Farmanco CEO Keith Symondson discusses the employment legislation and Covid-19 HERE. In writing below.
Employment legislation and Covid-19
Hi, I’m Keith Symondson. I’m the CEO of Farmanco and this is the next in a line of podcasts we’ll be carrying out on the impact of Covid-19.
Today I wanted to talk about the virus and Australian workplace laws and some practical considerations.
The situation with Covid-19 is evolving day by day and there’s a lot of things we’ve no control over. However, for some of those things we can plan for we really should and as the old saying goes, it is best to plan for the worst and hope for the best.
If you employ people, even if it’s only on a part-time or seasonal basis, you need to be aware of the legislation and how it may impact you. So, I’m going to concentrate on some of the workplace legislation that is of most relevance to agriculture and also mention some practical implications of the spread of the virus and things you need to consider in relation to the people you employ.
I’m going to try and not get too bogged down in detail, but if you do want to learn more there’s a huge amount of information available through the Department of Health, SafeWork Australia as well as at a state level, there’s information from the public health unit websites.
First thing to say is that this situation is unprecedented, and the law doesn’t cover every situation. What I’m doing is going on the information that is currently provided by Fair Work, but this situation is moving so rapidly, that the information I’m looking at now may change, so please note that you may need to get some specialist advice.
Let’s look at some of the implications of the spread of Covid-19 on employment.
The main legislation in this area is the Fair Work Act and health and Safety legislation. You may have full-time, part-time and/or casual employees. What do you need to do if one gets sick with the virus? Under the Workplace Health and Safety legislation, employees who are sick with the virus can’t attend the workplace and they need to get medical clearance from a doctor before returning to work. However, under the Fair Work Act employees need to get their employer reasonable evidence of being ill if they’re asked. However, in practice that may prove difficult in the current circumstances. So full-time and part-time employees can take paid sick leave, and this also applies to employees who have to take time off work to look after a family member.
You really need to make sure that you know how much sick leave any employee has available.
While an employer can’t force an employee to take sick or carer’s leave, in these circumstances the employee’s not entitled to be paid until they’ve used their paid leave entitlements and once they run out of sick leave they can take unpaid leave.
Casual workers, the situation is slightly different and under the Fair Work Act they’re entitled to just two days unpaid carer’s leave.
Just note that if you do have an enterprise agreement or award and obviously have an employee contract and workplace policies, these may be more generous, and you need to make sure that you look at those first.
But if one of your workers is stuck overseas or has returned and has to self-isolate or you’ve got new workers come into the country and they’re having to self-isolate this situation that is new is completely unprecedented and there’s no specific rules in the Fair Work Act around it. Though you may have to come to your own arrangement with staff.
Some of the suggested solutions I’ve seen are probably impractical, such as working from home. Others include getting permanent workers to take sick leave if they’re sick.
If you tell an employee to stay at home in line with the current government advice and their not sick with the virus, the employee should ordinarily be paid. If, however, there’s a government order rather than just advice, requiring them to self-quarantine, the employee is not ordinarily entitled to be paid. Unless they use their leave entitlements.
If the employee is stuck overseas they’re not entitled to be paid unless they use their leave entitlements.
This advice doesn’t apply to temporary workers. Unfortunately, it is very much down to you to work out with those workers how you’ll handle it.
On a practical level, if temporary workers are coming from overseas or potentially soon from interstate as well, they’re going to need to self-isolate and be kept separate from the rest of the workers and you need to consider how you’re going to manage this.
Now, if an employee wants to stay at home as a precaution, they either need to take paid or unpaid leave or come to some sort of arrangement or agreement with you. If they don’t, they’re not entitled to payment. Just bear in mind that if they’ve got reasonable concern about an imminent threat to their health and safety they’re not taking industrial action.
So, what if you want your employees to stay at home as a precaution?
Well, if you direct them not to work due to work health and safety risks but the employee is ready and willing and available to work, you’re generally required to pay them. However, fi they can’t work due to a government order requiring them to self-quarantine, the employee is not ordinarily entitled to be paid.
Now, in the case of casual employees they do not have to be paid sick or carer’s leave and this is because casual employees receive a casual loading instead of paid leave entitlements.
Independent contractors are not employees and they don’t have paid leave entitlements under the Fair Work Act.
Now another situation is employees who can’t attend work because their child’s school is closed due to concerns about Covid-19 and normally they would need to use their paid leave entitlements. However, there is one situation where if the school closes on very short notice and for a short period due to concerns about the corona virus, this is regarded as an unexpected emergency and is actually covered by paid carer’s leave.
Just a couple of other things to consider.
Under the Fair Work Act, an employee is protected from being dismissed because of their temporary absence due to illness and injury.
One final practical consideration is that you need to plan how you’re going to feed all of your workers, if you’ve got an extra five people on your farm and you need to do a big shop. Farmers going in to do their normal shop are being harassed as hoarders because they’re shopping for a large number of people. So, you need to plan how you will do your shop. Talk to your local supermarket. Ask them to put your order to one side. You might need to shop more frequently or get other people to go out and do some of the shopping.
Thank you for listening. We will have other podcasts over the next few weeks as well. Obviously, please take care.