COVID-19 Employer 
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Preparing your employees for unexpected change in your business is difficult. Clear documentation will assist you and your employees during this challenging time and protect your business. As a Business Australia member, you can download these free legally-prepared documents to help you navigate some common scenarios.

Your free toolkit includes:

  • Letters to employee advising stand down
  • Letter offering re-engagement after a COVID-19 redundancy
  • Leave Without Pay policy
  • Letter directing a change of hours, days or location

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Support documents for your business

For more than 190 years, Business Australia has stood by business owners, from the smallest start-up to the largest corporation. The team at Australian Business Lawyers & Advisors are experts in workplace, corporate and commercial law. Our free toolkit provides legally prepared documents you can download instantly and customise to protect your business as well as helpful resources including:
 

Warning: COVID-19 and using this letter

Standing down employees without pay is usually seen as a last resort.

Employers usually exhaust employees taking available paid leave such as annual leave before considering standing down without pay and as with many other COVID-19 related decisions you should consider balancing affordability, culture and engagement with the law before deciding what to do.

Natural disasters and pandemics, such as the current COVID-19 pandemic, can place businesses in circumstances where they are unable to usefully employ an employee or group of employees.

It is critical that there is a stoppage of work to trigger a stand down. That is, all or part of the business must cease operations in order to lawfully stand employees down without pay.

So, you need to ask yourself:

  • Is there a stoppage of work?
  • Is it for a reason reasonably outside your control?
  • Can the affected employees be employed to perform useful work?

You cannot stand down an employee if there is useful work available within the ambit of their usual job and employment contract (focus on the employee’s role and job description to make this assessment). Useful work does not have to be the work that the employee ordinarily performs but needs to be genuine productive work not made up work.

This commentary is intended to help you understand your options and decide what is right for your business. Please contact Australian Business Lawyers & Advisors if you have specific questions or need legal advice on the issues facing your business during COVID-19 including whether or not you can lawfully implement a stand down. 

Commentary

Jobkeeper Enabling Stand Down Direction If an employee cannot be usefully employed for their normal days or hours because of changes to business attributable to Coronavirus (and associated government initiatives), an employer may make a JobKeeper Enabling Stand Down Direction (Stand Down JED) which directs an employee to work a reduced number of hours (including nil hours).

Remember, employees subject to a Stand Down JED may ask to engage in reasonable secondary employment, training or professional development. Employers must consider and must not unreasonably refuse these requests.

This document is designed for employers in receipt of the JobKeeper payment. It is not appropriate for employers who are not eligible for JobKeeper.

Disclaimer: This document has been prepared by HR Advance to help assist employers during the Coronavirus period. While due care has been taken in preparing this document, no responsibility is accepted for the accuracy or suitability of the information contained. All liability is expressly disclaimed for any loss or damage which may arise from any person relying on, using or acting on any information contained therein. We recommend seeking legal advice should you need something specific to your circumstances. 

Warning: COVID-19 and using this letter

Standing down employees without pay is usually seen as a last resort.

Employers usually exhaust employees taking available paid leave such as annual leave before considering standing down without pay and as with many other COVID-19 related decisions you should consider balancing affordability, culture and engagement with the law before deciding what to do.

Natural disasters and pandemics, such as the current COVID-19 pandemic, can place businesses in circumstances where they are unable to usefully employ an employee or group of employees.

It is critical that there is a stoppage of work to trigger a stand down. That is, all or part of the business must cease operations in order to lawfully stand employees down without pay.

So, you need to ask yourself:

  • Is there a stoppage of work?
  • Is it for a reason reasonably outside your control?
  • Can the affected employees be employed to perform useful work?

You cannot stand down an employee if there is useful work available within the ambit of their usual job and employment contract (focus on the employee’s role and job description to make this assessment). Useful work does not have to be the work that the employee ordinarily performs but needs to be genuine productive work not made up work.

This commentary is intended to help you understand your options and decide what is right for your business. Please contact Australian Business Lawyers & Advisors if you have specific questions or need legal advice on the issues facing your business during COVID-19 including whether or not you can lawfully implement a stand down. 

Who can use this correspondence

This document can be used by all employers throughout Australia, except the following excluded employers:

  • Non-constitutional corporation employers in Western Australia
  • State public sector employees (i.e. employees of a Minister, the Governor, or the Crown) and
  • Local government employers — except in Tasmania and Victoria.
  • Excluded employers may however, wish to use this document, but they should first obtain legal advice.

Commentary

When is an employer permitted to stand down an employee?

The Act permits an employer to stand down an employee when the employee cannot usefully be employed because of any of the following circumstances:

  • Industrial action which is organised or engaged in by the employees of the business; or
  • A breakdown of machinery or equipment for which the employer cannot reasonably be held responsible; or
  • A stoppage of work for any reason for which the employer cannot reasonably be held responsible. For example, this may include a natural disaster ie. Cyclone, flood, bushfire etc.

An employer is not required to pay an employee during a stand down period.

What if the business has an industrial instrument or contract of employment containing stand down provisions?

If there is an industrial instrument (for example, an award or enterprise agreement), or a contract of employment that applies to an employee’s employment that contains a provision relating to stand down, the provision in those instruments may apply. If you are unsure of whether a provision in an industrial instrument or a contract of employment relating to stand down applies, you should seek specific advice.

However, such a provision will only apply where it permits an employer to stand down an employee where the employee cannot be usefully employed, due to the reasons listed above (being industrial action, breakdown, or a stoppage of work). If the provision allows an employer to stand down an employee for a reason other than that listed above, an employer will not be permitted to stand down an employee for that reason.

What if the industrial instrument or contract of employment contains other pre-conditions?

It is not uncommon for an industrial instrument or contract of employment, which allows an employer to stand down an employee, to provide other pre-conditions to be met before an employee can be stood down.

Common pre-conditions include the requirement to consult with employees, or to provide employees with a certain amount of notice.

Therefore, employers must ensure that they comply with the provisions of a stand down provision in any relevant industrial instrument or contract of employment before implementing a stand down.

Use of other leave accrual entitlements during stand down period

This letter provides employees with the option of making an election to use any accrued leave entitlements (such as annual leave or long service leave) during the stand down period.

Whilst an employer is not required to pay an employee during a stand down period (subject to any terms to the contrary in an industrial instrument or contract of employment), employees may elect to use any accrued entitlements during the period to ensure that they continue to receive payment.

Any approval or non-approval for the taking of leave accruals should be in accordance with any applicable workplace policy, and the relevant legislation.

While this letter may be used to stand down employees who cannot usefully be employed because of industrial action, it should not be used for employees who are taking industrial action as payments to employees taking industrial action are prohibited under relevant legislation.

Commentary

Any unpaid stand down carried out prior to the implementation of the new JobKeeper Rules may not have been lawful. A pre-jobkeeper stand down can only be conducted for reasons outlined in s524 of the Fair Work Act. Please seek legal advice if you are concerned about the risks associated with having not paid your staff during a stand down where that stand down may not have been strictly in accordance with s524.

This letter will assist you to formally move from a s524 stand down to a JobKeeper enabled stand down. Alternatively, this letter will assist you to end the stand down and enable your employees to return to work.

This document is designed for employers in receipt of the JobKeeper payment. It is not appropriate for employers who are not eligible for JobKeeper.

Disclaimer: This document has been prepared by HR Advance to help assist employers during the Coronavirus period. While due care has been taken in preparing this document, no responsibility is accepted for the accuracy or suitability of the information contained. All liability is expressly disclaimed for any loss or damage which may arise from any person relying on, using or acting on any information contained therein. We recommend seeking legal advice should you need something specific to your circumstances.

Commentary

Employees who were employed on 1 March 2020 and have subsequently been let go can now be re-engaged by the same eligible employer and they will be eligible to receive the $1,500 a fortnight JobKeeper Payment.

This effectively means employees who have been laid off since 1 March 2020 can be put back on the books. However, the employer can only pay an employee who are re-hired from the fortnight they are re-engaged. An employer cannot claim retrospectively for employees re-engaged

Employers should be aware that it is still not yet clear whether under this re-engagement:

  • Employers will have a right to claw back termination, or redundancy, payments previously paid to the employee (this seems very unlikely);
  • the employee has to be employed on the same terms and conditions of employment as they were on before their previous employment was terminated for the employer to receive the JobKeeper Payment; and
  • the termination and re-hire will break continuous service.

This letter will assist you to re-engage an employee that was made redundant due to COVID-19. The employee will need to accept your offer of employment for you to re-engage them and provide them with the JobKeeper payment. You should ensure they sign a new contract of employment prior to commencement of work. 

If an employee is currently in their notice period or are yet to be paid their redundancy payment you should seek legal advice. Employees in these circumstances are most likely entitled to be paid their notice, redundancy pay and then have the option to accept or reject your offer of employment. You should not withdraw notice or redundancy payments without legal advice.

This document is designed for employers in receipt of the JobKeeper payment. It is not appropriate for employers who are not eligible for JobKeeper.

Disclaimer: This document has been prepared by HR Advance to help assist employers during the Coronavirus period. While due care has been taken in preparing this document, no responsibility is accepted for the accuracy or suitability of the information contained. All liability is expressly disclaimed for any loss or damage which may arise from any person relying on, using or acting on any information contained therein. We recommend seeking legal advice should you need something specific to your circumstances.

Who can use this policy

This policy can be used by all employers.

Commentary

Employers may wish to provide leave without pay in certain circumstances, for example, where an employee has exhausted an entitlement to paid leave. This Leave Without Pay Policy will assist employers to outline when they will be prepared to provide such leave to employees.

More important information

The policy also helps to make clear to employees what is expected of them if they take unpaid leave, for example, how often they need to correspond with their employer and what information they need to provide. This will assist employers who are considering whether to treat an employee as having abandoned their employment. It is recommended that all arrangements for leave without pay are confirmed in writing.

You may wish to supplement this policy with other leave policies.

Commentary

If an employer reasonably believes it is necessary to continue the employment of one or more employees, the employer can also give a JobKeeper Enabling Direction (JED) which directs an employee to:

  • not work on particular days they would ordinarily work; or
  • work for a lesser period than they would ordinarily work on particular days; or
  • perform any duties within their skill and competency (provided that the duties are safe, reasonably within the scope of the employer’s business operations and the employee is competent and licenced to perform those duties); or
  • work somewhere other than their usual place of work (including their home) (provided that the location is suitable for the employee’s duties, does not require the employee to travel an unreasonable distance and performance of the employees’ duties at the place is both safe and reasonably within the scope of the employer’s business operations).

The intention is that these directions are temporary in nature and apply (at a maximum) for the duration of the JobKeeper payments.

This document is designed for employers in receipt of the JobKeeper payment. It is not appropriate for employers who are not eligible for JobKeeper.

Disclaimer: This document has been prepared by HR Advance to help assist employers during the Coronavirus period. While due care has been taken in preparing this document, no responsibility is accepted for the accuracy or suitability of the information contained. All liability is expressly disclaimed for any loss or damage which may arise from any person relying on, using or acting on any information contained therein. We recommend seeking legal advice should you need something specific to your circumstances. 

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Need more support?

To talk to our Workplace Advice Team in relation to redundancies or standing down an employee. As a member you can access a free advice call.