Employment impacted by the COVID-19 coronavirus

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State system employers and employees impacted by the COVID-19 Coronavirus

This information is relevant to employers and employees in the WA state industrial relations system – sole traders, unincorporated partnerships, unincorporated trusts and some incorporated or not for profit organisations. Find out more on the Guide to who is in the WA state system page. Employers and employees under the national industrial relations system should instead refer to the Fair Work Ombudsman.

This page provides information for employers and employees on employment obligations and entitlements relevant to a range of situations as outlined below. 

Employee is sick with the COVID-19 coronavirus 

Employees who are sick with the COVID-19 coronavirus cannot attend work. Full time and part time employees who cannot come to work because they are sick with the COVID-19 coronavirus can take accrued paid sick leave. 

Under the Minimum Conditions of Employment Act 1993, full time and part time employees accrue paid sick leave equivalent to the number of hours they would ordinarily work in a two week period – up to a maximum of 76 hours per year. Sick leave is a cumulative entitlement, which means that any unused sick leave is carried over and added to the next year’s entitlement.

An employer can require an employee to provide reasonable evidence before they are paid for any time off work on sick leave.  Reasonable evidence may include a medical certificate, but is not necessarily limited to this.

Please refer to the Sick and carer’s leave entitlements page for more information.

If an employee has used up all of their paid sick leave, an employer and employee may agree that the employee access another form of accrued paid leave, such as annual leave or long service leave, for the period the employee is unable to attend work. Information on annual leave and long service leave is available on the Wageline website.

Under the termination provisions of the federal Fair Work Act 2009, which apply to state system employees, it is unlawful to terminate an employee on certain specified grounds, including temporary absence from work due to illness or injury. For more information visit the Fair Work Ombudsman website at www.fairwork.gov.au.

A member of the employee’s family or household is sick with the COVID-19 coronavirus 

If an employee needs to look after a family member or a member of their household who is sick with the COVID-19 coronavirus, they are entitled to take accrued paid carer’s leave. Under the Minimum Conditions of Employment Act, the entitlement to paid carer’s leave is:

  • in the first year of employment, a full time or part time employee can use any paid sick leave that he or she has accrued to date for caring purposes;
  • on the second and subsequent years of employment, a full time or part time employee cannot take more carer’s leave than the entitlement they have accrued during the preceding 12-month period;
  • an employee is entitled to up to two days of unpaid carer’s leave per occasion if an employee does not have sufficient paid leave accrued or has exceeded the maximum amount of carer’s leave that can be taken in any 12-month period;
  • casual employees can access up to two days of unpaid carer's leave per occasion. 

Awards, industrial agreements and contracts of employment which provide more beneficial entitlements than the Minimum Conditions of Employment Act must also be complied with.

For the purposes of carer’s leave, a member of the employee’s family or household is defined by the Minimum Conditions of Employment Act as any of the following persons:

  • the employee’s spouse or de facto partner;
  • a child, step-child or grandchild of the employee (including an adult child, step-child or grandchild);
  • a parent, step-parent or grandparent of the employee;
  • a sibling of the employee;
  • any other person who, at or immediately before the relevant time for assessing the employee’s eligibility to take leave, lived with the employee as a member of the employee’s household.

An employer can require an employee to provide reasonable evidence before they are paid for any time off work on carer’s leave. Reasonable evidence may include a medical certificate, but is not necessarily limited to this.

Please refer to the Sick and carer’s leave entitlements page for more information.

If an employee has used up all of their paid carer’s leave, they may agree with their employer to access another form of paid leave such as accrued sick leave (notwithstanding that the employee has used their allocation of carer’s leave), annual leave or long service leave for the period the employee is unable to attend work. Information on annual leave and long service leave is available on the Wageline website.

Example:

Robert is a full time employee whose wife has contracted the COVID-19 coronavirus and Robert is required to care for his wife while she is at home and unwell. 

Robert’s employment is not covered by an award or industrial agreement. His leave entitlements therefore come from the Minimum Conditions of Employment Act. Robert has approximately 8 weeks of sick leave accrued, and he is entitled to use 10 days of his sick leave as paid carer’s leave.  If Robert needs more time off work he can agree with his employer to use his other paid leave entitlements, including the remainder of his sick leave. 

Employees unable to work due to self isolation of themselves or a family member 

For information regarding self-isolation procedures and requirements, please refer to the WA Department of Health, Australian Government Health Department or the WA Government Coronavirus Health Information Line (1800 020 080). 

Self isolating employees who are not sick

If the employee is not sick there is no legal requirement under the Minimum Conditions of Employment Act 1993 for the employer to provide an employee with access to paid sick leave for the period of self-isolation or quarantine. As the employee is unable to make themselves available to attend work due to the federal Department of Health or State isolation requirements, there is no requirement for the employee to be paid for this period, unless the employee takes some form of paid leave.

The employer is able to allow the employee to access accrued paid leave such as annual leave or long service leave. Information on annual leave and long service leave is available on the Wageline website.

The employer and employee may wish to discuss working from home arrangements if this suits the work situation.

Employees who are caring for children who are required to self isolate

In a situation where an employee is required to stay home to provide care for their child who is required to self-isolate, the carer’s leave provisions in the Minimum Conditions of Employment Act may apply. Under this Act, carer’s leave includes leave taken by an employee to provide care or support to a member of the employee’s family or household who requires care or support because of an unexpected emergency affecting the member.

Further information can be found on the Sick and carer’s leave entitlements page.

The employer is also able to allow the employee to use any other form of accrued paid leave such as annual leave or long service leave. Information on annual leave and long service leave is available on the Wageline website.

Employees who are caring for children who are impacted by school or childcare closures 

Under the Minimum Conditions of Employment Act, carer’s leave includes leave taken by an employee to provide care or support to a member of the employee’s family or household who requires care or support because of a personal illness or an unexpected emergency affecting the member. 

A school or childcare facility closing due to the COVID-19 coronavirus may be an unexpected emergency affecting a member of an employee’s family or household for this purpose.

Under the Minimum Conditions of Employment Act, the entitlement to paid carer’s leave is:

  • in the first year of employment, a full time or part time employee can use any paid sick leave that he or she has accrued to date for caring purposes;
  • in the second and subsequent years of employment, a full time employee can only use a maximum of 76 hours of their accrued sick leave entitlement for caring purposes, or a part time employee the relevant proportion of 76 hours based on their ordinary hours of work;
  • an employee is entitled to up to two days of unpaid carer’s leave per occasion if an employee does not have sufficient paid leave accrued or has exceed the maximum amount of carer’s leave that can be taken in any 12 month period;
  • casual employees can access up to two days unpaid carer's leave per occasion. 

Awards, industrial agreements and contracts of employment which provide more beneficial entitlements than the Minimum Conditions of Employment Act must also be complied with.

If an employee has used up all of their paid carer’s leave, they may agree with their employer to access another form of accrued paid leave such as sick leave, annual leave or long service leave for the period the employee is unable to attend work. Information on annual leave and long service leave is available on the Wageline website.

Example:

Cora receives an email from her child’s school stating that the school is closed for 48 hours, as a teacher is in self-isolation after being tested for the COVID-19 coronavirus.  Cora contacts her employer to let the employer know that she will need to stay at home during the school closure as she has no other alternative care arrangements, and provides a copy of the email from the school as evidence of the need to take paid carer’s leave.

Employees who are required by an employer to remain away from the workplace as a precautionary measure

If an employer is directing an employee to stay away from the workplace as a precautionary measure in circumstances where the employee is not required to self-isolate and the employee is ready, willing and able to work, working from home arrangements should be considered. If working from home is not viable the employer would need to pay full time or part time employees their normal wages for the period they are directed to remain away from work.

An employer and employee may agree that the employee access another form of accrued paid leave, such as annual leave or long service leave, for the period the employee is directed not to attend work. Information on annual leave and long service leave is available on the Wageline website.

Employees who wish to stay home as a precaution

Employees who voluntarily wish to stay home and not attend work as a precaution but are not required to self-isolate must request paid leave from their employer or come to alternative arrangements such as working from home if this practical for the workplace. Normal leave application processes in the workplace would apply.

If the employee does not access some form of paid leave or working from home arrangement, they are not entitled to be paid for the time away from the workplace.

Example:

Sandra is a bookkeeper. She is not sick, but is not comfortable attending work as she needs to utilise public transport. Sandra has discussed working from home with her employer, and agreed that she can work from home two days per week to manage the payroll, and will take the other three days a week as annual leave.

Businesses that have been impacted as a result of mandatory closures or other impacts of the COVID-19 coronavirus

Standing down staff where a business has been impacted 

Where a business has been impacted by the COVID-19 coronavirus, and there is no work or reduced work available to employees, employers must continue to pay full time and part time employees who are ready, willing and able to work, unless the employees are covered by a WA award which contains specific stand down or break down provisions which cover this scenario. 

Full time and part time award free employees would need to continue to be paid by the employer, unless they have a written contract of employment with a stand down provision in it.

An employer and employee can agree that the employee takes a period of accrued annual leave, long service leave or unpaid leave during a period when business is impacted. Information on annual leave and long service leave is available on the Wageline website.

WA award employers and employees

Some WA awards contain provisions which enable an employer to stand down an employee without pay in certain circumstances such as a stoppage of work by any cause which the employer cannot reasonably prevent. 

Whether the option of standing down employees is available in circumstances relating to the COVID-19 coronavirus is dependent on the facts.  Employers would need to be able to demonstrate that the stoppage of work was not reasonably preventable by the employer, and that the employees to be stood down could not be otherwise usefully employed.

If an employer unlawfully stands down employees without pay, the employees may be able to recover unpaid wages.

Some of the WA awards that contain stand down or breakdown provisions are listed below. Please note this this list does not include all WA awards that may have stand down provisions and you should check the stand down provisions of the relevant WA award. The WA awards are available on the WA Industrial Relations Commission website www.wairc.wa.gov.au.

  • Building Trades Award 1968
  • Building Trades Construction Award 1987
  • Clerks (Hotels, Motels and Clubs) Award 1979
  • Earth Moving and Construction Award
  • Food Industry (Food Manufacturing or Processing) Award
  • The Fruit Growing and Fruit Packing Industry Award
  • Furniture Trades Industry Award
  • Hairdressers Award
  • Hotel and Tavern Workers' Award
  • Industrial Spraypainting and Sandblasting Award
  • Meat Industry (State) Award, 2003
  • Motel, Hostel, Service Flats and Boarding House Workers' Award
  • Restaurant Tearoom and Catering Workers' Award
  • Rock Lobster and Prawn Processing Award 
  • Sheet Metal Workers' Award No. 10 of 1973
  • Transport Workers' (Passenger Vehicles) Award
  • Vehicle Builders' Award
  • Wine Industry (WA) Award 2005

For information on stand down provisions in these or other WA awards please check the relevant WA award on the Western Australian Industrial Relations Commission website www.wairc.wa.gov.au or contact Wageline on 1300 655 266 for information.

Redundancy information

A full time or part time employee is redundant when their employer has decided that they no longer wish the job the employee has been doing done by anyone.  

In a situation where an employer intends making staff redundant due to the impact on the business of the COVID-19 coronavirus, the employer must first hold discussions with and consult with all employees who may be affected by the decision. If an employee nominates a union to represent them, that union must also be notified and consulted.

In a redundancy situation, there is an additional obligation for an employer to provide notice of the proposed terminations to Centrelink. The employer should also consult with any relevant union with membership at the workplace in this situation.

Employers are also required to provide paid leave for job interviews during the employee’s notice period, up to one day a week.

When an employee has been made redundant they are entitled to receive:

  • the appropriate notice period or pay in lieu of notice (if the employee is not required to work the notice period); 
  • any unpaid wages;
  • any untaken accrued and pro rata annual leave;
  • any untaken accrued long service leave;
  • pro rata long service leave (if applicable); and
  • severance/redundancy pay (if applicable).

A number of employees are generally not entitled to severance pay:

  • casual employees;
  • apprentices and trainees;
  • probationary employees;
  • employees with less than one year’s service;
  • fixed term contract employees;
  • employees terminated due to serious misconduct or for other reasons not related to redundancy.

A requirement to pay severance pay also does not generally apply to businesses with less than 15 employees (including casual and part time employees).

However, some WA awards have specific severance pay requirements that apply to all businesses, including those with less than 15 employees, and/or provisions that do apply to one or more of the employee groups listed above. 

The Redundancy payments page lists the amount of severance payable to employees and lists those WA awards under which businesses with less than 15 employees must make severance payments.

Employers can apply to the Western Australian Industrial Relations Commission to have the severance payment varied if they:

  • do not have the capacity to pay; or
  • find acceptable alternative employment for the employee.

Visit the Redundancy information page for more information on redundancy.

Employers should also check any specific provisions in the relevant WA award which may provide more favourable redundancy entitlements than those outlined above.

Transferring an employee to a lower paid job

Where an employer decides to introduce changes to the organisation or structure of a business in response to the COVID-19 coronavirus and these changes are likely to have a significant effect on an employee – such as requiring the transfer of the employee to lower paid duties – the employer must first hold discussions with the employee and consult with all employees who may be affected by the decision. If an employee nominates a union to represent them, that union must also be notified and consulted.

Transferring an employee to lower paid duties

As a general principle, transferring an employee to lower paid duties can only be done with the agreement of both the employer and employee. An agreed variation to an employee’s contract of employment which transfers an employee to lower paid duties may amount to a termination of the original contract of employment and the creation of a new contract.

In this situation, an employer would be obliged to provide notice of termination (of the original contract) or payment in lieu of notice. The amount of notice of the transfer is the same notice the employee would have been entitled to if their employment had been terminated.

Information on notice periods is available on the Dismissal notice periods and Redundancy notice periods page.

A notice period is to be paid according to the employee’s higher paid duties under the original contract of employment. Payment in lieu of notice, where the employee is now working in lower paid duties, equals the difference between the amount the employee would have been paid according to their original (higher paid) duties and their now lower paid duties hours for the duration of the notice period.

Is an employee required to accept a transfer to lower paid duties?

As a general principle, an employee is not required to accept a transfer to lower paid duties. Where an employee refuses to accept an employer’s decision to transfer the employee to lower paid duties, the employee may be able to argue that the employer has effectively terminated the contract of employment. The employer would then be required to provide notice of termination or payment in lieu of notice and may be required to pay redundancy pay to a full time or part time employee. 

However, there may be provisions in an award, industrial agreement or contract of employment which address the circumstances in which an employer may transfer the employee to lower paid duties without the employee’s agreement. Employers should comply with these provisions.

Changing working hours where a business has been impacted 

Where an employer decides to make changes to the organisation or structure of a business in response to the COVID-19 coronavirus and these changes are likely to have a significant effect on an employee – for example, significantly decreasing or increasing the employee’s working hours – the employer must first hold discussions with the employee and consult with all employees who may be affected by the decision. If an employee nominates a union to represent them, that union must also be notified and consulted.

Reducing a full time or part time employee’s regular working hours

As a general principle, a variation to an employment contract which reduces a full time or part time employee’s regular working hours can only be done with the agreement of both the employer and employee. An agreed variation which reduces an employee’s regular working hours may amount to a termination of the original contract of employment and the creation of a new contract.

For example, changing a full time employee to a part time employee is a fundamental change to the employee’s original contract of employment which impliedly terminates the contract and creates a new contract. In this situation, an employer would be obliged to provide notice of termination (of the original contract) or payment in lieu of notice. The amount of notice of the reduction in working hours would be the same notice the employee would have been entitled to if their employment had been terminated.

Information on notice periods is available on the Redundancy notice periods and the Dismissal notice periods page.

A notice period is to be paid according to the employee’s working hours under the original contract of employment. Payment in lieu of notice, where the employee is now working reduced hours, equals the difference between the amount the employee would have been paid according to their original working hours and the reduced hours they are now working for the duration of the notice period.

Is an employee required to accept a reduction in working hours?

As a general principle, a full time or part time employee is not required to accept a reduction in working hours. Where a full time or part time employee refuses to accept an employer’s decision to reduce the employee’s working hours, the employee may be able to argue that the employer has effectively terminated the contract of employment. The employer would then be required to provide notice of termination or payment in lieu of notice and may be required to pay redundancy pay. 

However, there may be provisions in an award, industrial agreement or contract of employment which address the circumstances in which an employer may change a full time or part time employee’s working hours without the employee’s agreement. Employers should comply with these provisions.

Further information

Visit the WA Government website at www.wa.gov.au for information on the COVID-19 coronavirus, including the latest health and police advice. 

Department of Health WA

Australian Department of Health

Workplace health and safety

Worksafe’s ‘What can be done to prepare for the possibility of a viral outbreak such as novel Coronavirus’ page has information on the responsibilities and entitlements under the Occupational Safety and Health Act.

Small business assistance

Small businesses who are seeking information on available assistance should contact Small Business Development Corporation on 13 31 40.

 

 

 

 

 

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