Insights & News

Kingston Reid’s ‘A word to the WISE’ podcasts cover a range of Workplace Relations,
Employment and Workplace Health & Safety issues for professionals working in this area.

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6 May 2020
Returning to the workplace or staying home…what public sector employers need to consider
May 6, 2020

Signs are encouraging that our communities will slowly start to return to normal. Students are returning to schools, the Premier has encouraged business to “have a go” at reopening their doors provided adequate safety measures are in place, more people are downloading the COVIDSafe app and encouragingly the curve continues to flatten. In this context, it is likely that within a few weeks, employees will be encouraged to return to the workplace.

It was impressive to see how quickly and effectively NSW government sector employees were able to transition to a largely remote workforce where required (acknowledging of course that many continued to work as normal).  It is evident that there are both the resources and processes in place to facilitate a productive and engaged workforce working from home.  Whilst feelings will no doubt be mixed; it is inevitable that for a lengthy period there will be a portion of the workforce who will remain working from home; even if it is for just a portion of the week.

Flexible work has long been available to all NSW government sector employees.  Given the evidence that is now available to employees to support an argument that flexible work is successful on a large scale, agencies and departments should now start thinking about the circumstances in which flexible work is not desirable and instead when you need employees to be physically present in the workplace.  The preparations that you make now will make the return of your employees easier to manage.  It will also assist you to identify which roles will have greater restrictions in terms of flexible work and to explain why some requests for ongoing flexible work cannot be accommodated.

Of course, maintaining social distancing and hygiene measures will be paramount to any successful return to work planning. COVID-19 safe workplaces will require significant changes for the many thousands of public sector employees who hot desk or work in open plan environments.  These, at least for a time, will require adjustments as hot desking becomes a thing of the past.

What questions do you need to answer?

  1. What work is best done in the office?

The recent period will have given you a clear indication of work which is simply more difficult to manage and complete from home.  It may be work that is more difficult for a team to complete when they all work remotely, or work that requires access to resources that are not available from home.

Identifying the work that is best performed in the office will enable you to identify which roles will require less flexibility moving forward.

  1. When is it preferable to have a team working in person, and why?

No doubt in the last month, you have experienced the challenges that can arise when an entire team is remotely located.  Identifying and specifying that work which requires a team to work face to face either all or some of the time, will enable you to justify why certain teams may have less flexibility than others.

  1. What works from home?

In the same way that you have been able to identify which work is not done as effectively from home, you will also have been able to identify work which can be done efficiently and effectively at home. Employees who perform that work, and who request ongoing flexibility should be more easily accommodated.

  1. When does working from home cause a major disruption to the flow or completion of work?

It is important to identify those projects or other pieces of work that will be impacted if those people working on them are working from home. Those employees working on these projects, or pieces of work, may have less flexibility than others.

  1. How does the physical office environment impact on the above?

Employees who previously hot desked or who work in open plan offices will be anxious to return where there is inadequate consideration of the physical environment and hygiene measures. A natural barrier to full integration, open plan layouts will require proactive planning around staggered working days and start times. Clear communication regarding expectations will be key.  The removal of hot desks, greater distancing and staggered starts will be the norm.

  1. What about collaboration and team dynamics?

Separate from the details of specific tasks and operational requirements, a big factor in requiring physical presence is the need for employees to collaborate, supervise, coach, learn, interact and relate to one another in a physical environment. While this can be done remotely, it is often a poor substitute for a physical working environment and this should not be discounted. This is particularly important for very junior roles and those in supervisory or managerial positions.

How do you manage flexible work by a larger portion of your team on an ongoing basis?

As it is likely that there will be an increase in the number of employees working from home, it will be more difficult to maintain cohesiveness and inclusion once the workforce is split.  You will need to implement practices to:

  1. Mitigate against isolation.
  2. Ensure work is allocated in a fair and equal manner.
  3. Ensure work and performance requirements are clear and demonstrable.
  4. Address issues quickly when they arise.
  5. Ensure that you can properly manage your employee’s performance as well as them meeting deadlines and achieving outcomes.

Remember there are steps you can take to require employees to perform their functions from the workplace.  It is preferable however to consult directly with your employees to resolve issues and questions that arise.

What safety issues do you need to consider?

Of course, the issues identified above raise a number of health and safety issues employers will need to consider when returning workers back into the workplace. We have identified a number of these issues in our article “Are you COVID-19 ready to get back to your workplace?”. These include:

  • Have you identified the physical and psychological risks of your returning workplace arrangements, and what specific controls do you need to implement to address those risks?
  • How will you consult with your workforce about the proposed arrangements including those workers who will continue to work from home?
  • What hygiene and distancing measures do you need to implement to reduce the COVID-19 risks and are compliant with WHS legislation (including applying the hierarchy of controls)?

It will be crucial that you remain up to date with Federal and State health authority updates and information from Safe Work Australia’s COVID-19 Information for Workplaces pages to meet your health and safety obligations.

COVID-19 has given both departments and agencies the chance to lead the way in properly assessing how to make the most of working from home.  Whilst there will be employees who are happy to return to the office as soon as possible, there will be others who want to continue to work from home. It is important that whatever model you implement works for your team, your department or agency and you. Giving consideration to these factors now will assist both with returning your employees to the workplace and managing an increased remote workforce, both now and in the future.

Lucy Shanahan
+61 2 9169 8405

Christa Lenard
+61 2 9169 8404

John Makris
+61 2 9169 8407

1 May 2020
Are you COVID-19 ready to get back to your workplace?
May 1, 2020

The New South Wales, Queensland and Western Australian Governments recently announced plans to slowly wind back social distancing restrictions from late April 2020 and early May 2020. The Victorian Government has indicated it won’t take similar steps until it is certain that there is no undetected community transmission.

The Prime Minister is urging schools to re-open and has recently indicated that Australia is ‘not too far away’ from easing coronavirus restrictions. And, he says, the COVIDSafe app is the ‘ticket’ to ending COVID-19 (but that’s a discussion for another time).

What does this mean for workers returning to workplaces where the COVID-19 risks in the community remain?

The official position, it appears, is that Australians should continue to work from home unless you can’t work remotely. There are many industries which have been ‘identified’ as essential, such as health, aged care, education, construction and supermarkets. Those workers have continued working from their workplaces because working from home is simply not an option or their services are essential (eg the supply of toilet paper). There are many other workplaces who have implemented unique hybrid arrangements which have included partial working from the workplace location and partly from home. Others have their workforces working productively from home.

Let’s face it: For many of us who have been working from home, we are itching to get back to the workplace (even if it’s just so we can attend Friday afternoon drinks).

As the COVID-19 curve hopefully continues to flatten, and as restrictions are hopefully eased, we need to think about how we are going to transition our workforces back into the workplace.

Here are some things to think about when transitioning part or all of your workforce back into the workplace:

Managing Workspaces
1 What physical and psychological risks need to be assessed?
2 Are the controls you have identified reasonably practicable and in accordance with the hierarchy of controls? See below the Department of Health’s guide to the Hierarchy of Controls.
3 How have you consulted with your workers about the risks and the controls?
4 What are the arrangements for returning staff? For example, will staff return to work full-time, part-time, or according to split or staggered shifts? If so, for how long?
5 What will social distancing look like upon their return and what, if any, modifications need to be made to the workplace layout to meet the distancing requirements?
6 How do you stay at least 1.5 meters apart, whilst at the same time having 4 square meters of space per person? (yes, you are supposed to do both).
7 Will social distancing mean that work tasks need to be done in a different area or a different way?
8 For staff who may continue to work from home, how are you checking that they are following safe working procedures and have they completed a checklist relevant to their work?
9 What processes are you going to implement for contractors, customers and other third parties, eg delivery drivers?
10 Will you continue to use electronic communications, such as Zoom and Teams?
Staying Healthy
1 How will you continue to maintain the use of hygiene measures, eg hand sanitizer and disinfectant wipes?
2 What information and reminders will you provide about the hygiene measures, eg posters on how to stay hygienic?
3 How often will you clean your workplace?
4 Who will clean the workplace?
5 How can you be satisfied that the cleaning is thorough and regular?
6 How are you going to keep frequently touched areas and surfaces clean and at what intervals will they be cleaned?
7 How will you make sure that workers understand they need to stay home if they are unwell?
8 If someone is showing symptoms at work (including cold, flu or other respiratory problems), what will you do with them?
9 What amenities do you have to quarantine sick workers and how will you ensure that they are clean after an affected worker has used them?
Be Informed and Prepared
1 How are you going to keep up to date with Federal and State health authorities’ COVID-19 information and guidance and communicate this information to your staff?
2 Does your Pandemic Plan need to be reviewed and will it be sufficient in the event of a COVID-19 outbreak at the workplace?
3 Do you have sufficient and appropriate cleaning products and PPE available on site to deal with an outbreak?
4 Do you have a continuity plan to keep your business on track?
5 How will you keep the lines of communication open with your workforce to address any COVID-19 concerns they have?
6 What steps do you take if your staff or other persons at your workplace do not follow the procedures of policies you have implemented to reduce COVID-19 risks?

There may be more things to think about that are specific to your business.

As to exactly when back-to-workplace transitioning occurs, that is anyone’s guess (stay tuned to the Chief Medical Officer).  However, these issues can’t be considered and implemented overnight. Your business will need to plan for getting everyone back safely.

Please stay in touch with the current advice from the health authorities.

Our COVID-19 Resources Page will be updated as information and guidance becomes available. And of course, if you just want to have a chat to break that COVID-19 isolation monotony, give us a call.

Source: Department of Health

John Makris
+61 2 9169 8401


8 April 2020
JobKeeper legislation delivers workplace flexibility as well as financial relief
April 8, 2020

A Bill proposing amendments to the Fair Work Act 2009 (FW Act) has been introduced into Parliament today, 8 April 2020.

The amendments propose temporary changes to the FW Act to assist employers who qualify for the JobKeeper scheme to deal with the economic impact of COVID-19.

There are three categories of amendments.

  1. JobKeeper-enabling stand down
  2. Alteration to duties and location of work
  3. Agreement to change days of work or take annual leave

JobKeeper-enabling stand down

The JobKeeper enabling stand down provisions allows an employer to alter an employees’ hours of work by directing an employee to:

  • not work on a day the employee would usually work
  • work for a lesser period than they would ordinarily work on a particular day
  • work a reduced number of hours (including no hours).

Any such direction may only occur where it is:

  • safe; and
  • the employee cannot be usefully employed at their normal days or hours because of changes attributable to COVID-19 pandemic; or government initiatives to slow the spread of COVID-19.

The direction must be in writing and requires the employer to:

  • give the employee written notice of the intention to give the direction; and
  • provide the notice at least 3 days (or less, by agreement) before the direction is given; and
  • consult with the employee (or a representative of the employee) and keep written records of the consultation

The direction will cease to have effect no later than 28 September 2020.

This amendment will not change the hourly rate of an employee subject to a direction.

The JobKeeper enabling stand down direction does not apply to the employee during a period when the employee:

  1. is taking paid or unpaid leave that is authorised by the employer; or
  2. is otherwise authorised to be absent.

Alteration to duties and location of work

This amendment allows an employer to alter the duties performed by an employee or the location of the employee’s work.

An employee may be directed to perform alternative duties if the duties are:

  • safe;
  • reasonable in all the circumstances;
  • within the skill and competency of the employee; and
  • reasonably within the scope of the business in question

The employee must not earn less than:

  • what they are currently earning; or
  • the base rate of pay applicable to the duties the employee is performing as set out in an industrial instrument,

whichever is greater.

An employee may be directed to perform duties at a different location where:

  • the place is suitable for their duties
  • the place does not require unreasonable travel
  • the location is safe

A direction to alter duties or location is only reasonable to the extent that it is necessary to ensure the employee’s continuing employment.

Agreement to change days of work or take annual leave

Changing days of work
An employer who qualifies for JobKeeper in relation to an employee and that employee to agree to the employee performing work on different days or at different times during a period.
The agreement is authorised if the employer qualifies for the JobKeeper scheme in relation to that employee; and if

  • the performance of the duties on different days or at different times is safe, having regard to the nature and spread of Coronavirus and reasonably within the scope of the employer’s operations; and
  • the agreement does not reduce the employee’s number of hours of work compared with the employee’s ordinary hours of work (noting the ability to reduce hours under section 789GDC of the proposed Bill).

Employees must consider and must not unreasonably refuse the employer’s request for agreement to these arrangements. In the absence of an employee’s agreement the matter could be settled by the FWC.
The circumstances of the workplace will inform what is reasonable.

Taking annual leave
An employee can consider their employer’s request for them to take paid annual leave and can agree to take paid annual leave at half pay.

If an employer qualifies for the JobKeeper scheme in relation to an employee, the employee must consider and must not unreasonably refuse the employer’s request to take annual leave, provided that the leave arrangement will not result in a leave balance of less than 2 weeks. In the absence of an employee’s agreement the matter could be settled by the FWC.

Employees and employers can also agree to the employee taking twice as much annual leave at half the employee’s rate of pay for a period.

An employee or employer may seek review of a decision made under the amendment by the Fair Work Commission (FWC). The FWC may review through the usual means including conciliation or arbitration.

Any contravention of the amendments may result in penalties.

For additional information and resources relating to the workplace impacts of COVID-19, visit our COVID-19 Resources page.


Christa Lenard
+61 2 9169 8404

Sophie Baartz
+61 2 9169 8416

Xanthe Shaw
+61 8 6381 7055

7 April 2020
Work Health and Safety Amendment (Review) Bill 2020
April 7, 2020

With the outbreak of COVID-19 being labelled the biggest thing to impact Australia’s workforce, employers would be forgiven for assuming that everything else has been on hold.

That is not the case and businesses need to be aware of possible legislative amendments to the New South Wales Work Health and Safety Act 2011 (the Act), made by the Work Health and Safety Amendment (Review) Bill 2019 (the Bill). The Bill, if passed, will implement a number of recommendations outlined in Ms Marie Boland’s review of work, health and safety laws (WHS).

It attempts to strike a balance between the objective of maintaining nationally consistent work health and safety regulation and the NSW Government’s goal of reducing risks to workers’ safety.

Key amendments

Category 1 offences

Currently, in order to obtain a conviction for a Category 1 offence (being recklessness), it must be established that a Person Conducting a Business or Undertaking (PCBU) made a conscious choice to take an unjustifiable risk, which resulted in an injury or death of a worker.

If the Bill is implemented, “gross negligence” will be included alongside recklessness as a fault element. This means that it is no longer necessary for a prosecutor to establish that the PCBU made a conscious choice and, consequently, it will become easier to successfully prosecute a Category 1 offence.

Insurance against WHS fines

The Bill will make it an offence, without a reasonable excuse, to provide, enter into, or benefit from an insurance or indemnity arrangement that covers liability for a monetary penalty under WHS laws. This regulates the longstanding common law public policy position that indemnity ought not be available for a criminal penalty.

There will be a transitional provision which provides that a person does not commit an offence for providing insurance or indemnity, or for taking the benefit of such insurance, if the insurance or indemnity was in force before the commencement date of the Bill and any payment made was not in relation to a penalty for an incident that occurred after the commencement date of the Bill.

Increased maximum penalties

The maximum fine for a category 1 breach will instantly increase from $3 million to $3,463,000 and from $600,000 to $692,500 for an officer (or individual who is a PCBU). This will be the first increase in the maximum penalties of WHS law in NSW since the law was harmonised from 1 January 2012.

The Bill will also increase other penalties arising under the Act, for example:

  • All penalties of $50,000 will be increased to $57,500. and
  • all penalties of $100,000 will be increased to $115,500.

Clarity surround manslaughter

While NSW does not appear to be following the other States in implementing specific industrial manslaughter provisions, the Bill will insert a note into Part 2 of the Act to make it clear that in certain circumstances the death of a person at work may also constitute manslaughter under the Crimes Act 1900 and may be prosecuted under that Act.

Choice of training

The Bill clarifies that health and safety representatives (HSRs) are entitled to choose their course of training and that the relevant PCBU and the HSR will consult each other about, and agree on, the reasonable costs associated with the training.

Investigative powers of workplace inspectors

The Bill will amend inspector’s powers under the Act to allow an inspector who has entered a workplace to exercise their section 171 investigative powers for up to 30 days.

Timeline for regulators to start a prosecution

The Bill will extend the time in which a person can request a regulator to bring a prosecution from 12 months to 18 months.

Application of the Act to dangerous goods and high-risk plant

The Bill will amend the Act to clarify that the Act applies to dangerous goods and high-risk plant that is stored, operated or used at premises that are not a workplace or for use in carrying out work.

When we will see these changes implemented?

As of 24 March 2020, the Bill had its first reading before the Legislative Council. However, given the uncertainty that follows COVID-19, the changes may not be implemented until late 2020.

These changes will be significant and businesses should use any down time created by the impact of COVID-19 upon their business to review their safety management systems and assess the impact of the proposed changes.


John Makris
+61 2 9169 8407

Erica Elliott
Special Counsel
+61 2 9169 8409

George Stent

2 April 2020
COVID-19 and Safety in Your Workplace
April 2, 2020

What Should you Be Doing?

We all know that the possibility of COVID-19 infection is a real one.

We also know that it is a workplace risk that needs to be managed by employers and Persons Conducting Businesses or Undertakings (PCBUs).

The risk controls we need to develop and implement may be COVID-specific, but the way we go about identifying, assessing and eliminating or minimising them is the same way in which the safety laws require us to tackle any other workplace risks.

So, you should be (at least) doing the following on a regular basis:

1. Comply with Government directives and advice

As a first and minimum step, your business should comply with national and state public health directions relating to COVID-19.

They are available on the Departments’ websites and you should check them frequently to make sure you are working with the most current information.

Current measures you should be taking include:

  • Reducing direct contact between workers and other persons, including:
    • Social distancing of at least 1.5 metres (and 1 person per 4sqm indoors),
    • Barriers or spacing between workstations, seated areas, etc.,
    • Modifying shifts and rosters to reduce peak periods,
    • Supporting flexible work arrangements where possible, including working from home.
  • Reducing environmental exposure, including:
    • Frequently cleaning and disinfecting of high traffic areas and shared surfaces,
    • Providing appropriate cleaning products and instructions for cleaning workspaces,
    • Providing amenities for personal hygiene and infection control,
    • Inspecting and reviewing air conditioning and ventilation systems.

2. Keep consulting

Your business must assess the risks of COVID-19 in consultation with workers, particularly when devising and implementing control measures to minimise the spread of the virus.

You should also be consulting with the people with whom you share a duty to keep your workers and workplaces safe, such as building managers, co-commercial tenants and (potentially) landlords.

We’re all in this together.

3. Don’t forget regulator notifications

Remember that PCBUs and employers may have notification requirements to safety regulators where any confirmed or uncontrolled exposure to serious illness, including COVID-19, occurs or where workers are admitted as in-patients in hospital as a result of exposure in the workplace.

4. Make sure what you’re doing is working

We all need to be regularly assessing the effectiveness of what we are doing to contain COVID-related infection risks in the workplace.

Keep up to date with Government advice.

Keep talking to your colleagues and fellow duty-holders.

Our best resources are our public health authorities. Listen to them and do what they tell you to do. The safety regulators are following their guidance and expect businesses and workers to do the same.

Not everyone is coming into the workplace now

That’s just where we are now.

You should be providing clear direction and guidance to workers about what is expected of them in terms of:

  • Knowing when to stay away from the workplace,
  • What they need to do if they become unwell,
  • What symptoms they need to know about,
  • Maintaining a safe working environment at home (we’ve put together a checklist of things to think about and you can access it here).

If people are coming into work you need to make sure that they have access to a hygienic workplace and that they maintain social distancing when they are at work.

Hygienic practices to be reinforced include:

  • Frequent and thorough hand washing,
  • Actively encouraging social distancing (including limiting access to other people in the workplace),
  • Covering mouths while coughing or sneezing,
  • Staying away from the workplace if they are unwell and encouraging them to seek medical advice.

Please remember that some members of your workforce will have different infection risk profiles and you need to pay special attention to keeping them safe.

Workers over 60 and indigenous workers over 50 can be more susceptible to infection and/or less able to fight off the virus if they catch it.

The same goes for people with compromised immune systems or chronic illnesses.

Workers from non-English speaking backgrounds may need access to translated material. Use available pictorial resources to get the message across.

You need to properly assess the risk of infection for your specific workers and that the measures you take to keep them safe are targeted to their specific circumstances.

Also remind workers that they have a duty to take reasonable care for their own health and safety.

The safety laws provide that workers have a right to cease, or refuse to carry out work, if they have a reasonable concern that carrying out work would expose them to an immediate or imminent risk of COVID-19. That worker must, however, remain available to carry out suitable alternative work, e.g., work from home. Where such work is not available, PCBU’s and employers may exercise their rights to ask workers to take leave or stand down workers where appropriate.

On our website you can access our COVID-19 Critical Information for Employers for each State and Territory together with our infographic factsheets.

Are your workers at home OK?

Most of us are working from home and we all know that presents unique challenges that we have to overcome.

Keeping track of workers’ mental health is one such challenge and it needs to be one of your priorities.

Most people are worried about their children, their jobs, their mortgages and rents, whether they are feeling hot or tired because they’re sick and even just how they are going to fill in today and tomorrow.

Keep talking to your workers. Let them know they are being heard and that they are front of mind.

Talk to them about how work will be conducted differently to reduce infection risk and facilitate flexibility and consider work modifications to help workers manage their workload and family and carer responsibilities.

Give them information about their entitlements that they can access where they are caring for family members or become unwell with COVID-19.

Be open and transparent about how COVID-19 risks may impact upon their working arrangements.

Remind your workers that they are valued and that what happens to them and their families matters to all of us.

Encourage discussions to let workers to share and learn from others.

Make EAP and support services available and let your colleagues know how to access them.

Encourages workers to stay connected through regular communication, e.g., by phone or videoconferencing. Consider practical measures such as daily catch-ups.

Be aware of behaviour and communication changes in workers and recognise signs that may indicate someone is struggling.

Encourage work breaks and physical activity as permitted by law.

There’s lots we can do to help each other, so let’s get out there and do it.

We have prepared an example Checklist for Working at Home which can be adapted to your specific circumstances to makes sure you and your workforce are assessing the risks of working at home.

What happens if a colleague is infected?

There are no specific provisions in the safety legislation that deal with when a PCBU or employer may direct a worker to stay away from their usual place of work.

PCBUs and employers should, however, ensure that a worker confirmed to have COVID-19 does not return to work while they are infectious or as otherwise directed by health authorities.

Make sure that you have consulted with your workers about what you’ll each do if someone at work becomes infected with COVID-19.

This isn’t about workplace politics or IR issues. This is about all of us doing our part to make sure we stay safe.

Prepare and follow your Pandemic Plan

Businesses should also develop a pandemic plan in consultation with workers.  That plan should cover:

  • Prevention and preparedness,
  • Response – initial action,
  • Response – targeted action, and
  • Recovery

Please see our COVID-19 page on our website for further information on pandemic plans.

Please contact us if you have any questions as to how to address COVID-19 risks in your workplace.

John Makris

+61 2 9169 8407
Dominic Fleeton
Special Counsel
+61 3 9958 9619
Michael Stutley
+61 8 6381 7060
Erica Elliott
Special Counsel
+61 2 9169 8404
31 March 2020
Clerks Award variation gives COVID-19 impacted employers additional flexibility
March 31, 2020

On 26 March 2020, an application to vary the Clerks – Private Sector Award 2010 (Clerks Award) was made jointly by the Australian Chamber of Commerce and Industry and the Australian Industry Group (Application).

The Application was supported by the Australian Council of Trade Unions and the Australian Services Union, and heard on an urgent basis and the Full Bench of the Fair Work Commission (Full Bench) issued its decision and determination varying the Clerks Award on 28 March 2020 which may be viewed in full here.

From 28 March 2020, a new Schedule I will be inserted into the Clerks Award. Schedule I will remain operative only until 30 June 2020, but this period can be extended on application to the Fair Work Commission.

What are the variations?

The temporary variations are substantially directed to providing increased flexibility around how work may be performed, and how employees may take or be directed to take annual leave as businesses grapple with the impacts of COVID-19.

These temporary variations are:

  • An employer may direct employees to perform all duties within their skill and competency, regardless of classification.
  • The minimum period of engagement of part-time and casual employees who are working from home with the agreement of their employer may be reduced from 3 hours to 2 hours.
  • The spread of ordinary hours for dayworkers (being employees other than shift workers) working from home has been extended to 6am and 11pm Monday to Friday, while ordinary hours for Saturday will remain as between 7am and 12.30pm Saturday.
  • An employer and its full-time and part-time employees in a workplace or section of a workplace may agree, by ballot with 75% approval by employees, to temporarily reduce the ordinary hours of work for a specified period between 28 March 2020 and 30 June 2020, but must not be reduced to fewer than 75% of the full time ordinary hours for a full time employee, or 75% of the part-time employee’s agreed hours immediately prior to the implementation of reduced hours. The employee’s hourly rate must be maintained but the weekly wage will reduce by the same proportion.
  • An employer cannot unreasonably refuse an employee’s request to engage in reasonable secondary employment, and must consider all reasonable employee requests for training, professional development and/or study leave.
  • Employers and individual employees can agree to take up to twice as much annual leave at a proportionately reduced rate for all or part of any agreed or directed period away from work, including a close-down.
  • An employer may direct employees, subject to considering the employee’s personal circumstances, to take any annual leave that has accrued by giving at least 1 weeks’ notice or any shorter notice period agreed. An employee must not be left with less than 2 weeks accrued annual leave after taking the leave.
  • An employer may, for a period between 28 March 2020 and 30 June 2020 require an employee to take annual leave as part of a close-down, or unpaid leave if the employee has insufficient accrued annual leave for all or part of the close-down, upon at least 1 weeks’ notice or a shorter period that may be agreed.
  • All unpaid leave will count as service for the purposes of relevant award and NES entitlements.

Could other modern awards be varied in a similar manner?

Yes, on 30 March 2020, Restaurant & Catering Industrial, with the consent of the United Workers Union and the Australian Council of Trade Unions made an application to temporarily vary the Restaurant Industry Award 2010 to provide for temporary flexibilities to assist businesses and employees to respond to mandatory closures of sit down restaurant businesses.

This application comes after temporary variations were made to the Hospitality Industry Award 2010 on 24 March 2020.

Given the current extraordinary impacts that the COVID-19 pandemic has had on business, it is likely that further applications with bipartisan support between employer and employee organisations will be favourably received by the Commission.

Katie Sweatman
Special Counsel
+61 3 9958 9605

5 March 2020
Does your Business Have a Pandemic Plan?
March 5, 2020
Six recommendations for employers dealing with the coronavirus outbreak

The coronavirus outbreak is causing alarm and anxiety worldwide. It need not. However, it seems inevitable that your workplace will be affected by the virus at some point, either directly or indirectly.

As the World Health Organisation’s (WHO) Director General remarked on 3 March 2020, “COVID-19 spreads less efficiently than flu, transmission does not appear to be driven by people who are not sick, it causes more severe illness than flu, there are not yet any vaccines or therapeutics, and it can be contained – which is why we must do everything we can to contain it. That’s why WHO recommends a comprehensive approach”.

As an employer, if you have not yet done so, it is time to develop a comprehensive approach to COVID-19 and future epidemics. This requires at the least, a review of your company’s strategy, policies, and procedures regarding the potential impact on your workforce, and an understanding of your obligations if employees are unable to attend the workplace. At the end of this Insight is a quick guide for your reference.

Here, we discuss the duties of employers during public health outbreaks, as well as provide six recommendations for companies and HR managers preparing for the impact of coronavirus.

  1. Understand the risk to your workplace

As with any business continuity risk, the spread of COVID-19 is a pertinent reminder of the importance of understanding how your business might be impacted if a significant number of workers (whether employees or contractors) were unable to attend the workplace.  Does your business have multiple people trained in critical functions to ensure continuity?  Do you have a contingency plan if a large number of employees in a particular part of the business were unable to attend work?

With that said, be alert, not alarmed.  Monitor the Department of Health website for up to date information about travel restrictions and situations in which isolation is recommended.  There is no need for broad isolation of workers who do not fall within the risk categories identified by the WHO and Department of Health.

  1. Work from home

Depending on your location and the spread of COVID-19, your business may need to ask employees to work from home, or your employees may ask to work from home.  Before this strategy is actioned, you should assess whether employees are set up effectively to work from home.

Whether this is requesting all employees apply ahead of time to work from home, allowing meetings to be held via videoconferencing or increasing employees’ flexibility for remote work, reducing face-to-face contact is an excellent measure to mitigate the impact of COVID-19.  With this however, comes a raft of practical implications to consider.

It may be for instance that at present only some staff have the technological capacity to work remotely.  Considering what is needed to expand this capacity will involve consideration of available technology, cost factors and work, health and safety implications.  How will the business manage the increase in demand to ensure workers’ home environments are adequate and safe?  What directions or policies need to be implemented in addition to any existing processes to facilitate a larger portion of your workforce working remotely?

  1. Clean clean clean!

The routine cleaning of the workplace should be increased where needed.  It is recommended that all frequently touched surfaces such as workstations, desks and doorknobs be routinely and thoroughly cleaned. Have a discussion with your Company’s cleaning contractors to ensure they are following recommended Department of Health protocols.

As COVID-19 is spread most readily from coughing or sneezing, increased cleaning of common areas may decrease the possibility of infection.  Similarly, workers should be educated and reminded of the need for them to maintain strict hygiene standards.

  1. Formalise your processes

It is now time to formalise your processes for requiring employees to remain off work if they have been affected by the virus or have travelled to virus affected areas.  This formalisation should include requirements for employees to advise if they have travelled to affected areas or if they have been in contact with a person diagnosed with COVID-19.

Full time and part time employees who are required to be quarantined would likely be entitled to access any accrued paid personal or sick leave.  Once this entitlement is exhausted, then they may be able to access other forms of paid leave or unpaid leave.

Where an employee requests to stay off work, they will need to make a request to work from home or take some form of paid or unpaid leave.  These requests should be subject to your normal leave application processes. It may be necessary to clarify the company’s policy in instances where the company directs staff to not attend work.  The capacity to stand employees down without pay under the Fair Work Act and under enterprise agreements will only arise where there is an absence of useful work for employees to perform, and not where an employee is not ready, willing or able to attend to work because of COVID-19.

In activating relevant procedures, care should be taken to ensure that workplace leaders responses to employees affected, or potentially affected, by COVID-19 do not contravene anti-discrimination legislation.

  1. Monitor travel requirements

It is strongly recommended the companies limit employee business travel to areas where COVID-19 is present.  Not only will this protect your employees’ safety, but it will also prevent loss of productivity due to quarantine or employee exclusion from the workplace after travel.

  1. Train your supervisors

Lastly, we recommend your business consider training supervisors on the implications of COVID-19 and providing them with ongoing information updates as appropriate to ensure consistency of messaging, and avoidance of unnecessary panic.  In particular, workplace leaders should have access to information on infection control and other measures that may or may not be being taken by the company, and should know who to contact within the company to report exposure to the virus.

Your employees may be concerned about COVID-19 and its impact on their health and the health of the business.  This could have varying impacts on mental health and wellbeing.  One of the best strategies for mitigating against these potential impacts is to ensure that employees are well informed about the potential impact of COVID-19 upon them, and are taking appropriate and proportionate steps to protect themselves from risk of infection.

Businesses need to be as best prepared as they can be in the face of COVID-19, and these 6 recommendations are only the starting point.

Should this article have raised any concerns for you, we invite you to contact Kingston Reid for further advice.


Christa Lenard
+61 2 9169 8404

George Stent

2 March 2020
The Trials of Probationary Periods
March 2, 2020

There’s a week to go on a probationary period and concerns get raised for the first time that someone might not be right for the role…. Sound familiar? The NSW Industrial Relations Commission (IRC) has sounded a warning for the NSW public sector to assess the conduct and performance of new employees during the probationary period, and ensure they confirm the appointment of those employees, or dismiss them, prior to the probationary period ending.

What happened?

The practical implementation of probationary periods has to be considered by NSW public service employers in the wake of the IRC decision in Wilson v Industrial Relations Secretary (Wilson). The key takeaway from Wilson is that public service employers concerned about the conduct or performance of a probationary employee must either act to dismiss before the probationary period ends, or extend the period. What happens if neither of these occur? Well, the IRC says that it will be assumed the employee has successfully completed the probationary period. Of course, this means that the employee could then pursue claims such as unfair dismissals and disciplinary appeals if they are dismissed or disciplined at some later date.

The facts

Mr Brock Wilson brought a disciplinary appeal in the IRC against a decision by a NSW public sector employer to terminate his employment.

The IRC was asked to consider whether it had jurisdiction to determine the appeal because, although Mr Wilson had served his six-month probationary period, his employment had not been confirmed under rule 5 of the GSE Rules. The employer argued that, without express confirmation of Mr Wilson’s employment, he remained on probation and was unable to bring a disciplinary appeal to challenge the termination of his employment.

Mr Wilson argued that, at the end of his six-month probationary period, his employment was not terminated, and the probationary period wasn’t extended either, so it should be inferred or assumed that he had completed his probation and his employment was confirmed under the GSE Rules. In other words, the fact he remained employed and continued to be paid meant it was fair to assume he had completed his probation.

The Decision

The IRC looked back at the history of the law relating to probationary periods for NSW public servants, going as far back as 1895. A key observation of the IRC was a change in the wording of the probation provisions in the GSE Rules compared with the PSEM Act. Under the PSEM Act, employment could be confirmed “after” the period of probation expired. Now, the GSE Rules state that the decision must be made “at the end of” the probationary period.

The IRC did not accept that probationary periods could be automatically extended indefinitely until the employer actively ‘confirmed’ the employment. Extending a probationary period requires employers to take a positive step, including notifying the employee of the extension. No such steps were taken in this case.

As Mr Wilson’s employment was not terminated, and the probationary period was not extended at the end of six months, the IRC said that it must be inferred that he had satisfied the requirements of the position, and that his employment had been confirmed. The consequence was that the IRC could then hear his disciplinary appeal.

What do we learn from this?

While this may seem like a niche point, it is something that comes up time and time again, as administrative processes for dealing with impending end dates of probationary periods fail, or are delayed until after it is too late.

In case there was any doubt, Wilson confirms that NSW public sector employers cannot continue to rely on the historical approach of employees just remaining on probation indefinitely until the employer ‘confirms’ or ‘annuls’ their employment, even if that doesn’t happen until long after the probationary period should have ended.

The GSE Rules now provide that the employer may, at any time during or “at the end of” the probationary period, confirm or terminate the employment. Unless the probation period is clearly extended before it ends, and the employee is told that it’s being extended, then when the period ends, that’s it. Probation completed. No second chances.

So how is this addressed from a practical perspective? All employers should diarise key dates during employees’ probationary periods to allow time for conduct and performance to be assessed. For NSW public sector employers, there also needs to be enough time factored in for the relevant decision-maker to decide whether to extend the probationary period, terminate the employee or confirm employment, and communicate those decisions to the employee, well before the probationary period expires. This requires systems and education for those responsible for managing new employees.

The specialist agencies in the government sector are not immune from this decision. The same wording that is used in rule 5 of the GSE Rules is found in the equivalent provisions that deal with probationary periods for:

  • NSW Health Service senior executives;
  • Administrative employees of the NSW Police Force (both executives and non-executives); and
  • Transport Service senior executives.

However, differently worded provisions are used for people employed in the Teaching Service, police officers appointed to the NSW Police Force, and some members of the Transport Service. Accordingly, the decision in Wilson may not apply to them.

The lesson here is relevant for all employers in all industries. The six month ‘qualifying period’ for unfair dismissal claims, which usually corresponds with a probationary period, cannot be extended just because an employee’s performance is still under review. The same systems and education for persons managing new employees should be implemented.

Martin Watts
+61 2 9169 8408

Kathleen Weston
+61 2 9169 8415

11 February 2020
Looking Ahead – 2020 Insight
February 11, 2020

By Christa Lenard, partner, Les Maroun, associate & Natasha Elster, paralegal

The New Year is behind us and business is back in full swing. Our difficult and heart wrenching summer saw many businesses and employees impacted and with new threats to the economy and restrictions on travel, it’s hard not to feel burdened by the state of play.

The employment space, like many others in business, comes wrapped in layers of red tape. Right now, compliance is the key word. Whether it be a supermarket giant (and the law firm advising it) or the family business which has through its success outgrown its systems in place to manage compliance, the issue of wage compliance is front and centre.

Sitting in the small claims division of the Federal Circuit Court in Victoria last week, Judge McNab observed that Australia has the most complex industrial system in the world, with Modern Awards being over complicated and frightfully hard to navigate. The Judge’s musings are consistent with what we have long known.

So as we hit the ground running in 2020, the year ahead promises to be another big year of significant decisions and new legislation – more red tape you may say? Most certainly. But with the right lens, Human Resource practitioners should be sharply focused on ensuring the left hand is talking to the right hand and that you keep up to speed with developments in this space.

Let’s take a brief look at what lies ahead.

Wage theft

Following significant media attention and mounting public frustration of the underpayment of employees in Australia, particularly by high-profile employers, the Commonwealth Government has revealed it is working on legislation to criminalise wage theft. In consultation on the issue, the Government last year sought submissions on possible reforms such as introducing maximum 10-year jail terms or $25m fines for wage theft offences.

Moreover, on 13 November 2019, the Senate referred an inquiry into the “unlawful underpayment of employees’ remuneration”. The inquiry’s terms of reference include reasons for wage theft, the costs of such theft to the economy and effective recovery and deterrence mechanisms. The Committee is accepting submissions until 14 February 2020 and is required to provide its report by 25 June 2020.

Focus point: be proactive and audit rostering and payroll practices against enterprise agreement or Award requirements. Be sure to do this under privilege!

Annualised salaries

From 1 March 2020, new model clauses on annualised salaries will commence operation in 22 modern awards. The new clauses impose greater obligations on employers who rely on award-based annualised salaries to satisfy award entitlements, including record-keeping, auditing and employee consent. More information, including steps you should take now to ensure you are compliant, can be found in our article on the topic.

Blink and you’ll miss it: If you haven’t already, seek advice before 1 March about the impact of the annualised salary clauses as they affect your business.    

Personal leave

This year, the High Court is expected to hear appeals filed against the decision in Mondelez v AMWU, which concerned employees’ entitlement to 10 days’ paid personal leave under the Fair Work Act.

In that decision, the Full Federal Court found that all employees (except casuals), regardless of their weekly hours of work, are entitled to the 10 days per year, with a “day” being the portion of a calendar day that would be allotted to working. This finding is contrary to the understanding that had been adopted by most employers, who considered a “day” to be an employee’s ordinary weekly hours divided by a notional working week of 5 days. To demonstrate the disparity in views:

  • the decision (which is currently law unless overturned by the High Court) in effect provides that an employee who works 12-hour days (whether once, twice or three times a week) is entitled to 10 lots of 12 hours of personal leave per year (in effect 120 hours)
  • under the commonly adopted approach prior to the decision, an employee who works 3 x 12-hour days per week is entitled to 10 lots of 7.2 hours of personal leave per year (in effect 72 hours), whereas an employee who works 2 x 12-hour days per week is entitled to 10 lots of 4.8 hours of personal leave per year (in effect 48 hours).

Mondelez and the Federal Minister for Jobs & Industrial Relations (who intervened in the Federal Court proceedings), have both appealed against the decision to the High Court. Their final written submissions are due by 20 March 2020 before the matter goes to hearing.

Our insight: At the moment, many employers are in strict non-compliance with personal leave requirements, particularly in respect of part-timers who have historically accrued personal leave on a pro-rata basis. The High Court decision will provide employers with the certainty needed on this issue. Watch this space as we think there is further change on the horizon.      

Religious discrimination

After releasing two drafts last year which generated heated public debate, the Commonwealth Government is expected to introduce its Religious Discrimination Bill 2019 to Parliament this year. As currently drafted, the Bill seeks to:

  • prohibit discrimination on the grounds of religious belief or activity in certain areas of public life, including work, education, goods and services, accommodation and sport
  • protect statements of religious belief from the operation of other anti-discrimination laws (subject to statements being made in good faith and other caveats)
  • prohibit large businesses from imposing conditions of dress standards, appearance and behaviour that restrict employees’ religious expression in their private capacity (unless the conditions are necessary for avoiding unjustifiable financial hardship), and
  • allow health practitioners to conscientiously object to providing health services on the basis of their faith (provided the objection is to a treatment and not a person).

The Bill also contains certain exemptions for religious entities, including schools, charities, hospitals, aged care facilities, accommodation providers, camps and conference centres.

Ripe for revision: The Government period for accepting submissions on the Bill’s current draft closed on 31 January 2020. More than 6000 submissions were received. At the time of publication, these submissions had not been made publicly available. There will be more changes on the way, so stay tuned.

Modern slavery

Last year saw the commencement of the Commonwealth’s Modern Slavery Act 2018, requiring entities with an annual revenue of over $100m to annually report on actions taken to assess and address modern slavery risks in their operations and supply chains. Reporting entities with a July to June financial year will need to provide their first reports – known as ‘modern slavery statements’ – by December 2020. The Government will then make the statements publicly available through an online central register.

NSW’s Modern Slavery Act 2018, which similarly requires entities to report on modern slavery risks, is still not in force despite being passed in June 2018 to become the first modern slavery legislation in Australia. The NSW Act goes further than the Commonwealth’s with a lower reporting threshold of $50m and penalties of up to $1.1m for non-compliance. However, defects in the Act have led to its indefinite deferral by Parliament and referral to the Standing Committee on Social Issues for inquiry. The Committee’s recommendations are due on 14 February 2020.

2020 Vision: Have you determined whether the new modern slavery laws apply to your workplace? If so, have you started assessing your supply chains and operations for any modern slavery risks for the first reporting period?

Industrial manslaughter

New industrial manslaughter laws are expected to commence in Victoria and the NT later this year after being passed in November 2019.

These jurisdictions will be joining the ACT and Queensland who have had industrial manslaughter laws in place since 2004 and 2017 respectively.

Although not yet law, the WA Government has introduced industrial manslaughter offences in its Work Health and Safety Bill 2019, which was tabled last year and also seeks to bring WA’s work health and safety laws in line with the national harmonised model legislation.

If passed into law, this would leave the Commonwealth, NSW, SA and Tasmania as the only jurisdictions without industrial manslaughter laws. Although NSW does not intend to introduce such laws, it has introduced amending legislation to clarify that the death of a person at work can, in circumstances, constitute manslaughter under the NSW Crimes Act 1900.

Look and learn: Your WHS practices are critical to reducing risk.  

Labour hire licensing

To address the exploitation of workers in the labour hire industry, more jurisdictions are expected to introduce licensing schemes to prohibit labour hire providers from operating without a licence that imposes ongoing operating and reporting conditions.

With Victoria, Queensland and SA already having schemes in place, the Commonwealth, the ACT and WA have proposed introducing schemes of their own. The Commonwealth’s proposed registration scheme is expected to focus on four high-risk industries: horticulture, meat processing, cleaning and security. The ACT and WA are yet to provide details on their respective proposals. SA has also introduced amending legislation to narrow the scope of it scheme to identified high-risk industries.

NSW, Tasmania and the NT have not announced any plans to introduce such schemes.

What needs doing?

Employers should be thinking about whether any of these developments will affect their workplace and what needs to be done before any new laws come into effect.

Follow us to receive updates on each of these topics and many others throughout the year as more developments unfold.

Christa Lenard
+61 2 9169 8404

Les Maroun
+61 2 9169 8414