Returning to work under COVIDSafe workplace plans and other recent trends

Articles Written by Jan Dransfield (Partner), Ruveni Kelleher (Partner), Lucienne Mummé (Partner), Louise Russell (Special Counsel), Katelyn Iacono (Law Clerk)

Last week the Australian Government announced a three step framework for a COVIDSafe Australia. The states and territories are able to implement changes based on their specific COVID-19 conditions. This means the states are implementing the various measures in step 1, step 2 and step 3 according to their own timetables.

The Australian Government framework provides for a return of employees to workplaces with a COVIDSafe Workplace Plan. The National COVID-19 Coordination Commission (NCCC) has released a template COVIDSafe Plan, underpinned by the Safe Workplace Principles which were released on 24 April 2020.  Under these Principles employers and workers must work together to:

  • promote safe work practices as they reopen;
  • review the way they work to mitigate any risks; and
  • control and respond to the transmission of COVID-19 in the workplace.

Industry specific COVID-19 guidance has also now been published on the Safe Work Australia (SWA) website.

In order to comply with their work health and safety obligations, employers will need to access this information and undertake risk assessments to develop their COVIDSafe Workplace Plan in preparation for employees and other workers, including clients and visitors, being able to return to the workplace.  Directors and officers must also exercise due diligence regarding COVID-19 risks to comply with their obligations under the legislation.

Social distancing and good hygiene

Social distancing and hygiene measures must be implemented in a way that minimises the risk in the workplace. This means considering issues such as:

  • how physical distancing of 1.5 metres is implemented in the particular workplace;
  • how movement around the workplace will be controlled to ensure social distancing is maintained, including car parks, entrances, exits and lifts;
  • what changes may need to be made to crib and meal rooms;
  • the staggering of crib and meal breaks.

Good hygiene will require education and appropriate signage. Consideration will also need to be given to ensuring the availability of hand sanitiser and cleaning products, and the regular cleaning and disinfecting of workplaces, particularly benches or equipment where it is likely that the surfaces will be touched.

With respect to cleaning and disinfecting workplaces, if this is to be undertaken by a contractor, what assessment has been done, for example, of the process followed by the contractor to effect the cleaning and disinfecting, and the product being used by the contractor in that process, including whether it contains the recommended alcohol content?

Other considerations

Employers should also consider:

  • whether they will mandate daily temperature testing, and/or the completion of health declarations or a questionnaires before workers and others enter site;
  • the arrangements for workers in identified vulnerable groups, such as those over 65 with a chronic medical condition, or aged over 70;
  • what information, training and instruction will be provided to workers before they return and what information will be displayed in the workplace or communicated in other ways, such as a message when an employee first logs into the IT system;
  • what changes will need to be made to how work is arranged, and the hours of work.  For example, will work start and finish times be staggered, or will there be a roster of when employees can come into the office; and
  • the obligations on employees who are unwell and decide to be tested for COVID-19, any employee who tests positive to COVID-19 and emergency management plans.

In considering the answers to these questions, employers will need to take into account any obligations or requirements under applicable legislation and industrial instruments, for example, in respect of changes to hours of work. Employers also need to be careful to balance these measures against their obligations under privacy legislation.

Checklist and took kits

A number of check lists and tool kits based on the information on the SWA website are likely to need to be developed based on each employer’s specific business requirements and risk assessment.  For example, a check list of what is to occur where an employee exhibits flu like symptoms and arranges to be tested for COVID-19.  The checklist should set out the particular responsibilities, including obligations on the employee to advise the employer if they are unwell, and secondly, to advise their employer if they undertake a test for COVID-19 and the outcome of that test.

Consultation

The COVIDSafe Workplace Plan will also, of course, need to be the subject of consultation with employees and their representatives (if applicable).  Preferably, this consultation should occur before employees return to the workplace.  We expect that, in some workplaces, employees or employee representatives may have questions, or may not necessarily accept what the employer is proposing.  Accordingly, it is important that the employer allows time for it to consider feedback from employees and their representatives before finalising the risk assessment, COVIDSafe Workplace Plan and the associated necessary actions.

Specific guidance is provided by industry on the SWA website in respect of:

  • Vulnerable workers
  • Emergency plans
  • COVID-19 in the workplace
  • Heath monitoring
  • Physical distancing
  • Hygiene
  • Cleaning
  • PPE
  • Masks
  • Gloves
  • Mental health
  • Work related violence
  • Family and domestic violence
  • Working from home
  • Training
  • Workers compensation

Employers can also access information in respect of their general obligations in respect of consultation and risk assessments.

Fair Work Commission Trends

Unfair dismissal

The Fair Work Commission is experiencing a surge in unfair dismissal cases, which have increased by sixty percent since the same time last year.  This is likely to be directly related to higher unemployment as a result of job losses flowing from COVID-19, and the reduction of recruitment activity in the current uncertain economic climate. Where the termination is by way of redundancy and the employer claims the Fair Work Commission does not have jurisdiction to deal with the claim because the termination was a “genuine redundancy” as defined in the Fair Work Act 2009, the challenge by employees is primarily whether or not the employer has met the necessary consultation obligations.

JobKeeper Disputes

Sixty percent of JobKeeper disputes notified to the Fair Work Commission have subsequently been withdrawn. This appears to be largely as a result of recent clarification about the rules regarding the ‘one in, all in’ principle, which prevents employers choosing between eligible staff who can be covered by the scheme, and clarification of the scope of the Fair Work Commission’s jurisdiction in JobKeeper matters.

Disputes before the Fair Work Commission concern, for example: whether a JobKeeper enabling stand down is because of changes to business attributable to the pandemic, or the Government’s response to it; whether an employee can be usefully employed for the employee’s normal days or hours; the reasonableness of an employer’s directions or an employee’s refusals to comply with the directions, as well as compliance with consultation requirements.  Employers should seek advice about these matters as the Fair Work Commission has the power to set aside JobKeeper enabling directions, substitute them with different orders, and make other orders it considers appropriate.

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).

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