McInnes Wilson Lawyers: COVID-19 workforce management tips
25 July 2020 marks six months since Australia registered its first confirmed case of novel coronavirus (COVID-19), detected in a returned traveller.
In those six months, Australian businesses have faced unprecedented upheaval in regards to their ability to operate, as State and Territory Governments grapple with how to stop (or at least slow) the spread of COVID-19.
The businesses which we have seen manage these challenges the best are those that have:
- Made safety the focus of their operations.
- Identified and utilised government assistance to their full benefit.
- A clear plan for managing their labour needs in the short, medium and long term.
Ensure your business is COVID safe
Designing a COVID-safe workplace is the cornerstone of a business’s ability to trade through the pandemic.
Australian workers (and the wider public) are protected by strict workplace health and safety laws which require business owners to do all things reasonably practicable to ensure the safety of their workers and persons coming into contact with their workplace. This extends to businesses ensuring that their workers are not, so far as is reasonably practicable, at risk of contracting COVID-19 whilst at work.
At a minimum, Safe Work Australia provides that all businesses should:
- have a plan to respond to the safety issues created by the pandemic
- review their exposure and infection control policies and procedures, actively promote social distancing, good hand and respiratory hygiene and increase cleaning of common areas within the work environment
- consult with their workers and/or their health and safety representatives, and take into account directions and advice provided by health authorities.
- keep monitoring the COVID-19 situation as it develops, relying on information from authoritative sources such as public health authorities.
Businesses which we have seen succeed in Australia are those which have focused on how to deliver their services and operate their business as safely as possible, allowing for greater business continuity in difficult trading time.
Leaving aside the strict legal obligations owed to workers, all businesses share a moral obligation to protect the economies in which they operate, as well as the wider community from the spread of COVID-19. Businesses can do this by ensuring that their workplaces are structured so as not to become a hub for transmission.
If businesses do not lead this charge, State and Territory governments have shown a willingness to step in with trading restrictions designed as blunt instruments to slow the spread of Covid-19.
Identify government assistance
The State and Federal Governments have implemented a raft of measures to assist businesses operating in Australia and who employ Australian employees to survive the current pandemic.
These measures range from:
- The Federal Government’s JobKeeper Program which provides eligible employers with a wage subsidy of $750 per week, per eligible employee (this amount will be scaled back from December 2020).
- Support for small to medium businesses to retain and train apprentices and trainees (the Federal Government offering to subsidise up to 50% of apprentice and trainee wages).
- Cashflow boosts for employers of between $20,000 and $100,000 to eligible businesses delivered through credits in the activity statement system, when they lodge their activity statements up to the month or quarter of September 2020.
Business which we have seen succeed best during the pandemic, have been those who have been quick to identify the government assistance available to them, and where possible restructured their labour force and operating patterns to align to the benefits afforded by those programs.
Developing a clear plan for your labour requirements
To succeed in these difficult trading times, it is imperative that businesses have a clear plan for managing their labour levels both in the short, intermediate and long term, and review these daily.
The businesses which we have seen succeed best in these difficult times, are those who understand how to implement and effect workplace change.
We discuss these skills below.
One of the fundamental (and often forgotten) ways employers can effect change in their workplace, during these difficult times is by negotiating with their employees.
As the employment relationship is contractual in nature, an employer and employee can agree to vary the terms of the employment contract in order to respond to the current crisis.
This can range from agreeing to:
- reductions in salary or wages.
- reduced hours of work.
- undertake different duties.
- taking paid or unpaid leave, including at pro rata rates.
The only matters that an employer and employee cannot agree upon, is for the employee to be paid less than their minimal award or legislative entitlements (for example, to be paid under their minimum award wage).
Job Keeper flexibility
As part of the JobKeeper Scheme, the Federal Government introduced a number of temporary flexibility provisions to the Fair Work Act 2009 (Cth), which employers who fall within the scheme may use to temporarily restructure their workplaces.
These flexibility powers include the ability to:
- reduce an employee’s hours, including to nil hours per week (i.e. a “stand down direction”);
- request an employee to perform different duties (so long as the requirement is reasonable and the employee has the skills necessary to perform the work);
- request an employee to work at different locations; and
- request that an employee take annual leave.
To be eligible to participate in the JobKeeper Scheme an employer must meet the relevant reduction in turnover requirements.
We recognise that it is not always possible for an employer and its employees to agree to the variations necessary for a business to survive the current crisis. In those cases, employers may be required to consider reducing labour levels through redundancy.
When undertaking a redundancy process in Australia, it is important that businesses:
- genuinely consult with their affected employees about the likely changes; and
- consider any reasonable redeployment opportunities.
Further, all Australian employees are entitled to redundancy payments (based on length of service), after reaching 12 months of service.