Fioro Legal’s Principal Solicitor and Managing Director Fiona Dernikovic outlined some thoughts in relation to employer liability and general legal tips of transitioning employees back to the workplace in 2021.
Q: What should employers and employees know about their legal responsibilities returning to work
Employers and employees alike are both having to navigate unprecedented changes in the workplace, with such changes giving rise to new legal challenges.
Under work health and safety laws, employers have a duty of care, as far as is reasonably practicable, to ensure the health and safety of workers.
In the Covid-19 context, employers should at least be providing employees with information about the health risks of Covid-19 and implementing measures in the workplace to minimise that risk such as :
- prominent signage – (see https://www.covidsafesignage.com.au)
- additional hygiene measures,
- staggered arrival times/shifts,
- supplying protective equipment such as masks
- self-isolation protocols for employees who feel unwell.
Q: What can happen if employers fail to address Covid plans?
Failure to take such measures may result in Fair Work action and potential liability for loss of income and medical expenses if it is established that an employee contracts Covid-19 at work (much like any other workplace injury). In the context of current Government health orders, such failures may also result in criminal penalties.
Employees face new legal obligations too. Two recent Fair Work Commission cases demonstrate that unsafe workplace behaviour, or refusal to comply with a reasonable workplace reporting obligation, may result in dismissals being upheld.
Case 1 – Failure to provide information about travel plans.
In one case, the Commission held that the repeated refusal by an employee to provide information about previous and future travel arrangements on privacy grounds justified his termination.
Whilst personal details about travel plans pre-Covid may have been private matters, this is arguably no longer be the case, with such information required to assess Covid risks within a workplace.
Case 2 - Unsafe workplace behaviour - an employee fired for coughing in another employees face?
The Commission also upheld the dismissal of another employee accused of deliberately coughing in the face of another employee on the basis that such behaviour was inconsistent with the employer’s expectations and posed a serious health risk to other staff.
Q: What are you general comments around the JobKeeper scheme?
Alleged misuse of the Government’s JobKeeper scheme is another legal minefield, with one employer facing allegations in the Federal Court of Australia that it used the scheme to unreasonably reduce an employee’s salary from $200,000 to approximately $40,000 (being the annualised equivalent of the $1500 fortnightly JobKeeper payment) despite the employee’s workload remaining the same.
Q: Back to work tips:
Apart from being a stipulated requirement by government bodies, the following steps are an opportunity to communicate vital messages and provide reassurance that steps had been taken to keep staff safe and clarify what they needed to do.
Lawyer Fiona Dernikovic outlined the following 6 tips:
- Develop a COVIDSafe plan: All operating workplaces should establish a COVIDSafe plan, which outlines the measures that business is implementing to keep its workplace safe and minimise the risk of COVID transmission. In some Australian states and industries, such plans are mandatory, particularly for certain industries such as hospitality. The Australian Government’s planning tool can assist businesses to develop their plan. Safe Work Australia has also published guidance of how business can conduct a Covid-19 work health and safety risk assessment of their workplace.
- Communicate with employees: Discuss your plan with staff members, encourage them to ask questions and establish a point of contact with whom they can openly raise any concerns. Employees may be nervous about returning to the workplace, so take the time to give them the reassurance that they need. Consultation is also encouraged, and in some instances legally required where work hours or conditions are changing (see point 3 below).
- Keep up-to-date with Award changes: Business should also consult Fair Work, or their legal advisers, to appropriately end any employee stand downs (if applicable) and communicate with employees about any award conditions which have changed as a result of Covid-19.
- Safely transition employees: Businesses should keep up to date on the Government orders imposed in their State and/or industry to maintain compliant employee numbers at the workplace at all times, as well as safe social-distancing and signage practices for both employees and customers. Safe Work Australia has a range of signage templates, accessible here, or you can buy directly from https://www.covidsafesignage.com.au
- Update employee benefit records: If employees have been impacted by COVID-related stand downs or reduced hours, business should ensure that they have still be keeping accurate records of benefits such as long-service leave and annual leave which, depending on the type of stand-down implemented, may still be owed to employees. Undertaking a reconciliation of these benefits now will avoid potential underpayment issues at a later date.
- Check compliance with Privacy Laws: Covid-19 has also resulted in privacy implications in relation to the information that can be sought from employees and how that information is to be treated. Businesses must remember that privacy laws continue to apply, and as a general rule, employers should aim to limit the collection, use and disclosure of personal information about their employees to what is necessary to limit and manage the COVID-19 outbreak. This might include whether an individual (or a close contact) has been exposed to a diagnosed case of COVID-19 or if they have recently travelled overseas (and to which countries). However, it would be best practice to limit the disclosure of such information within your business on a “needs-to-know basis”.
Q: What are some of the challenges of continuing working from home?
If companies want some or all of their employees to continue working from home there are a few concerns.
Remote working may raise privacy concerns in terms of storage of business documents, so consider revised practices in this regard too.
Cyber security: Working remotely increases the risk of cyber breaches, placing business and client information in jeopardy. Consider increasing cyber security measures, including ensuring all devices, VPNs and firewalls are updated with the most recent versions and security patches and have strong passwords. Employees should continue to use work email accounts, rather than personal accounts, and multi-factor authentication for remote access systems is recommended (ie a password code sent to a user’s phone).