Transitioning back to work ‘COVID-19 safe’

By Jessica Pratt in Legal Updates Posted May 11, 2020

As the state and federal governments strive to keep Australia’s COVID-19 health crisis under control by maintaining a ‘flattened curve’ and containing outbreaks, much of the focus is shifting to combating the economic crisis caused by the pandemic, by gradually lifting restrictions and permitting businesses to re-open.

On Friday 8 May 2020, Prime Minister Scott Morrison announced a national 3-step framework to guide the removal of restrictions with a view to achieving a ‘COVIDSafe’ society and thereby facilitate rapid economic recovery in Australia.

Step 1 of the plan involves permitting social catch-ups (up to 5 visitors to homes and 10-person public gatherings, including sporting activity) and the gradual re-opening of premises such as restaurants, cafes, schools, playgrounds and community centres. Open-house inspections and auctions are able to resume (subject to limits on attendees) and weddings and funerals will not need to be quite so tiny. But – it is critical to note that:

  • all activities remain subject to physical distancing requirements and hygiene considerations;
  • whilst the framework was agreed to by the National Cabinet, it will be up to each state and territory to determine when and in what order to implement each aspect of the Step 1 restriction loosening.

Prime Minister Morrison indicated that working from home will continue if it ‘works’ for both employers and employees – whereas Premier Daniel Andrews has directed Victorians to work from home where possible.

Whilst at present the specific regulations that pertain to each state and territory differ considerably, we share below some FAQs relating to some key employment issues that businesses are likely to face as we take the first big step towards emerging from (the various levels of) lock down due to COVID-19:

1. What resources are there to guide me on re-opening my business in a ‘COVIDSafe’ manner?

Government has designated SafeWork Australia as the primary source of information for businesses to effectively manage COVID-19 safe workplaces. Helpfully, SafeWork Australia has updated its website to include COVID-19 information for workplaces to assist employers to understand, based on their industry, the duties under work health and safety laws, the rights of workers, and obligations with respect of cleaning workplaces.

SafeWork Australia has developed a comprehensive COVID-19 toolkit for businesses with a range of resources dealing with topics including:

  • how to keep workers safe
  • COVID-19 workplace considerations;
  • working from home considerations;
  • physical distancing considerations;
  • cleaning considerations;
  • considerations for undertaking a risk assessment;
  • example risk registers;
  • cleaning fact sheet; and
  • scripts for conversations with clients and customers about COVID-19 measures your business is adopting.

2. Can I direct employees to download the COVIDSafe app?

The short answer is no – you cannot direct or require your employees to download the COVIDSafe app or to use it (irrespective as to whether the device is owned by the individual or the business), or take any adverse action against them on the basis that they have not downloaded the app or are not using it.

The COVIDSafe app was released by the Australian Government to enable state and territory health authorities to undertake expeditious contact tracing of individuals exposed to COVID-19. It is a voluntary application that uses Bluetooth signals to record data about ‘close contacts’ with other users. When a user tests positive to COVID-19 they can elect to upload the data on their device to the National COVIDSafe Data Store, to enable close contacts to be notified that they may have been exposed to COVID-19. It is a voluntary initiative and relies on uptake by a significant proportion of smartphone users to protect the community from the spread of COVID-19 as restrictions start to be lifted.

The Minister for Health has made a determination under the Biosecurity Act 2015 (Determination) to provide strong interim privacy protections in respect of information provided voluntarily through the app and ensure that access would be restricted to authorised state and territory health officials.

Relevantly, and among other things, the Determination sets out that a person must not require that another person:

  • download COVIDSafe to a mobile telecommunications device; or
  • have COVIDSafe in operation on a mobile telecommunications device; or
  • consent to uploading COVIDSafe app data from a device to the National COVIDSafe Data Store.

In addition, a person must not refuse to enter into a contract with a person, take adverse action against a person, refuse to allow a person to enter premises, refuse to allow a person to participate in an activity, refuse to receive goods and services from a person, or refuse to provide goods and services to a person on the ground that the person has not downloaded to their device, or has on their device, the COVIDSafe app. A breach of this Determination is a criminal offence.

The requirements set out in the Determination have been incorporated into draft legislation, the Privacy Amendment (Public Health Contact Information) Bill 2020 (Draft Legislation) that Government intends to introduce to Parliament this week. The legislation will include additional privacy protections, for example, it sets out a process for COVIDSafe data to be deleted at the end of the COVID-19 pandemic and users to be notified accordingly and confirms that data collected is ‘personal information’ under the Privacy Act 1988 (Cth) (Privacy Act). A breach of the Draft Legislation, once passed, will be a criminal offence, a breach of the Privacy Act, or both.

Organisations should note that the prohibitions extend beyond the employment relationship to apply to other stakeholders, such as contractors, suppliers, customers, and prospective employees.

3. I am looking to re-open my business and stagger start and finish times of my employees, can I do this?

To maintain physical distancing, alternative shift arrangements may need to be implemented to ensure fewer employees are onsite at the same time, as well as to ease public transport congestion during an employee’s commute.

There are some key considerations that should be front of mind for employers in this instance:

  • As a general rule, employers do not have a right to unilaterally change hours of work – in most cases, specific employee consent will be required.
  • When implementing changes to hours or rosters, employers may be under obligations under applicable contracts of employment, modern awards, or enterprise agreements to consult with employees about any change to hours of work. This may require employers to provide employees with information about the proposed change, invite employees to give their views about the impact of the change, and consider those views.
  • In some cases, an employer may have some flexibility to change start and finish times under span of hours clauses in an applicable modern award or enterprise agreement – seek advice before acting.

If you are an employer who qualifies for the JobKeeper scheme, you may (subject to certain conditions) ask employees to agree to perform their duties at different times compared with the employee’s ordinary hours of work. Provided certain conditions are complied with, employees must consider and must not unreasonably refuse such a request.

In respect of changes to ordinary hours, it is best practice for employers to:

  • have regular and meaningful communication with employees about the effect the easing of COVID-19 restrictions will have on your business and any consequential changes to their employment arrangements; and
  • depending on your industry and state/territory, regularly assess remote working arrangements – including the extent to which your business is able to continue to facilitate remote working – noting the important work health and safety considerations related to COVID-19.

4. Some or all of my employees were stood down pursuant to a JobKeeper-related stand down direction – how do I bring them back to work?

If the employee will be resuming their ordinary hours and working arrangements, in most cases you can simply communicate the direction to return to work to the relevant individuals – making sure to confirm it in writing.

If you are seeking to bring an employee back to work on reduced hours, specific advice should be sought. Provided you meet certain requirements, as a JobKeeper employer you may be able to implement reduced hours provided you are being reasonable.

(NB If your employees were not stood down under the temporary JobKeeper provisions of the Fair Work Act, specific advice should be sought – issues such as when the ‘work stoppage’ on which you relied in standing down employees ends will be important.)

5. I am re-opening my business, do I need to implement regular temperature checks of employees?

In most workplaces – no, regular temperature checks won’t be required to comply with health and safety obligations. Whilst in certain workplaces they may be necessary or reasonable, in others they may be of limited use – as discussed below.

Under applicable work health and safety laws, employers are generally required to ensure the health and safety of workers and others in the workplace, so far as is reasonably practicable. Hazards are to be identified and risks eliminated or minimised through control measures. Although regular temperature checks of employees may seem like a viable control measure, the guidance from SafeWork Australia is that there may be little benefit in conducting temperature checks on workers and others for a number of reasons, including:

  • it will not indicate whether the employee or other person has COVID-19 or not;
  • it only identifies symptoms and a person may be asymptomatic or on medication;
  • the person’s temperature could be for a reason unrelated to COVID-19.

SafeWork Australia has indicated that there may be circumstances where temperature checks are required or reasonable, for example:

  • FIFO workers;
  • agricultural workers;
  • hospital workers; or
  • aged care workers.

Measures such as physical distancing, good hygiene practices, and rigorous cleaning are important recommended measures to control the risks of a COVID-19 outbreak in your workplace. Refer to the SafeWork resources referred to above for more in depth information and seek specific advice in respect of your workplace and set of circumstances.

This is general information advice only, is current as at 11 May 2020 and may not be applicable to your organisation or situation. It is not a substitute for legal advice and it is important that you obtain specific advice.

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