Employment issues during COVID-19

State and Federal government have introduced new restrictions impacting how some businesses can operate. As a result many workplaces are closed, impacting employees.

Does my employer have to pay me if I’ve been stood down due to coronavirus?

Where the Commonwealth or a State or Territory Government or officer makes an order, determination or direction that is enforceable under the law (an enforceable government direction) and which prevents an employee from working, an employer is not required to pay the employee (unless the employee uses paid leave entitlements).

This could occur, for example, where an enforceable government direction closes down a particular work site (and there is no way for employees to work remotely), or where an enforceable government direction prevents a particular employee from working (e.g. because they are required to self-isolate). In these instances, the employer is not required to pay the employee (unless the employee uses paid leave entitlements).

You may be eligible for a government payment. More information is available at Services Australia.

Can my employer direct me to use my paid leave entitlements?

If your employer’s business closes down temporarily due to COVID-19, this may be a “stand down” or a “shut down” situation. If you are not on personal leave, or another period of leave which is authorised by your employer (eg annual leave or some other type of leave), it is possible that your employer may not have to pay you if it can demonstrate that employees cannot usefully be employed during that period because of a stoppage of work for a reason for which the employer cannot reasonably be held responsible. Check any clauses that are relevant to shut down or stand down in any applicable modern award, enterprise agreement and your contract. For more information contact JobWatch or the Fair Work Ombudsman.

I have to self-isolate as I have tested positive to COVID-19. I’m a casual worker so I don’t have paid leave or any income. What can I do?

It is true that casual employees are not entitled to paid personal/carer’s leave. As a casual, you may be eligible to receive a payment from the Australian Government if you cannot work due to enforced isolation or because you are caring for children. This is subject to residence rules, your income and assets.

One of the following payments may apply:

Youth allowance: if you are younger than 22

Jobseeker allowance: if you are older than 22

Sickness allowance: if you have paid work but you are temporarily unable to work because of coronavirus.

More information is available at Services Australia.

My school-aged kids are at home because their school’s closed. Am I entitled to take carer’s leave to look after my kids?

 If you are a permanent employee (full-time or part-time) you are entitled to access your paid carer’s leave if you are absent from work because you need to provide care or support to a member of your immediate family or household who is ill, injured or affected by an unexpected emergency. Regardless of whether you are working from home or working in your usual workplace, if you wish to take paid carer’s leave you will need to comply with the usual notice and evidence requirements.

If you are a casual employee you are entitled to 2 days unpaid carer’s leave per occasion (this also goes for permanent employees who have exhausted their paid carer’s leave entitlements).

If you have run out of paid carer’s leave but you still have some other form of accrued paid leave (eg annual leave or long service leave) you may ask your employer to access that paid leave.

If you are not already working from home, consider discussing this option with your employer. As a minimum, parents of school-aged children who are permanent employees and have at least 12 months’ service with the same employer are entitled to request flexible work arrangements. Employers can only refuse if they have reasonable business grounds. Check your modern award, enterprise agreement or employment contract in case you have more generous benefits about flexible work arrangements.

I’ve got a new job but the start date has been delayed because of coronavirus. Can my new employer do that?

If you have a written or verbal contract of employment as a permanent employee (full-time or part-time) with an agreed start date and your employer asks you to agree to a delayed start date, these are your options:

  • You agree to the delay, which means you agree to a variation of your contract; or
  • You don’t agree. If you don’t agree, your employer should still pay you from the commencement date even though you haven’t started working. If your employer doesn’t pay you, you may write to the employer and complain about not being paid. If your employer withdraws the offer of employment because of your complaint, consider lodging a general protections dispute application with the Fair Work Commission. Ultimately you have 6 years within which to file an underpayment of wages claim. However, you should also consider the possibility that the employer may choose to terminate your employment before the start date if you don’t agree to a delayed start date. Provided they pay you in lieu of your minimum notice period, they will probably not be in breach of the employment contract.

If you have an agreement to start as a casual employee, your prospective employer can legally delay your start date due to a lack of work.

I don’t feel safe going to work but my employer won’t let me work from home. What are my rights?

You have the right to refuse to do unsafe work. However, remember that all employees are obliged to follow their employer’s lawful and reasonable directions. If your employer’s direction that you must attend work and not work from home is, in the circumstances, lawful and reasonable, you must obey it. Each set of circumstances will be different.

JobWatch and the Fair Work Ombudsman are available for more information.

Last updated: 2-April-2020