COVID-19 Webinar: Key issues for Australian workplaces

The spread of COVID-19 (coronavirus) is starting to have a significant impact on business. Quarantine and travel measures have begun to impact global industries including manufacturing and transport, and the supply chains supporting them, and the effects are starting to be felt in Australia as the number of diagnosed cases increase.

In this session, we will discuss potential implications for your operations, including managing:

• business continuity risk, contingency planning and scaling down

• employment obligations, including leave and pay, discrimination and privacy, reasonable directions, work arrangements and standing down; and

• safety obligations, including mental health issues and consultation with key stakeholders, such as contractors and labour hire workers.

We hope you enjoy this webinar and please contact our team in relation to further advice in this area.  

 

Transcript of Ashurst Employment Webinar

Hello everybody and welcome to today's webinar. We're looking at probably the most topical issue in the country, if not the world, at the moment, the COVID-19 crisis and particularly the employment issues that arise as a result of this crisis.

0:18
Now our presenters today are going to be Karen Mitra, a senior associate in our Singapore office and Trent Sebbens, a partner in our Sydney office. They will be taking us through these key issues, primarily focusing on Australia obviously, because that's where most of you are. But Karen will take us through some of the regional elements so that you've got some idea of context across the region, so hopefully that will be relevant as well.

0:41
In terms of the issues that we're covering, we're looking at safety, employment and then moving on to broader questions.

0:50
And Trent I might hand over to you at this point to start taking us through some of these key issues and Karen will join us when she is able to.

0:59
Thanks very much Julie and hello to everyone. Thanks for joining us from wherever you are, whether that be at home or in your workplace, the few of you who may still be attending your workplace. We wanted to go through with you today, as Julie has said, a range of employment, safety and other issues, and to obviously give you some tips as far as we can, as well as give you an opportunity to ask us any questions that you may have.

1:28
We have been thinking about the coronavirus pandemic and its impact upon businesses in a series of cycles, and you'll see on the next slide as it comes up, what we consider to be the immediate, the medium, and then the longer-term impacts upon business.

1.49
You all will no doubt be aware of the significant impact the pandemic has been to date, in Australia with over 1800 cases, seven deaths and, worldwide, over 340,000 confirmed cases. We've also seen in the past 48 hours both the Commonwealth and various State and Territory governments take significant steps in ordering non-essential businesses to be closed and substantial social distancing measures for the purposes of public health, as well as some interstate travel restrictions which we will talk to in a minute.

2:25
The impact of those measures as well as the pandemic as it continues to develop and impact upon employers will be broad, both here in Australia and globally, and the impact upon financial markets, we think, will be more significant than the 9/11 collapse in 2001 and the 2009 financial crisis.

2:45
Those immediate impacts are clearly going to be enduring and the ongoing effects will be substantial. The impacts upon business and the speed at which they are developing will obviously depend upon the particular business you are in, the nature of your undertaking and therefore some of the measures that we talk about today, you may be at different stages. You may already be towards the medium to longer term impacts. Others of you may be still dealing with the immediate crisis. So let's turn then to deal with safety as our first topic.

3:21
In relation to safety, the immediate matter to deal with, obviously, is swiftly dealing with what measures ought to be put in place to ensure the health of workers.

3:35
COVID-19 is not a workplace disease in the traditional sense. However, under the model Work Health and Safety legislation that applies in the majority of jurisdictions in Australia, with the exception of Victoria and Western Australia, although there are similar pieces of legislation in those jurisdictions, persons who conduct a business or undertaking have a duty to ensure the health of workers, and those workers are ones they engage, cause to be engaged or who are influenced or directed in their work by the business or undertaking. There's a similar duty in relation to "others" that may be affected by risks arising from the business or undertaking. So clearly COVID-19 has an impact in relation to work health and safety in that way.

The duty on the business or undertaking is then to assess risks to workers. Obviously to do that, those risks posed by COVID-19 will be different depending upon the business or undertaking that you operate, and it will depend upon the materiality of those risks of workers being affected, and in fact contracting COVID-19. 

4:51
For those of you who have frontline staff who deal with members of the public while they conduct their duties, and others of you who have large workforces that must interact with each other and are unable to perform their duties remotely, the risks, one would think, are going to be more significant and then therefore the measures that you implement will need to address that. So you need to assess your own risks, and you no doubt have already started to do that, and implement measures based upon the materiality of those risks and proportionate measures in response. The particular measures that you implement to deal with the risks need to be tailored to your own business, and they must be ones that eliminate the risk of exposure of workers to contracting COVID-19, or if that is not reasonably practicable, minimise the risk so far as is possible. What will be reasonably practicable for your business may not be practicable for another. Therefore introducing remote working, as no doubt a number of you have done, and you may be exercising remote working yourselves right now, is a measure obviously that can be adopted and has been broadly adopted. It will be effective at ensuring and achieving social distancing between co-workers and minimising their interaction with each other, and therefore contracting through aerosols, COVID-19 from co-workers or others, and from picking up that disease from services in the workplace.

6:21
You might also want to consider cancelling non-essential meetings or events, and no doubt many of you already have done that, and banning or significantly restricting non-essential business travel.

6:33
Measures for other industries though, also need to be considered. So if you are in mining or manufacturing, transport, electricity generation and distribution, health or in other sectors when large sections of your workforce, simply cannot perform their duties remotely, then measures to ensure the health of workers while they continue to perform their duties need to be considered.

7:00
Those might include, promoting regular and thorough hand washing in the workplace and increasing workplace hygiene, including providing hand-washing and sanitisation facilities. You could also promote good respiratory hygiene in the workplace, such as sneeze and coughing etiquette, and providing facilities for that, including tissues which are disposable, and closed bins.

7:23
You might also increase the frequency of cleaning and disinfection of workplaces, especially high-touch services such as counters, desks and tables and objects which are regularly handled, such as telephones or keyboards.

7:38
You might also consider whether or not you ought to be providing personal protective equipment for particular workers, particularly those who need to deal with members of the public, and that there are adequate supplies of cleaning equipment available for those performing cleaning services. Within the workplace, so far as you are able to do it, you might consider social distancing measures, including for those who actually have to attend for work, that they engage in social distancing practices in the workplace proper.

8:08
Also ensuring that employees understand that when they have symptoms, or that they are ill, that they must stay away from the workplace is critical. No doubt each of you have already undertaken a risk assessment and implemented your own measures, but those measures need to be continually monitored for their effectiveness, and you need to review and potentially change the measures depending upon the risk that is posed to workers, having regard to the nature of your business as the pandemic develops.

8:38
You ought to do that by monitoring medical advice or obtaining medical advice, and also government advice as the situation develops. Proportionate measures that have been put in place now, or in the previous few weeks, may need to be reassessed as the level of risk changes in the workplace and in the community at large.

8:59
Having talked about measures, it's salient to remind you that you need to communicate those measures to your workers and to let them know how risks are going to be managed. You must also consult with them about the measures for health and safety.

9:14
In the present circumstances, we think efficiency of consultation will be important. Utilising your existing consultation methods, including health and safety representatives and work health and safety committees, may be an efficient way to achieve that obligation. Clear communication to employees though, are also very important, including for the reasons of ensuring the mental health of your employees. A recent survey by Edelman, which is a consultancy that develops a trust barometer, found that employers were the most trusted source of information about COVID-19 for those respondents to that survey.

9:56
The respondents to the survey also considered that their employers would be more ready than the governments of host countries. Two-thirds of employees trust their employers to take responsible action to deal with COVID-19. So there's clearly a burden upon you from your workers to be seen and to actually deal with the risks posed to them. Safety information that you might want to provide to your workers, could include, what they themselves should be doing to avoid the virus in the workplace, steps that are being taken by you to avoid spreading the virus, and broadly what the organisation is doing to manage the impact upon your business.

10:27
Communications about those matters will provide reassurance to your workers that the steps you are taking places their health as a critical priority.

10:51
Mental health of workers also is going to be an issue with employees feeling anxious about their health, as well as the health of their families, their friends and their co-workers, and they will also know they will have some concerns about their own employment and financial security. Providing information to them will go a long way to achieving some reassurance for them and managing their mental health. For remote workers, ensuring that that you remain in contact with them, and that they are engaged and that you check in with them, will also be important, as well as will be giving them access to employee assistance programs. That's the work health and safety matters that need to be considered. Let's then turn to the next topic of dealing with employment and industrial relations matters.

11:45
One of the first issues that you no doubt will have faced, is being able to direct employees in the current circumstance. The touchstone for giving a direction to an employee is subject to a usual legal test.

11:59
And that is whether or not the direction given to the worker is lawful and reasonable. Safety matters and measures that you implement will have an overlay in relation to the directions that you give and workers will also have an obligation, under the model Work Health and Safety laws, to comply with that direction.

12:20
In relation to arrangements for working at home and directing employees who are ill, that they do not attend for work or only attend subject to a medical clearance, we consider in the present circumstances that would appear to be a reasonable direction.

12:35
The ability also to direct the taking of annual leave, subject to certain notice requirements, which we'll touch on momentarily, will need to be done in accordance with those relevant laws, as well as, if it is dealt with in awards or enterprise agreements or contracts or policies, in accordance with those instruments. It is of course possible that if there are notice requirements, those notice periods may be waived by agreement with employees, and we would think, in all of the circumstances, that agreement is likely to be forthcoming if the alternate course for you is to take more significant action.

13:17
Directing an employee to undertake a medical examination or to have their temperature tested will depend upon the circumstances and again will depend upon whether or not you have such a right in your employment contracts or an industrial instrument or policy.

13:34
If there is a right included in contracts or enterprise agreements, then that power could be utilised to direct people to undertake a medical assessment if you are concerned they are demonstrating the symptoms of COVID-19. Asking an employee to voluntarily undertake a medical examination, or to obtain a medical clearance, or again, to participate in other medical measures such as having their temperature tested, of course is another step that you could take.

14:01
However if you want to implement a policy concerning those medical measures, that will need to be considered in accordance with the principles about implementing such policies - that is whether or not they are unjust or unreasonable. As with similar policies such as alcohol and other drug testing, the balance that needs to be struck is between the interests of health and safety and the employee's privacy.

14:30
We would think in the present circumstances that the balanced falls clearly is in favour of health and safety, however, you should be aware that if you wanted to implement such a policy, it is subject to challenge, and could be subject to disputation and litigation in courts or tribunals.

14:49
A direction for an employee not to undertake certain activities, including non work-related travel or to take other precautions outside the workplace, we think, would be something that could be dealt with by policy. It would seem reasonable to us that the policy providing that an employee who undertakes travel to a location that would then require their self-isolation on return, and that person would not be able to then receive pay, is a reasonable policy in all of the circumstances.

15:20
Those are some critical and immediate issues, that you no doubt have already faced. Let's turn also to another immediate issue, which is travel and isolation including self-isolation of workers.

15:38
The restrictions on travel, you will no doubt have seen in the media, are now broad-reaching. The Commonwealth government has imposed a ban from the 20th of March onwards, permitting only citizens, residents and their direct family members to enter Australia. This followed more specific restrictions in relation to China, Iran, South Korea and Italy and then self-isolation of all foreign travellers.

16:03
It is only now though, citizens, residents and their direct family members who may enter the country. Those persons though must still self-isolate. The Commonwealth is also urging all foreign travellers to return home, whether or not given that urgency, and urging, we see our borders closed in a more significant way we await to see.

16:26
Across the states, Western Australia, Tasmania, Northern Territory and Queensland have also closed their borders. The ACT has encouraged citizens not to travel and Queensland has issued a 'stay in your suburb' advisory.

16:40
So whilst foreign travel is now extremely limited and the practicality of doing so would appear to be quite complex and difficult, you may want to consider and confirm that travel to overseas locations is either banned or is only for essential services. The reason for permitting workers to travel overseas in the current circumstances, we would think, needs to be absolutely essential.

17:08
The Commonwealth government has advised that all non-essential travel should be avoided, particularly inter-state travel and travel over long distances within the confines of Australia. Given the domestic border closures of various States, and taking note of the self-isolation requirements imposed by those States, employers might also wish to consider whether they implement policies restricting travel for domestic purposes. It would seem to us that that is a reasonable and prudent step to take in the current circumstances.

17:45
Self-isolation, you will be aware, is also recommended by State health departments where a person has come in contact with a person who is sick with COVID-19, or who has travelled from overseas in the past 14 days.

18:01
Having all those matters in mind, you might want to consider whether or not you update your travel policies, as we've talked about, whether or not you impose additional restrictions on work-related or non-work-related travel, as we've talked about as well, and also whether or not you require clearance in relation to self-isolation by employees returning from self-isolation periods, or from affected locations.

18:28
We note though that medical clearance will likely be more challenging to obtain as the pandemic develops, primarily because of the overburdening of the public health system. So you might wish to consider how you deal with that circumstance if obtaining a medical clearance becomes increasingly difficult. That's the situation in Australia in relation to travel in isolation. Let's then turn to Karen, on the situation in Singapore and Hong Kong.

19:01
Excellent. Thanks Trent very much. And yes, I have been able to join. Thank you everyone very much for your patience. We'll just move to the next slide and I just want to take you now through the some of the travel restrictions in Singapore and Hong Kong and how they relate to employees who undertake work travel or who choose to travel for for personal purposes.

19:21
I want to stress at the outset that Singapore and Hong Kong both have dedicated countrywide plans designed to deal with infectious disease outbreaks, which were developed after their experiences with SARS and H1N1. In Singapore the plan includes the Disease Outbreak Response System Condition or DORSCON, which is a four-stage alert level system. Each alert level brings with it a different form of advice for the public and places requirements on landlords and companies. This alert level has allowed the implementation of many control measures that would otherwise fall to an employer and then raise the question of a lawful and reasonable direction.

19:54
So for example, under the current Orange alert level, landlords of many commercial properties have been required to minimise entry and exit points of buildings and implement temperature screening at such entrances. Individuals presenting with a fever or who have a travel history to certain locations are not permitted to enter the premises. In terms of travel restrictions, Singapore has issued a similar alert to that of Australia, requesting that residents do not undertake any form of international travel. Further, short-term visitors from a number of European countries, Iran, parts of South Korea and mainland China have not been permitted to enter or transit through Singapore for a number of months. And as of midnight last night, there is no entry or transit permitted into Singapore for people who are not Singapore citizens, permanent residents or work pass holders.

23:01
With respect to foreign employees, they are no longer allowed to enter Singapore without the Ministry of Manpower's approval. So for individual permission, it will need to be obtained before a foreign work pass holder can re-enter Singapore. And as of yesterday, the government had announced it will only be giving permission to work pass holders who work in essential sectors, such as health care and transport i.e. other work pass holders will not be able to re-enter the country.

21:00
Everyone who does re-enter the country will be required to complete a health declaration form before they're allowed to get on the plane. And then once they enter Singapore, as of the 20th of March, they've had to serve a 14-day stay-at-home notice, regardless of the country from which they've arrived, and I'll touch on that a little bit more in a moment. All entrants into Singapore who have a fever or respiratory symptoms will be required to undertake a COVID-19 test. If they refuse to do so, they will not be permitted entry into the country unless they're a Singapore citizens.

[Audio missing - transcript included]

So officials from the Ministry of Health or the MOM can contact the person at any time to check on their location, in which case the individual will need to share the location via their phone location services or by video call. There are also regular house checks for those on a stay-at-home notice and non-compliance with these requirements can lead to a fine for Singapore citizens or cancellation of a work visa and deportation for foreigners.

21:30
Foreigners on work visas and permanent residents may have their visas revoked if they fail to undertake the test. So the stay-at-home notice applies, even after Ministry of Manpower permission for entry has been granted for a foreign visa work holder. It also applies even if the employee or the individual has tested negative for COVID-19 under their swab. So where a stay-at-home notice has been issued as a result of work travel, an employer has been required by the government to pay the employee as per normal under special paid leave, but they can require the employee to work from home if that's practical.

22:03
If the notice has been issued as a result of personal travel, the employees is to be allowed to work from home if that is practicable and if not, then the employer can require the employee to use his or her accrued leave balance or take a period of no pay leave, if that policy was advised for employees in advance. This approach was only approved by the government last week in response to the general advisory against overseas travel.

22:45
And they've been 89 cases where work visas have been cancelled and/or associated pass privileges revoked for employers in circumstances where an individual has breached the stay-at-home notice, or where an employee has re-entered the country without seeking approval from the MOM. Similar arrangements are in forced in Hong Kong with entry restrictions in place. So as of the next day or so, there will no longer be any tourists allowed into Hong Kong. Those who do enter into Hong Kong with a visa will be under mandatory quarantine for 14 days.

23:17
And self-isolation is monitored in a very similar way to Singapore and there's a specific tracking app that's been developed and handed down to use there. Schools have been closed in Hong Kong, obviously schools in Singapore are not, but there's been some additional requirements placed on schools, which have reopened after a week-long holiday. So in both jurisdictions employers are required to allow employees to work from home as much as they can and a number of companies have introduced arrangements to allow employees to work from home where possible, or take other options such as roster arrangements where half of people are in the office and half the people are not in the office. I'll hand back over to Trent who's now going to move over to the next stage of the presentation.

24:00
Thanks Karen, some useful update on the situation in Singapore and Hong Kong. Of course, if you have business operations in those places, then those are the current orders and directions which are in place in those locations. If you have operations elsewhere, and you will have been seeing in the media and other sources, various restrictions being placed by the US government in Europe and also other places across the globe. Pay close attention to the orders that have been issued by governments there to see how that may impact on you including if you do need to have employees undertaking essential work-related travel.

24:43
Let's then turn to an issue that a number of you have no doubt already dealt with, which is the question of: how do you pay employees during the period of the pandemic if they need to be involved in self-isolation or in other circumstances, and how might you deal with those scenarios?

25:03
We won't be able to deal with every contingency or every situation that you might have come across, but you'll see five instances there that we've turned our minds to on the slide, the first of which is: how do you pay employees and can they access leave when they are subject to self-isolation?

25:26
The answer to that question and to a number of the other questions we consider turns upon a number of principles. For your particular business, it will be critical that you have regard to the employment contracts of your employees for whom this question arises and any applicable Enterprise Agreements, Awards and possibly policies. You will need to descend into the detail of the wording of each of those documents and consider for yourself in the circumstances that arise, whether or not leave is due to an employee in these circumstances.

26:03
As a matter of general principle though, however, let's just work through some of the questions. An employee who is ill and therefore unable to attend for work due to having contracted COVID-19 clearly is able to access personal leave. Similarly, if a worker needs to care for a family member who is ill due to contracting COVID-19, and they need to provide care to that person, then they can access carer's leave.

26:31
Similarly, if an employee needs to look after a child due to an emergency situation resulting from school closures - and we've seen school terms brought forward in some jurisdictions and directions for options not to bring children to school which might be on the margins of this answer - we would think that does trigger carer's leave and it would answer the description of being an "emergency situation" for which employees can access carer's leave.

27:06
If an employee though is not able to work due to self-isolation, that is an order of the Commonwealth government or of a State government in relation to returning from a location where there are travel restrictions upon the return from that place, then the employee while they might be ready and willing to work, they are simply not able to work due to that self-isolation requirement.

27:32
That person, even if they are not ill, even if they are not symptomatic, they would not be, on first principles, entitled to pay. However, you do need to look at whether or not they might be entitled to pay if your contract or a policy or any industrial instrument that applies provides for payment in those circumstances.

27:53
If you decide to take the decision, as a precaution, to direct employees not to attend for work - that is to send them home and not perform their duties and they then cannot perform their duties remotely, that is a decision that is made by the employer. The employee is not ill, the employee is ready willing and able to work, and subject to stand down provisions that we'll come to momentarily, you would be required to pay the employee.

28:25
Casuals will be a different situation and this different situation is that a decision not to engage a casual (meaning that they are not entitled to payment because they are not engaged) is a different scenario then from the last that we've just described.

28:45
Whether or not you decide to give access to employees to other leave such as a form of special leave (and we've seen calls from unions, particularly the ACTU and its "Name and Fame" list for employers who are deciding to do this) or whether you permit them to access annual leave or long service leave is a matter that you should consider, but whether or not you do grant access to that leave or provide special leave is a matter for you. You'd need to consider the cash flow effect on your business of granting such leave, including special leave. You also need to consider the economic impact that it will have on your business if the pandemic continues for a number of months, and therefore leave entitlements or those special arrangements would continue potentially for a number of months, those factors need to be weighed in the balance.

29:35
Employees who travel abroad and who are then stuck abroad on work or not work related travel will depend upon the reason why they are stuck abroad and how that came about. So if they are stuck abroad having travelled for work related purposes and cannot return, if they are capable of performing work remotely, then they should be required to do so. If they are simply not able to perform their duties remotely and they are stuck overseas then it would appear that those employees would be entitled to pay.

30:06
Employees who are stuck abroad and were overseas having taken long service leave or annual leave and now cannot return would of course continue through their period of approved leave. They might seek for you to extend that approved leave as much as they have accrued and that will be up to you whether or not you grant that. Once that is exhausted though, they would not be entitled to pay, we would think.

30:32
Employees who refuse to perform particular work is a vexed question - that is if they don't attend for work, or do not perform work because of the concern about contraction of COVID-19. Employees have a common law right to refuse to perform unsafe work. Whether or not in the circumstances at the moment and in your business and having regard to the duties that they actually perform it is unsafe for them to continue to perform those duties is the critical question that needs to be answered.

31:04
A refusal if the situation is not one where it is unsafe for the employee to work is a matter for discipline.

31:12
Industrial action, also, that is collective stoppage by employees of work, is another matter that could arise. There is an exception to industrial action (that is that it does not fall within the definition of industrial action) if the stoppage of work is due to an imminent risk to health or safety, that the employees hold a concern about that imminent risk, and they have not refused to follow a direction to perform other duties.

31:40
Such action is then capable of redress in the Fair Work Commission under a section 418 order or potentially in the courts under a section 417 order. Whether or not those tests are met in the circumstances would be the subject of challenge.

31:59
In respect of the workplace, there are obviously a number of you who will have Health and Safety Representatives (HSRs) and they will have powers in relation to directing cessation of work by workers where the HSR considers the work is not safe, and they also have powers to issue provisional Improvement Notices. It's also possible that there may be disputation, both about the direction to cease work, also the Improvement Notice, but perhaps more generally about whether or not work is safe or measures that are being put in place to make it safe. Those issues could be resolved through issue resolution processes under the model Work Health and Safety laws by an inspector of the relevant safety regulator in your jurisdiction.

32:43
We've dealt with a direction not to attend for work in relation to the general principles as well as family/carer responsibilities. It is critical though that you consider your own circumstances as well as the terms of employment contracts, policies and industrial instruments in your business to answer these questions.

33:05
Let's then turn to another topic which has arisen and will be an enduring one, which is discrimination and privacy.

33:16
We have seen since the outbreak of COVID-19 in the workplace a serious concern arising about employees being harassed, discriminated against or vilified as a result of their racial or ethnic backgrounds. Principally that commenced with employees of Asian origin, particularly Chinese, but then Iranians, Italians and South Koreans being subject to harassment including in the public, but also in the workplace.

33:47
We now see due to the pandemic, COVID-19 does not discriminate upon race nor ethnic background. The issue that now arises is harassment, discrimination or vilification of employees who have contracted COVID-19. That disease will be a disability within the meaning or for the purposes of Federal and State discrimination laws.

34:09
There are exceptions to those laws where measures are put in place to prevent the spread of an infectious disease. However, it's a matter that should be brought to the attention of employers and you may wish to update policies regarding any discrimination and privacy as you consider necessary to deal with these matters as well as bringing it to the awareness of your managers and supervisors and training them to deal with these situations to prevent discrimination, harassment or vilification. You might also wish to communicate to employees how you are dealing with these matters and what support is in place so that they feel that any issues that may arise in the workplace concerning these matters are going to be appropriately and swiftly dealt with. You might also for this purpose notify them that they have access to employee assistance programs.

35:02
Let's then move beyond some of the immediate matters that you will have dealt with or are still dealing with to some medium-term to longer-term matters, the first of those being business continuity.

35:17
You'll see on the slide a number of measures or matters to take into account and some of you will already be dealing with these. Working from home capability is clearly a matter that you would have already dealt with but if you are still dealing with it or moving into it, then you ought to consider whether or not you have policies in place, or if you have already moved to working from home, implementing a policy to deal with how employees ought to manage their work and their safety while working from home, including for example doing a self-assessment of their workplace, because working from home, that will now be their workplace. You should also consider your IT capability and capacity to deal with the increased number of remote workers and also consider how privacy and confidentiality arrangements are to be dealt with, including: Do you restrict employees taking documents to their homes? Do you prevent them from printing out documents on home computers and printers?

36:23
Where you have decided to close your workplace, however you need to have parts of it continue to operate or you need essential workers to continue to attend, as we've talked about in relation to safety measures, you ought to consider what particular measures are to be put in place to ensure the safety and health of those workers.

36:47
For business continuity reasons, you might also be turning your minds to rostering if you do not have rosters in place, that is implementing rosters, or if you do have rosters in place, perhaps changing those rosters, and we've also seen some of our clients adopting Team A and Team B approaches to prevent, if a particular group becomes infected, the business then not being able to operate.

37:13
Lastly you should consider, if you are in an essential service within the meaning of State and Commonwealth legislation, whether or not essential services orders impact upon your business and therefore restrict your ability to put in place particular business continuity measures.

37:32
For the longer term, there will be a number of considerations that you no doubt will be turning your minds to and some of you may already be in this situation. That is, considering whether or not you ought to scale down your operations and also - and we will turn to these matters in some more detail - whether you need to stand down your workforce or parts of your workforce and whether or not you need to restructure and implement redundancies.

38:00
You will see on the slide a number of other measures that you might be considering, including freezing new hires, reducing supplementary labour, changing rosters, overtime or weekend work arrangements, freezing or deferring salary increases or bonuses as well as providing access to annual leave or long service leave in advance or at half pay. Some of those matters including that last one might be taken hand-in-hand with standing down.

38:31
Let's then move to standing down because this is a particular topic that we have been receiving a lot of questions about and a number of you will be already turning your minds to.

38:43
The question of whether or not you can stand down employees because they are not able to be usefully employed will depend upon whether or not you have stand down provisions in your employment contracts or in your enterprise agreements. If you do have provisions in either of those instruments, then the steps that are set out and the tests that must be met are the ones that are contained within those documents.

39:11
For those who have contracts or enterprise agreements that do not deal with stand downs, or if you are in a situation where you are award or agreement free, then resort may be had to section 524 of the Fair Work Act.

39:29
Section 524 provides that an employer may stand down an employee during a period in which the employee cannot be usefully employed, and that has a number of sub-paragraphs, the last being a stoppage of work for any cause for which the employer cannot be held responsible.

39:50
There are three critical elements in whether or not you can meet this test. Those are: whether or not employees can be usefully employed, secondly, whether it can be established there is an actual stoppage of work and then third, whether or not that is for a cause for which the employer cannot be reasonably held responsible.

40:12
Let's take a number of those in a little bit more detail.

40:16
Whether or not employees can be usefully employed requires an analysis of whether or not there is useful available work for which an employee has the skills and competence and if necessary, qualifications, to perform, and is within the scope of their contract of employment, and that that work has some benefit for you, the employer. Therefore it is not simply making up work, making busy work.

40:42
It needs to be useful work that is available for workers to perform. Where there is work for some but not all employees, it's generally accepted that certain employees can be selected to do the work that is available and that the balance of workers are then not able to be usefully employed. Obviously issues will arise about how you go about selecting which employees can perform the work that is available.

41:10
In relation to a stoppage of work, the cases on this point are very limited. However, there does need to be a stoppage of work and there needs to be a direct connection between that stoppage and a cause for which you are not reasonably to be held responsible. That is the critical question. Clearly employers are not responsible for the pandemic, but that is not simply enough.

41:40
There must be something which is causing a stoppage of work and it is temporal that that stoppage and the cause of it and you then taking the decision to stand down employees is connected. It must be because of the stoppage of work for which you cannot be reasonably held responsible. Therefore if you stand down employees pre-emptively and before that test is able to be met, you are likely to face disputation. That could be in the form of injunctions, it could be in the form of underpayment claims, and you will need to deal with those matters. It is a temporal question that you need to consider.

42:19
How you deal with employees then if you do stand them down and their ability to access leave is a matter also that needs to be carefully considered. Obviously during a stand-down employees will remain employed but they are not performing work and they are not entitled to pay. That is the whole point of standing down the employees. It will not affect their continuity of service.

42:44
But, as we said, they will not be performing service and they will not be entitled to pay. Employers typically permit employees to take annual leave or long service leave or ameliorate the financial impact of the stand down. Whether you permit that is a matter for you, including whether or not you permit leave to be taken at half pay or you permit employees to take leave in advance is something that will no doubt be put to you and you ought to consider. Because employees are not attending for work, they are not performing work. They therefore during a period of stand down cannot access personal/carer's leave.

43:27
For a period of paid or unpaid parental leave, we consider that the employee would not be taken to be stood down. However, the position that they are in is capable of being stood down and if their period of paid or unpaid parental leave comes to an end, the position to which they return would be subject to the stand down and they would themselves then be stood down from that point onwards.

43:48
In respect of workers compensation we would think if the employee is off work receiving statutory benefits that is a matter for the insurer, but it seems that that is likely not affected by the stand down.

44:04
These are all critical questions and requires sharp analysis on your part whether or not you do meet the test for stand down including those important tests about whether or not there is a stoppage of work, whether or not employees can be usefully employed and whether or not the stoppage is due to a matter for which you cannot be reasonably held responsible. Depending upon your industry, depending upon the nature of your business, depending upon the work that is performed by your employees and depending upon the circumstances of the pandemic at a particular point in time, will lead you to a particular answer. That answer may be that the situation right now is not one where you can stand down employees, for some of you. For others it will be.

44:49
Let's then turn to a longer-term potential impact and approach, which is implementing redundancies.

44:59
Obviously the further that the pandemic continues on, and the directions of the government in respect of staying and sheltering at home, as well as non-essential businesses not being open, there will need to be consideration of redundancies and restructuring. Further, the impact upon Australian markets and global markets will likely lead to that necessary consideration.

45:27
In implementing redundancies, however, you need to follow the usual processes for implementing redundancies including considering whether or not employees could be redeployed to other work and within associated businesses. We would think, in the circumstances, while you need to consider that, it would seem unlikely that there are many opportunities for redeployment.

45:50
But you need to go through that process of considering whether or not redeployment is available. You also need to ensure you meet your consultation obligations because what you are intending to implement is a major workforce change. If you are covered by a modern award, you have the model terms or similar terms in enterprise agreements, then consultation provisions will be triggered. Similarly you ought to, where you are implementing redundancies of 15 or more employees you need to notify Centrelink and you also need to notify relevant unions who represent employees.

46:28
Ensuring that you follow these steps will mean that you are not challenged in respect of having consulted, that you do not face litigation by interested unions or employees that you have failed to properly implement the redundancy and that you are therefore injuncted from proceeding with it. Following these steps is critical. Redundancies are likely to be challenged and of course, these are matters, no doubt, you will have as something of last resort that you are considering, but being precise and careful about how you are dealing with it is important.

47:08
Let's then turn to Karen and explore how redundancies are dealt with overseas, particularly in Asia.

47:15
Thanks very much Trent and just following on from that, I wanted to touch on the approach specifically taken in Singapore with respect to potential redundancies. Singapore does not have a statutory stand down provision in its employment regime and while they're sometimes included in Collective Agreements for unionised industries, they're not commonly included in employment contracts either. Further, Singapore does not have a statutory redundancy regime and the only form of regulation is the Tripartite Advisory on Managing Excess Manpower and Responsible Retrenchment.

47:40
This does not have the force of law but employers do comply in practice because the Government monitors compliance with the Advisory, and non-compliance will leave an employer in bad standing with the Ministry of Manpower which could have a range of consequences for a business. Given the background of the COVID-19 outbreak, that Advisory is being used to manage the current business downturn and was actually updated on the 11th of March to provide further detail on how employers can avoid retrenchment. The theme is very much that retrenchments are to be undertaken as a last resort, and the updated Advisory contains a range of measures that employers should consider and implement before undertaking redundancies and they include both cost-saving measures and non-cost-saving measures.

48:22
In the first instance employers are encouraged to send employees for any possible training and reskilling sessions if they're facing poor utilisation, or to implement a flexible working arrangement that doesn't affect anybody's payment of salary. In the second instance, employers are encouraged to consider implementing changes which do affect salary, such as a shorter working week, whereby an employee uses 50% of his or her accrued annual leave, or a temporary layoff of up to one month where the employee again receives 50% of pay and either 50% unpaid or 50% of their accrued annual leave, and these measures can only be implemented with employee consent and obviously are contingent on the employer actually having the cash flow to make payment of those relevant requirements.

49:05
Finally, in extreme cases and where all avenues have been exhausted or simply aren't possible because of cash flow issues, employers can consider no pay leave in conjunction with other cost-saving measures and there will usually be an expectation there that more senior individuals in the business at that point would be taking their own salary cuts. Employers who do implement cost-saving measures that affect an employee's monthly salary (so not bonuses or variable remuneration, but just their fixed salary) have to notify the Ministry of Manpower of the relevant measure within one week of implementation. And they have to confirm that the measure was implemented fairly and with the consent of the employees or with consultation with the union, and we've already seen that happen in a number of industries.

49:43
That's the roundup of the view in Singapore with respect to how this has happened given that we've been dealing with this here now for a number of months. Trent is now going to conclude the main part of the presentation with response phases comments.

49:58
Sure. Thanks Karen. We wanted to just then touch on a number of other issues that will no doubt impact upon your business as you go through each of the phases that we talked about at the outset. That is the immediate or crisis impact, the medium or midterm, and then the longer term. You will see foremost among those are the topics that we've been talking about today. That is workforce arrangements, safety and mental health, as well as privacy and data that has an employee element to it.

50:27
You also see in the midterm, business continuity matters as well as restructuring which could include redundancies and workforce restructures. Throughout the entirety of the period of the pandemic as it plays out and it impacts upon your business, there will be obviously workforce management issues that you need to deal with. You'll see at the bottom of that slide a number of other matters to consider including reputational issues and governance, and liaising with governments, and we won't have time to deal with this today, but we flag with you taxation considerations including superannuation, which may arise depending upon what steps you take in dealing with measures for COVID-19, as well as your ability to access certain government incentives concerning tax and stimulus.

51:16
Those were the topics that we wanted to cover with you.

51:21
Thank you everyone so much for joining the webinar today. We hope that you found that very useful. Thank you very much again. We really appreciate it and good luck and stay safe everyone.