fbpx

With organisations now re-opening their doors and re-implementing physical workplace arrangements, many have had to adapt their day to day operations.  In this Insight, we explore key considerations for organisations and employers.


A primary consideration for employers is the health and safety of their employees.

Public health authorities have announced that the most effective method to contain the spread of this virus is to limit and minimise human contact. Accordingly, employers have been faced with making some challenging calls.

Work Health and Safety Laws

Under the model Work Health and Safety (WHS) laws, employers have a duty of care for the health and safety of their workers and others at the workplace. This includes providing and maintaining a work environment that is without risk to health and safety and providing adequate facilities for workers in carrying out their work.

Employer Duty

Employers should be making appropriate arrangements so that workers who need to self-quarantine stay away from work. Where possible, employees should be provided with flexible work arrangements such as working from home. For many people, businesses are resuming as usual, however most workplaces are implementing changes including working from home, cancelling face to face meetings and conferences, switching to online meetings, closing workplaces and cancellation of business travel in view of the international travel restrictions and domestic border closures.

Worker Hygiene

For people still working as usual, hygiene practices should be considered and where possible implemented. Every organisation will face different considerations, but this could include:

  • Employers should provide clean hand washing facilities, alcohol-based sanitisers, tissues and cleaning supplies.
  • They must ensure that the workplace is kept clean by regularly cleaning all surfaces.
  • Promote good hygiene practices through posters and constantly informing everyone.
  • Workers who are ill should be encouraged to stay at home until they are recovered. If a worker is confirmed to have COVID-19, employers should inform the workers about the possible exposure however maintain the ethical confidentiality. Advise workers to seek medical advice if they are concerned about their health or if they develop symptoms.

Workers can minimise the transmission of COVID-19 by maintaining hygienic practices. These may include by are not limited to:

  • Cleaning your hands with soap and hand sanitiser regularly
  • Covering your nose and mouth with either a tissue or your elbow when coughing or sneezing
  • Avoiding touching your face, nose and mouth.
  • Avoiding shaking hands and coming into close contact with anyone who is unwell.
  • If you feel ill, stay at home.  

The COVID Safe App

Use of the app is intended to be voluntary. This has been clearly articulated in section 94H(1) of the Privacy Amendment (Public Health Contact Information) Act 2020 which came into force in May 2020. This amendment makes it an offence to require another person to:

  1. download the app to a device, or
  2. to have the app in operation, or
  3. to consent to upload the date from the app to the national database.

Section 94H(2) makes the specific reference to an offence being committed if you:

  1. refuse to enter into, or continue, a contract or arrangement with another person (including a contract of employment); or
  2. refuse to allow another person to enter premises that the other person has a right to enter.

If you are considering use of the app by your employees, you will need to make sure that it is clearly a voluntary measure and you do not stop employees from entering the office due to a failure to use the app. This does not prevent you from stopping persons form entering your premises other health and safety reasons.

COVID-19 and Australian Workplace Laws

It is important to understand your entitlements and obligations as an employer. It is encouraged that employees and employers work together to find appropriate solutions to suit the needs of individuals, workplace and staff. This may include different forms of sick leave, annual leave, extra precautions or a change in work arrangements.

Fair Work has published a detailed breakdown of the effect of COVID-19 on Australian workplace laws. This can be accessed here: https://coronavirus.fairwork.gov.au/

Stand down powers

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

This would also apply if there has been a stoppage of work due to lack of supply for which the employer can’t be held responsible.

If an employer qualifies for and has enrolled in the JobKeeper scheme and is entitled to JobKeeper payments for the employee to whom a direction or agreement applies, they can use the JobKeeper provisions in the Fair Work Act to give that employee ‘JobKeeper enabling directions.

If an employee chooses to stay home as a precautionary measure, they may not be entitled to pay unless an arrangement is made between themselves and the employee. Arrangements may include working from home or taking some form of paid annual or long service leave.

Can an employee not attend work because their child’s school or childcare centre has closed due to COVID-19?

If an employee cannot come to work due to the need to care for a child whose school or childcare has shut down, they will need to use their paid carer’s or other paid leave entitlements in order to be paid. Otherwise, they will need to utilise any unpaid leave entitlements. The employer should explore other arrangements such as working from home or taking any other leave.

What happens if a worker or their family member is sick with COVID-19?

If an employee is sick with the virus, they cannot attend the workplace due to the health and risks involved to the individuals and workers around them. Employers must ensure this is met to ensure compliance with the Work Health and Safety Laws. If an employee’s family member is sick with the coronavirus, they may take paid carer’s leave.

Birchgrove Legal is a boutique Sydney law firm at the cutting edge of innovative approaches to serving clients across its practice areas and industry sectors. Get in touch with one of our authors to discuss your needs further.

Authors