Update on Standing Down of Employees

As Victoria enters a new period of stage 4 restrictions, employers must consider the impact on their workplace. We have just received this notification from our lawyers Pointon Partners.

Reliance on JobKeeper Powers

For those employers receiving JobKeeper payments, now may be the time to rely on the extraordinary powers granted to employers, allowing them to:

• direct employees to undertake alternate duties;
• direct employees to work at an alternate location;
• stand down an employee without pay (completely or partially) for any period in which they can’t be usefully employed;
• request employees to take accrued annual leave; and
• reach an agreement with employees that annual leave will be taken at half pay.

Standing down employees that can be usefully employed

If a non-JobKeeper employer must shut down part or all of its operations during the lockdown and its employees cannot be usefully employed, the employer may be able to rely on the ‘stand-down’ provisions contained in the Fair Work Act 2009 (Cth).

Section 524 of the Act provides that an employer may stand down an employee without pay when:

• there is a stoppage of work for any cause for which the employer cannot reasonably be held responsible; and
• the employee cannot be usefully employed.

It is a requirement that there actually be a stoppage of work within the employer’s business outside the employer’s control and not merely just a slowdown in the patronage of the business.

OH&S Considerations during the Pandemic

WorkSafe Victoria introduced the temporary Occupational Health and Safety (COVID-19 Incident Notification) Regulations 2020 which commenced on Tuesday 28 July 2020.

Previously, employers were not required to notify WorkSafe of an infectious disease in the workplace, unless immediate inpatient treatment was required or the disease is the cause (or suspected cause) of a death.

The current state of the disaster means that timely notification of potential workplace transmission is critical for the effective management of COVID-related health and safety risks.

The Regulations require that WorkSafe be notified if:

• An employer becomes aware that an employee or independent contractor engaged by the employer (and any employees of the independent contractor) has received a confirmed diagnosis of COVID-19, and has attended the workplace within the infectious period (being 14 days prior to receiving the confirmed diagnosis of COVID-19 and until clearance from isolation has been received); or
• A self-employed person has received a confirmed diagnosis of COVID-19 and has attended the workplace within the infectious period (being 14 days prior to receiving the confirmed diagnosis of COVID-19 and until clearance from isolation has been received).

Those found to have breached the Regulations could be lumped with a fine of up to $39,652 for an individual or $198,264 for a company.

Worker permits for certain industries

As of midnight from the 5 August 2020, Victorian workers from permitted industries will be allowed to travel to or from work, even during the 8:00 pm to 5:00 am curfew.

Employees will be required to carry a worker permit, signed by them and their employer when they travel to their workplace. By signing the permit, each party will be making certain declarations, as set out below:

By signing the permit, the EMPLOYER:

• Attests that the workplace is compliant with the directions of the Chief Health Officer and the Occupational Health and Safety Act 2004, all reasonable steps have been, and will continue to be taken, to maintain a safe working environment for the employee, and has a COVIDSafe plan in place;
• Attests that the employer is a Permitted Employer engaged in providing a Permitted Service;
• Attests that the information provided on this permit is a true representation relating to a current employee and their employment details;
• Acknowledges that the nominated representatives may be contacted if deemed necessary to confirm these details; and
• Acknowledges the information provided by the employer in the Permitted Worker Permit is true and correct, and that presenting false, misleading or fraudulent information may incur penalties.

By signing the permit, the EMPLOYEE:

• Attests that their name, address, work hours, place of work, and employer, as contained in this Permitted Work Permit are true and correct that presenting false, misleading or fraudulent information may incur penalties;
• Acknowledges that the nominated representatives may be contacted if deemed necessary to confirm these details and provides consent to the disclosure and collection of this information;
• Understands the wording in this Permitted Work Permit relating to Diagnosed Persons and Close Contacts and agrees to not attend the Work Premises if either of these terms applies to the Employee’s circumstances and will notify the Employer immediately if this occurs; and
• Understands that if they develop symptoms or potential symptoms of COVID-19 they are not to attend or remain at the Work Premises and will immediately notify their employer.

POINTON PARTNERS are able to assist employers with relevant issues including a stand down, COVID-specific OH&S requirements and the availability of work permits for certain industries.

If you are not an APAN member, please join and we can assist you with a free service 07 55930360 or info@apanetwork.com.  Alternatively, you can reach out to POINTON PARTNER LAWYERS direct phone 03 9614 7707.