Can I or Can't I - HR FAQ's during Covid-19

In these times of rapid change as we respond to Covid-19, there are a lot of employers operating like cowboys but eventually, they will be caught out by Fair Work and the lawyers that are going to have a field day in a post coronavirus world.   Operating ethically and legally is just as important now as it ever was so just because someone else is doing something, it doesn’t mean you should.  So let’s take a look at what’s happening and what you can and can’t do as employment law currently stands.

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​CAN I……?
There are some common questions we are being asked about what employers CAN do given the very different world in which we are all trying to operate.   Many of these questions relate to utilising employees in different roles to those for which they were employed, reduction of hours, minimum work periods, and directing teams to take annual leave.  

The Fair Work Commission is reviewing Modern Awards in order to provide greater flexibility in the workplace as the Covid-19 situation develops.  To date, the Clerks, Hospitality and Restaurant Awards have all had variations made and it is likely that similar temporary changes will be applied to 103 additional Modern Awards. Changes so far have included more flexibility around assigning employees to different tasks outside of their normal classification, a greater ability for employers to direct employees to take a period of annual leave and permission for some employers to reduce working hours without employee agreement. 

Each of the changes in the three Awards comes with its own nuances related to the relative industries so please contact any of the awesome HR Professionals at HR Staff n’ Stuff for help if you are uncertain as to how it applies to your business.  We will keep you updated on changes to other Awards as they become available. 

WHAT ELSE CAN YOU DO?

• You can delay the start date of a new employee even if contracts have been signed, but a new start date needs to be agreed up on by you both.  If they don’t agree – and you have no work available (you have had to shutdown or vastly reduce hours for all employees), you may have no option but to terminate the employment and pay out any minimum notice periods applicable.
• You can legally delay the start date of any casual employee.
• You can rehire an employee whose role was made redundant or terminated on or after 1 March 2020 and they will be covered by the JobKeeper wage subsidy.  
• You can direct your employees to work from home.  This would be considered a lawful and reasonable direction based on your employer’s obligations under work health and safety legislation.  Be mindful of any OHS considerations are you are still liable and, as we’ve stated often, have your work from home policies and agreements in place.
• You can direct your teams to work on projects that will place your business in a position of strength and readiness when things start to go back to normal – whatever that new normal looks like is anyone’s guess.  For example, we highly recommend you direct your team to perform  key knowledge capture activities for all roles within the business.  That is, for every role you should have a ‘how to’ manual prepared – what they do, how they do it, resources required, skills required, training that would advance the role.  Or how about those long term projects that keep being put on the back burner as urgent work that generates immediate income takes precedence?  These projects may be the key difference between your business surviving Covid-19 or not as they will present the opportunity for your team to find different and more agile ways of operating.  Again, you may be able to utilise JobKeeper and avoid stand downs or redundancies if all other work has halted,  but please contact any of our HR Professionals for guidance to ensure you are operating lawfully. 

BUT YOU CAN’T…..

• You can not have your team change their hours so that they are now working after hours or weekend shifts and not apply the overtime rates or loadings. You definitely cannot ask them to work public holidays for their usual rate of pay – this not an excuse to fail to pay entitlements.  
• You can not unilaterally cut hours of work without at least providing the required notice and without valid reason.  Unless your Award allows you to do so, you can only reduce full time and part time hours of work by agreement.  You can discuss the reality of your business situation with your team – if hours aren’t reduced by everyone, you will have no choice but to reduce headcount through redundancy.  Engage your team and you will likely gain support as most will want to support measures that will sustain their job for the long term.
• You can’t stand down all or some of your employees simply because you have a slow down in work.  It is only permitted where there is a work stoppage where you do not have useful work for employees to undertake.  The Federal Government’s announcement of the JobKeeper package changes things somewhat in relation to how you might be able to utilise employees so they remain engaged with and connected to your business.  For further guidance about stand downs and the implications of the JobKeeper subsidy, please contact the HR Staff n’ Stuff team.
• You can not keep any of the JobKeeper amounts.  If you receive the government payments, a full $1500 per fortnight must be paid to each employee even if their regular wage is less than this level.
• Unless your Award has been updated to include wider provisions, you can’t force an employee to use up their leave entitlements.

LAWFUL AND REASONABLE
Remember, all directions to employees must be lawful and reasonable – we can not say this enough.  As many of us were told as kids – just because someone else is doing it, it doesn’t mean it is right.  So if you are in any doubt as to what you can direct your employees to do or how you might give that direction, jump on the phone or send us an email and we will provide you with the most up to date information and help you avoid any post Covid-19 legal action.  Government directives and Fair Work Commission responses are being updated regularly so please check on the latest advice before proceeding with any changes to your workplace.

* Parliament is sitting today, 8 April 2020, and there may be some adjustments to the above information.  We will keep you informed of any changes and how they may impact your business.  

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