COVID-19 – Employer Obligations Under the Fair Work Act
Know Your Obligations
Termination
Employees engaged on a casual basis can be terminated with immediate effect. Prior to terminating an employee you need to consider whether the employee is truly a casual. Seek advice from the BTL team in the event of uncertainty to avoid facing an unfair dismissal claim or a claim for unpaid wages.
Stand Down
Regardless of whether an employee is engaged on a casual, permanent or fixed term basis s. 524 of the Fair Work Act (FWA) allows employees to be stood down without pay, where an employee cannot be usually employed due to stoppage of work for any cause that the employer cannot reasonably be held responsible. Enterprise agreements or employment agreements may impose additional conditions that must be met prior to standing down an employee. Employers also need to consider whether they can stand down employees using a JobKeeper enabling stand down direction.
The Fair Work Commission (FWC) is authorised to deal with disputes regarding the standing down of employees, therefore great caution is required. In dealing with a dispute, the FWC must take into account the fairness between the parties concerned.
Upon business recommencing, each employee stood down must be offered the opportunity to recommence work in their former role.
Consideration should be given to flexible work arrangements where those can practically be offered.
The Fair Work Ombudsman provides a useful template letter for standing down employees not accessing the JobKeeper scheme.
Redundancy
Section 389 of the FWA provides that a person may be made redundant if:
- The employee’s role is no longer available or necessary due to a change in operational requirements; and
- The employer has provided a consultation period, if required by a modern award or enterprise agreement.
Employees must receive redundancy entitlements as prescribed by the FWA, calculated in accordance with the duration of their employment.
If in doubt speak to a member of the BTL Employment Team
Bruce is the founding director of BTLawyers. He has managed thousands of litigation matters and is an acknowledged leader in law with an impeccable professional reputation. As a business owner, he has an acute understanding of the commercial imperatives of his client’s businesses and ensures they are always on the front foot in any dispute.
Kerrie Jackson, Director Principal, commenced her legal career in 2006. She has acted for both Plaintiffs and Defendants in workers’ compensation, superannuation, disability insurance, medical negligence, motor vehicle accident, property damage, public liability and a range of general insurance and contractual disputes.
Samantha Cathcart has been practicing in defendant insurance litigation for 8 years, with a primary focus on workers compensation claims. Sam also has a Graduate Diploma in Occupational Health and Safety. Sam’s common-sense approach to claims management and her down to earth character helps her build connections with employers and claimant’s solicitors, to enable a pragmatic and smooth resolution of the claim.