Redundancy during the Coronavirus Pandemic. What are my rights?
Most people who have found our web site – Unfair Dismissals Australia – have concerns about their current workplace situation and are looking for advice during these uncertain times, typically in the following areas:
- Unfair dismissals
- Unlawful dismissal
- Harassment and bullying
- Award rates and conditions (Ring Workplace Ombudsman 131394)
- Wages and money owed to employees (Ring 131394)
- Disputes within the workplace
If you are still employed and your enquiry is to do with wages, rates or money owing the simple and most effective option for you is to call the Federal Workplace Ombudsman’s office on 131394.
Employees scramble as they try to figure out what to do about the uncertain times that lie ahead due to the Coronavirus (COVID19) pandemic. Employers begin to become vague and hard to reach as they put plans in action to lay off thousands of workers whereby employees and their families get first wind of this in the media. Redundancy seems inevitable but does not mean you should walk away empty handed. At Unfair Dismissals Australia we know every law and can ensure every stone goes unturned to get you the compensation you deserve making these difficult times easier for you and your family. The Coronavirus pandemic brings with it rules, regulations and loopholes that govern as to how employers operate and issue redundancy to employees who wait in anticipation.
Did You Know?
If you feel you are about to unfairly dismissed or made redundant from your company you can call us here at Unfair Dismissals Australia and remain anonymous to get advice and an idea on your options going forward? Often employees are not aware of their rights or even that unlawful termination claims exist. It is well worth your time calling 1800 333 666 to find out how we can help you going forward.
Information about Employee Stand downs
The option for employers to stand down employees due to the coronavirus crisis is very fact dependent and an employer should exercise the option cautiously. The employer must be able to demonstrate that:
- There is a stoppage of work.
- The employees to be stood down cannot be usefully employed (This is not limited to the typical work the employee performs).
- The reason for the stoppage must also be one that the employer cannot reasonably be held responsible for.
Coronavirus and Australian workplace laws
Last updated 26 March 2020 | Published 4 February 2020
When considering our guidance, we encourage employees and employers to work together to find the most beneficial and workable solutions that suit their individual workplaces and staff. We are all facing difficult and unprecedented circumstances, and it’s in everyone’s interests to try to reach productive and cooperative solutions. Employers and employees can explore options that suit their individual needs, including taking different forms of leave (paid and unpaid), working from home, or taking extra precautions in the workplace.
Recent updates – 26 March 2020
- When can employees be stood down without pay?
- On 24 March 2020 the Fair Work Commission made a determination to vary the Hospitality Award. The new Schedule L applies from 24 March to 30 June 2020. The changes improve award flexibility during the outbreak of coronavirus for classifications and duties, hours of work for full-time and part-time employees and annual leave. Find out more: Hospitality Award flexibility during the outbreak of coronavirus.
- What if an employee cannot attend work because their child’s school or childcare centre has closed due to coronavirus?
- Can an employer change an employee’s regular roster or hours of work?
- Government information about coronavirus
Recent updates – 24 March 2020
We’ll continue to update the information on our website as the situation develops and as needed. The information provided is current as at the time of the last update. It is not legal advice but represents the views of the Fair Work Ombudsman based on the best available information. We encourage you to regularly check this page for more information.
On this page we provide links to important Government information about coronavirus.
We also answer frequently asked questions about workplace obligations and entitlements if you’re affected by the outbreak of coronavirus (also known as COVID-19).
Australian Government information about coronavirus (COVID-19)
- Australian Government Department of Health – for the latest information on the virus, including requirements and conditions for isolation and quarantine periods and when testing should be sought
- Services Australia – for information and services to help you if you’re affected by coronavirus, including Centrelink payments and support
- Australian Government Treasury department – for information on the Federal Government’s economic response to coronavirus, including information on support for individuals, businesses and the economy.
- Australia.gov.au – for the latest coronavirus news, updates and advice from government agencies across Australia
- Business.gov.au – for information about financial assistance, eligibility and timing for new government support for Australian businesses.
Health and safety in the workplace
- Department of Health – information for employers about coronavirus, who is most at risk in the workplace, and what to do to help stop it spreading
- your State or Territory Public Health Unit’s website – for local coronavirus response activities and advice
- Safe Work Australia – for information and referrals about managing the risks of contracting coronavirus in the workplace
- your State or Territory workplace health and safety body – who can also assist with workers compensation enquiries
- Comcare (Commonwealth) – for Australian Government employees and for employees of organisations which self-insure under the scheme
- Smart Traveller’s webpage on coronavirus
- Office of the Australian Information Commissioner (OAIC) – for information on privacy obligations for private sector employers (including health sector providers) relating to coronavirus
- Communicable Diseases Network Australia (CDNA) – for nationally consistent advice and guidance to public health units on coronavirus (COVID-19).
Enforceable government directions
“Where an Australian state Government or officer makes an order that is enforceable under the law (an enforceable government direction) and which prevents an employee from working, an employer is not required to pay the employee (unless the employee uses paid leave entitlements).” – Fairwork Australia
This could occur, where a work site or workplace has been closed down either temporarily or indefinitely. This does include the isolation measures which have been enforced to reduce the risk of Coronavirus spread.
The coronavirus (COVID-19) situation is continually changing as we gather new information and adjust according to the statistics and victims of the virus. Due to these reasons state governments will continually be changing rules over the upcoming months.
“In line with recent government announcements, some enforceable government directions have already been, or will soon be, issued with respect to restaurants, gyms, pubs, clubs and other services deemed non-essential.” – Fairwork.gov An example of this are Victorian and New South Wales governments closing work to reduce social gatherings in the space of 12pm to 12am.
As a result of the new rules being issued, many affected businesses will likely have the right to stand down employees, if they cannot usefully be employed. See When can employees be stood down without pay?
Workplace obligations and entitlements
We encourage all Australian employees and employers to work together to find solutions appropriate to the circumstances of the current working laws. This may include taking different forms of leave, working from home, or taking extra precautions in the workplace.
If you have an urgent enquiry about your workplace obligations or entitlements or feel you have been unfairly dismissed, please contact us on 1800 33 666
When can employees be stood down without pay?
Employers and employees are encouraged to work together to find appropriate solutions that suit the needs of individual workplaces and staff. Employees who are stood down without pay remain employed for the period of the stand down.
Under the Fair Work Act, an employee can only be stood down without pay if they cannot be usefully employed because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible.
Whether the option of standing down employees is available in circumstances relating to coronavirus is very fact dependent and an employer should exercise the option cautiously. The employer must be able to demonstrate that:
- there is a stoppage of work
- the employees to be stood down cannot be usefully employed (which is not limited to the work an employee usually performs)
- the cause of the stoppage must also be one that the employer cannot reasonably be held responsible for.
If an employer unlawfully stands down employees without pay, the employees will likely be able to recover unpaid wages.
Employers cannot generally stand down employees simply because of a deterioration of business conditions or because an employee has coronavirus.
Some examples of when employers may be able to stand down employees include:
- if there was an enforceable government direction requiring the business to close (which means there is no work at all for the employees to do, even from another location)
- if a large proportion of the workforce was required to self-quarantine with the result that the remaining employees/workforce cannot usefully be employed
- if there was a stoppage of work due to lack of supply for which the employer could not be held responsible.
Is a contract involved?
Enterprise agreements and employment contracts often contain rules and agreements about when an employer has the option to stand down an employee without pay. Employers should always consider whether their obligations are impacted by any applicable enterprise agreement, award or policies.
If an employee is able to read their contract which does not contain any policies regarding stand downs it is under their best interest to contact an expert on 1800 333 666 to learn more about your options. If the employee does have rules written within their agreement regarding no pay during a stand down it does not hurt to contact Unfair Dismissals Australia to get clarification if one is unsure where they stand.
Please note, employers may not be required to pay employees for the period of a stand down but may still choose to pay their employees. Employees still acquire leave as normal for the duration of the stand down.
“On 24 March 2020 the Fair Work Commission made a determination to vary the Hospitality Award. The new Schedule L applies from 24 March to 30 June 2020. The changes improve award flexibility during the outbreak of coronavirus for classifications and duties, hours of work for full-time and part-time employees and annual leave. Find out more: Hospitality Award flexibility during the outbreak of coronavirus.” – Fairwork.gov
- Australian Government Department of Health – Find the latest information on the coronavirus, including requirements and conditions for isolation.
- Services Australia – Find work and employment information and services to help you if you’re affected by coronavirus.
- Australian Government Treasury department – Find information on the Federal Government’s economic response to coronavirus.
- Australia.gov.au – All the coronavirus news, updates and advice from government of Australia.
- Business.gov.au – Information regarding financial assistance and eligibility and all the Australian Government support for Australian businesses.