they should not be at work, you should follow your usual workplace policies and procedures. This may include directing the worker to go home.

If you decide to require workers to stay away from work, you may still be obliged to pay them. You should contact your workplace advice line for advice. TABMA Members can call 1300 564 309 and Hardware Australia's Members should call 1300 391 426. 

Generally, you must:

  • Identify the hazards. For example: Is the worker still at work? Were they at the workplace while they may have been infectious or have they been identified by a public health authority as a ‘close contact’?
    • A ‘close contact’ is someone who has been face-to-face for at least 15 minutes, or been in the same closed space for at least 2 hours, as someone who has tested positive for COVID-19 when that person was infectious.​
  • Assess the risks. For example: how much contact did the worker have with others or the workplace while possibly infectious?
  • Control the risks. For example: If the infected worker had limited contact you may be able to evacuate that area, ensure it is deep cleaned, and send home workers who had contact with them in accordance with any health advice. If the worker had contact with several others or large parts of the workplace you may also need to direct all workers to self-isolate for 14 days.
  • Review the control measures. You need to regularly review control measures to make sure they are working. For example, if other workers get sick this may mean your current control measures are not working as intended.
  • Consult with workers and other duty holders. It is important to consult with your workers at all stages of this process and keep in touch with workers who may be isolated away from the workplace. You must also consult with other duty holders (For example, other businesses you share communal spaces with).

You may be asked to help health authorities trace close contacts, in which case, the Office of the Australian Information Commissioner has published guidance on when disclosing personal information may be permitted.


What are the state and territory health helpline and employer should contact if there is a confirmed case of COVID-19? 

  • New South Wales  - Healthdirect – 1800 022 222
  • Queensland - 13 Health – 13 43 25 84
  • Victoria - Coronavirus Hotline – 1800 675 398
  • South Australia - SA COVID-19 Information Line – 1800 253 787
  • Tasmania - Tasmanian Public Health Hotline – 1800 671 738
  • Western Australia - Use the National Coronavirus Information Helpline - 1800 020 080
  • Australian Capital Territory - Healthdirect – 1800 022 222
  • Northern Territory - Use the National Coronavirus Information Helpline - 1800 020 080

Is a Worker case of COVID-19 a notifiable incident? 

See below for information for persons conducting a business or undertaking (PCBUs) on the approach to COVID-19 incident notification laws in each jurisdiction, including details on how to notify when required.

For further information, please contact the WHS regulator in your jurisdiction. 

Australian Capital Territory
PCBUs should notify WorkSafe ACT if it is suspected that a person may have contracted COVID-19 and requires treatment in hospital or meets the prescribed serious illnesses from within the workplace. Notification must be made immediately after the PCBU becomes aware of the incident.

Notification is made by submitting the online incident notification template or by calling the ACT Government call centre on 13 22 81.

Notifications must be made regardless of whether ACT Health Protection Service is already aware of the case.


New South Wales

PCBUs must notify SafeWork NSW of a case of COVID-19 arising out of the conduct of the business or undertaking that requires the person to have immediate treatment as an in-patient in a hospital, and any confirmed infection to which the carrying out of work is a significant contributing factor, including any infection that is reliably attributable to carrying out work that involves providing treatment or care to a person, or that involves contact with human blood or body substances.
Notification is made by calling SafeWork NSW on 13 10 50.

A mine operator or PCBU regulated by the NSW Resources Regulator must notify the NSW Resources Regulator when they become aware of a case of a worker or other person at the mine or petroleum site. 

Notification is made by calling the Resources Regulator hotline on 1300 814 609. Provision of personal details of the affected person is not required.

Notifications must be made regardless of whether NSW Health is already aware of the case.


Northern Territory

PCBUs should notify NT WorkSafe where:

  • a person dies from COVID-19 and the infection arises out of the conduct of the business or undertaking 
  • a person requires immediate treatment as an in-patient in a hospital for COVID-19 and the infection arises out of the conduct of the business or undertaking

Notification is made by calling NT WorkSafe on 1800 019 115.

Notification is required regardless of whether the NT Department of Health is already aware of the case. 


Queensland

In the event that there is a confirmed case of COVID-19, Queensland Health will be notified by the medical professional who confirms the diagnosis. 

To avoid duplication and confusion in what is a challenging time for industry, Workplace Health and Safety Queensland (WHSQ) will not enforce any legislative requirement for workplaces to separately notify WHSQ. 

However, WHSQ will continue to respond to all information received regarding potential non-compliance in workplaces and where necessary secure compliance where workers are exposed to unacceptable WHS risks. WHSQ will continue to monitor this arrangement and liaise with Queensland Health as events unfold. 

South Australia

PCBUs must notify a case of COVID-19 to SafeWork SA, if the case can be reliably attributed to a workplace exposure, and either 
results in treatment by a doctor within 48 hours of exposure to a substance (e.g. airborne contaminants, human substances), or
death.

Notification to SafeWork SA can be made using the incident notification form which can be submitted online or emailed to notifications.safework@sa.gov.au. Alternatively, call SafeWork on 1300 365 255. SafeWork SA may request confirmation of incident details in writing within 48 hours of your telephone notification.

Notification is required regardless of whether SA Health is already aware of the case.


Tasmania

PCBUs must notify WorkSafe Tasmania where there is a death of a person due to COVID-19 or a person contracts COVID-19 and the death or acquisition arises out of the conduct of the business or undertaking, and the illness requires immediate treatment as an inpatient in a hospital or it is confirmed that work is a significant contributing factor.

Notification is made by calling WorkSafe Tasmania on 1300 366 322, by submitting WorkSafe Tasmania’s incident notification form, or on a PCBU’s normal incident notification template that meets the standard of WorkSafe Tasmania.

Notification is required regardless of whether the Tasmanian Department of Health is already aware of the case.


Victoria

Duty holders must notify WorkSafe Victoria when they become aware of a case of COVID-19 where it is the cause (or suspected causes) of a death at a workplace.

Incident notification procedures are detailed here on the WorkSafe Victoria website, Guide to incident notification

Notification must be made regardless of whether the Victorian Department of Health and Human Services is already aware of the case.


Western Australia

Employers, principal contractors and contractors must notify a case of COVID-19 to the Department of Mines, Industry Regulation and Safety, WorkSafe where it is the cause (or suspected causes) of a death at a workplace.

Employers, principal contractors and contractors are not required to notify non-fatal incidents of COVID-19 to the Department of Mines, Industry Regulation and Safety, WorkSafe as WA Health are already notified of confirmed cases by medical practitioners.

Notification is made by calling 1800 678 198. 


Commonwealth

PCBUs should notify Comcare of all confirmed COVID-19 cases that are work related and arise from the business or undertaking of the PCBU. Notification must be by the fastest possible method and as soon as the PCBU becomes aware of the incident. 

Notification to Comcare can be made using the incident notification form which can be emailed to notify@comcare.gov.au or submit an online notification. Alternatively, call Comcare on 1300 366 979. When notifying by phone, you may be asked to provide notification in writing within 48 hours. If calling outside office hours, you can be redirected to the on-call inspector. 

Notifications must be made regardless of whether the relevant Health agency is already aware of the case.
 


What are my Workplace Health and Safety Obligations? 

Work Health and Safety (WHS) Laws require employers to ensure (so far as is reasonably practicable) the health and safety of their workers and others in the workplace.

Under these laws, employers must have measures in place to eliminate and manage the risks associated with the Coronavirus (COVID-19) outbreak.

Read how you should manage the current situation in your workplace.

Alternatively, contact our Workplace Advice Line to receive expert support in understanding your obligations. 


How can I support the safety of my employees? 
  • Consider establishing a customary non-contact greeting (e.g. bowing) and display posters promoting the non-contact greeting so visitors feel at ease.

  • Consider installing high-efficiency air filters.

  • Consider increasing ventilation rates in the work environment, including negative pressure ventilation.

  • Consider installing physical barriers, such as clear plastic sneeze guards.

  • Promote frequent and thorough hand washing by employees, customers and other visitors,

  • Make alcohol-based (i.e. containing at least 60% alcohol) hand sanitising dispensers available in prominent places around the workplace and ensure they are regularly refilled.
    • Important: Hand sanitisers should not be provided as the only hand hygiene option as there are times when soap and water should be used instead (e.g. when hands are visibly dirty or after going to the toilet).
  • Make sure that employees, contractors and customers have access to facilities where they can wash their hands with soap and water.

  • Regularly change soap or use liquid pump soap.

  • Ensure an adequate supply of paper tissues is available throughout the workplace.

  • Provide closed bins for hygienic disposal of used tissues.

  • High touch surfaces (e.g. counters, desks and tables) and objects (e.g. telephones, keyboards) are wiped with disinfectant regularly.

  • Areas where there is public access (including door knobs and handles) will also require frequent additional cleaning and disinfection,
  • Ensure infection control procedures are reviewed in consultation with cleaning staff and they have access to suitable personal protective equipment (PPE). For example:
    • gloves
    • gowns
    • professionally fitted masks
    • eye protection
    • respirators.
  • Adequate supplies of cleaning equipment and necessary PPE are available. 
  • Actively promote good hand hygiene in bathroom and kitchen amenities, and good respiratory hygiene in prominent places where close customer or worker contact occurs.

  • Display a poster prompting employee and others to maintain good hand hygiene and good respiratory hygiene. 

  • Discourage employees from using other workers’ phones, desks, offices, or other work tools and equipment, when possible.

  • Restricting the number of personnel entering isolation areas.

  • Establishing alternating days or extra shifts that reduce the total number of employees in a facility at a given time, allowing them to maintain distance from one another while maintaining a full onsite work week.

  • Discontinuing nonessential travel on high density vehicles (e.g. planes). 

  • Discontinuing nonessential travel to locations with ongoing COVID-19 outbreaks.

  • Depending on the nature of the work, training employees who need to use PPE how to put it on, use/wear it, and take it off correctly, including in the context of their current and potential duties. 

  • Establish whether the business will accept an early return to work if the symptoms do not show within a period of less than two weeks. 
  • Establish a discipline regime for non-compliant workers. For example:
    • clear verbal warnings
    • re-training
    • written warnings that further non-compliance is unacceptable and could result in disciplinary action
    • show cause proceedings 
    • dismissal

What happens if my employee has Coronavirus symptoms? 

All employers should be taking precautions to actively manage their business’ exposure to health and safety risks arising from coronavirus.

If an employee tells you that they:

  • are feeling unwell and may be suffering flu-like symptoms
  • have been in contact with someone who has or may have been in contact with someone who has Coronavirus, or
  • have travelled to an area affected by the Coronavirus (such as China),

they should be directed to follow the above Australian Government advice and seek medical advice immediately. 

The health and safety of staff and those they come into contact with must be an employer’s top priority. This should dictate the approach an employer takes to responding to employees that may have come into contact with Coronavirus.

It is also important to direct employees to declare any upcoming or recent travel (including areas through which the employees have transited) so that employers can assess the prospect of risks to health and safety arising from staff movements generally; and provide employees with simple information regarding how they can maintain good hygiene. 

What type of leave do my employees take? 

If an employee informs you that they have contracted the Coronavirus or need to care for a member of their immediate family or household who has contracted Coronavirus, then they will be entitled to take personal leave under the National Employment Standards (NES).

Personal/carers leave is not available where an employee has come into contact with a person who has Coronavirus or where an employee returns from travel to a high-risk area as outlined above, but is not yet sick themselves.

This is because, to qualify for personal leave, an employee must be “not fit for work” because of an illness or injury affecting them. It is unlikely that this pre-requisite will be met by persons who are not yet diagnosed as ill but merely require isolation.

Do I need to pay my employees who are isolated, but not diagnosed with Coronavirus? 

Given the likely inability to provide personal leave in cases where employees require isolation but have not been positively diagnosed, in most cases, employers should look to utilise practical solutions to address the employee’s absence.

For example:

  • In some cases, employers could permit the employee to work from home. This ensures a level of productivity is retained and will allow the employee to continue to be paid wages during the isolation period.
  • When working from home is unavailable, employers may wish to provide discretionary paid leave to employees so that they do not suffer from a loss of pay during the isolation period.

As an employer, it is worthwhile considering whether discretionary options such as those above can be accommodated. Employers will need to balance the short-term cost associated with these measures against the longer-term benefits that arise both for the employment relationship and the national interest. 

What if I am unwilling or unable to make payments to an employee who needs to be isolated (but is not diagnosed with Coronavirus) during this period? 

For some businesses, it might not be feasible to pay employees who are required to self-isolate.

If an employer is unwilling or unable to pay employees whilst in isolation and an employee maintains that they are able to work, then employers face a difficult scenario: the employee says they are fit to work, but the employer has concerns that the employee is not fit to work without posing unacceptable safety risks to the workforce. 

The best means of resolving this is to direct the relevant employee to undergo testing if testing is available.

Once the test is undertaken, if the employee is cleared, they are able to return to work (best practice would dictate the employer pays the employee for the relevant period). If the employee tests positive, then they can be permitted to take personal leave for the duration of their absence.

What if testing is unavailable for employees in isolation? 

The advice from our workplace relations partners, Australian Business Lawyers & Advisors is:

  • It’s a requirement of any employment contract that employees are required to carry out their employment without endangering the safety of other persons.
  • In order to be paid for their service, employees need to be “ready, willing and able” to work.

These principles will govern an employer’s approach to employees who are told to isolate in circumstances where testing is unavailable (or refused by the employee).

Two scenarios are likely to arise:

Scenario one: In some cases, an employee may have had levels of contact with persons exposed to Coronavirus which means the risk to safety presented by the employee’s presence at work is materially greater than other employees. By way of example, if an employee has just returned from mainland China or has been living with a person who has contracted Coronavirus, the employee will likely present significantly greater risks to the workforce than most other workers. 

Scenario two: In other cases, an employee might have had a level of contact that causes an employer some anxiety but not material concern – by way of example, the employee’s child might have attended a school where there was a Coronavirus diagnosis or the employee may have returned from travel to an area designated by the Australian Government’s health advice as ‘moderate risk’. Whilst there is some risk associated with contact with the relevant employee, the risk might not be materially greater than that posed by other workers who have been to supermarkets, gone to a football match, etc.

In the first scenario, a level of debate is likely to arise. However, provided the employer can demonstrate the relevant employee poses a sufficiently material risk to health and safety that cannot be mitigated, there is a reasonable basis for the employer to contend that the employee must stay away from work on unpaid leave (or annual leave if requested) until such time as the material risk decreases.

In the second scenario, it is unlikely that an employer will have a legitimate basis to direct an employee to stay away from work without pay. Rather, if the employer is directing the employee to remain away from work, the employer will need to pay the employee for the relevant period.

Employers should consider supporting the national objective of quarantining potential infected citizens and suggest that employers explore all avenues to avoid loss of pay for those employees who do the right thing.

What about casual employees? 

Casual employees are not entitled to sick leave. This means that a casual employee who is diagnosed with Coronavirus may be required to refrain from presenting to work without additional payments.

Furthermore, where shifts to casual employees are reduced either on account of business downturn or because the employee has been required to isolate (due to contact or recent travel), the employees will not be entitled to payment during this period. 

Redundancy vs Stand Down: What is the Difference? 

No one wants to lay their employees off. But your desire to do the right thing and keep workers employed could backfire on you.

Joe Murphy, Managing Director – Workplace at Australian Business Lawyers & Advisors, says many employers believe that standing down employees is an easier or ‘nicer’ option than redundancy. It preserves the person’s employment, continuity of service is maintained, and leave continues to accrue.

Continue reading the article here

How to make an employee redundant? 

Choosing which employees need to be made redundant can be a difficult decision for employers, and the consequences of not following an appropriate process can be both costly and time-consuming. 

The team at Business Australia have put together some steps to assist you in this process should you be required to make redundancies. To read more about this click here

What if an employee needs to look after their child(ren) due to the school closures? 

An employee may take carer’s leave to provide care or support to an immediate family or household member, where the care or support is required because of an unexpected emergency.

At this time, the closure of a school in the current climate will amount to an unexpected emergency.  Where an employee qualifies for carer’s leave, they may access their accrued paid personal/carer’s leave.

An ‘immediate family member’ is:

  • a spouse or former spouse, de facto partner or former de facto partner, child, parent, grandparent, grandchild or sibling
  • a child, parent, grandparent, grandchild or sibling of the employee's spouse or de facto partner.
  • a ‘household member’ is any person who lives with the employee.

The employee should be paid as if they were taking personal (sick) leave, the minimum requirement being payment at base rate of pay for the employee's ordinary hours of work in the period.

Employers may ask for reasonable evidence to justify the absence on carer’s leave. For example, a school announcement about a shutdown.

What if an employee needs to look after someone that is ill? Including a child or family member who is ill or requires support due to the coronavirus? 

An employee may take carer’s leave to provide care or support to an immediate family or household member, where the care or support is required because of a personal illness, or personal injury.

Provided the family or household member is suffering from an illness, the employee would be entitled to access their accrued paid personal/carer’s leave.

The rules set out above in respect of who qualifies as a family or household member apply, as do the rules for payment and evidence.

What if an employee needs to look after their child(ren) due to school closures but has no personal leave left? 

You have a few options. You may decide to pay the employee as an exercise of discretion. Absent this, the employee could take leave without pay (subject to any leave without pay policy you have) or they could access another form of paid leave such as annual leave or accrued long service leave.


Fair Work Commission Varied 99 Modern Awards - 9th April 2020

This provides an entitlement to unpaid ‘pandemic leave’ and the flexibility to take twice as much annual leave at half pay.

In simple terms, an employee is now entitled to take up to two weeks’ unpaid leave if they are required, by government or medical authorities or acting on the advice of a medical practitioner, to self-isolate and is consequently prevented from working, or is otherwise prevented from working by measures taken by the government or medical authorities in response to the COVID-19 pandemic.

Australian Business Lawyers had previously advised in their COVID-19 FAQs, employees in this situation are not entitled to personal leave under the National Employment Standards as they are not ill or injured.

The FWC understood and accepted this but wanted to ensure that employees could access unpaid leave in this situation as of right rather than simply leave it to the employer's discretion.

This new provision should cause little concern as it reflects what employers have been doing to date and now formalises the process for accessing unpaid leave which we anticipate will largely concern self-isolation.

Some important things to note are:
  • The grant of leave is up to two weeks and as such may be shorter.
  • The leave must commence before 30 June 2020.
  • An employer can request evidence that would satisfy a reasonable person that the leave is taken for a reason given in the clause.
  • An employer may agree to give an employee more unpaid pandemic leave but is not required to.
Separately the awards were also varied to allow an employee to take double annual leave at half pay. This arrangement was put into a limited number of modern awards last week.

Note these amendments will affect, the following awards we have on scope: 
  • General Retail Industry Award 2010
  • Timber Industry Award 2010
  • Clerks - Private Sector Awards 2010

Fair work Commission Statement - 1st April 2020

Proposed new pandemic leave

On 1 April 2020, the Fair Work Commission (the Commission) issued a Statement external-icon.png outlining its intention to update 103 awards during the coronavirus pandemic. The proposed updates would provide:

  • an entitlement to unpaid pandemic leave
  • flexibility to take annual leave at half pay.

The proposed variations would operate until 30 June 2020. The list of the awards the Commission proposes to vary is in paragraph [108] of the Statement external-icon.png.

Interested persons can respond to the Commission’s provisional views by lodging a written submission by 4pm on Monday 6 April 2020. If opposing submissions are received, the Commission will hold a hearing on Wednesday 8 April 2020.

If no opposing submissions are received, the Commission won’t hold a hearing and will finalise the matter.

We will monitor these developments and provide more information as soon as possible. Please check our website regularly.


Timber Industry Award 

Thursday, 26 March 2020 - Over the past week, the Fair Work Commission (the Commission) has issued several decisions varying multiple Awards, emanating from the 4-year modern award review process. This includes a variation to the Timber Industry Award below is the variation. 

Timber Industry Award 2010
 These changes come into effect from the first full pay period on or after 1 May 2020.
 To view the determination click here
To view the decision click here

Modern Retail Award 
No current updates 

Clerks Private Sector Award 
Thursday, 26 March 2020: 
Today, employer and union groups have made an urgent consent application to the Fair Work Commission that will make temporary amendments to the Clerks - Private Sector Award 2010 in response to the crisis facing Australian business in the wake of the COVID-19 pandemic. 

These amendments are due to a commendable and unprecedented level of cooperation between the Australian Chamber of Commerce and Industry (ACCI), Ai Group, the Australian Council of Trade Unions and Australian Services Union (with ACCI represented by Australian Business Lawyers & Advisors throughout the process). 

Amendments
The key amendments to the Award, which will be included in a schedule attached to the Award, are outlined below: 

Date and Operation
The amendments will operate until 30 June 2020, unless extended.

Operational Flexibility 
This amendment allows employees to be directed to perform all duties that are within the employees skill and competency (even if they are lesser duties) regardless of their classification provided the duties are safe and the employee is qualified to perform them, without the reduction of pay. 

Working from Home
These amendments have been broken down to address part-time and casual employees under working from home arrangements:

Spread of hours: Where an employee requests to work from home, and the employer agrees, the spread of hours has been expanded to 6am-11pm Monday-Friday and 7am-12.30pm on Saturday.  

Part-time employees: Are required to be rostered for a minimum of two hours working from home and become entitled to overtime rates worked in excess of 38 hours per week, or an average of 38 hours per week on a roster system. 

Casual employees: May be engaged for a newly reduced minimum of two hours work when working from home. 

Agreed temporary reduction in hours by a majority in the workplace

This allows full-time and part-time employees in a workplace, or part of a workplace, to agree to temporarily reduce ordinary hours for a specified period for the whole workplace or relevant part of it, by a 75% majority vote by employees.  The employees must vote on whether to reduce hours or not and if there is a union involved in the workplace, they must be informed. Additionally, the FWC must be notified of the vote pursuant to the process outlined in the Schedule to the Award.

The reduction in working hours is limited to a 25% reduction or less. 

For example,  An employee who is employed for five days per week can have their days of work reduced to four days per week pursuant to this clause. For a part-time employee working four days per week, they could have their days reduced to three days per week.  

To illustrate the 'part of a workplace', if you have separate arms of your business, for example, office staff vs call centre staff, the employees can vote to reduce hours in office section but not the call centre section.
Where hours are reduced, the employee’s ordinary hourly rate will stay the same. The employee will still continue to accrue entitlements at their ordinary hours of work prior to the agreement to reduce hours.   
The amendment does not prevent an employer and an individual employee agreeing to reduce hours or to have an employee move temporarily from full-time to part-time hours of work, with the corresponding reduction in the weekly wage.

Annual Leave
Employers and employees may agree to the taking of up to twice as much annual leave at a proportionately reduced rate, including during any close-down.

An employer may direct an employee to take any accrued annual leave, by giving at least one week’s notice, or any shorter period as agreed. A direction to take annual leave shall not result in an employee having less than two weeks of accrued annual leave remaining.

Close-down
Where an employee is required to take annual leave during a close-down of operations or part of its operations, the employer must give at least one week’s notice. 

During a close-down, an employee can take all of their annual leave and then will be given leave without pay for the remainder of the shutdown. 

Any close-down of operations must not extend beyond 30 June 2020. However, these amendments to the Award do not impact upon the operation of section 524 of the Fair Work Act 2009 where an employee stands down employees for reasons beyond the control of the employer where there is a stoppage of work. 

These are temporary amendments to the Clerks - Private Sector Award 2010 in response to the crisis facing Australian business in the wake of the COVID-19 pandemic. If you have any questions about how this will impact your business, please call the workplace relations team. 


Transport & Logistics Award
No current updates 

Commercial Sales Award 
No current updates 
 

Preparing your employees for remote working, leave from the workplace or temporary business closure? Protect your business and people with clear documentation. Simply follow the links to download below. 

  Letter to Employee Advising Stand Down

  Leave Policy 

  Mental Health Policy

  Working from Home Checklist

  Working from Home Policy 

  Ergonomics Checklist 


Each document has been prepared by Australian Business Lawyers & Advisors, number one Workplace and Employment Team of the Year at the Australian Law Awards (2019, 2018 and 2016) and is included in your membership. This information is not to be distributed. 
TABMA Aust