The COVID-19 situation is developing so quickly across the world and here in Australia that we are all scrambling to keep up. I am seeing some consistencies in the issues clients are raising, hopefully you will find this information useful.
Leave & Working from Home
WHY ARE BUSINESSES ASKING EMPLOYEES TO WORK FROM HOME?
Employers, and employees, have an obligation to ensure a safe workplace. Since COVID-19 has been declared a pandemic it is probable that workplaces will be impacted by the virus.
A pandemic is declared when a new disease for which people do not have immunity spreads around the world beyond expectations.
If an employer fails to take reasonable steps to protect its workers from contracting COVID-19, they are likely to be in breach of health and safety obligations.
Further to this legal obligation, there is arguably a moral obligation to ensure the health and safety of the greater population. Many employers have requested employees to work from home to slow the spread of the virus by reducing person-to-person interactions.
CAN I FORCE MY EMPLOYEES TO WORK FROM HOME?
In order to ensure a safe workplace you may identify that some or all employees should work from home.
I anticipate that most employees will be happy to work from home.
But what about employees that do not want to work from home? Firstly, there may be specific reasons. Their home may not be a safe place for them, or they may be worried about their ability to focus on work. Have a conversation with them and see if you can arrive at an acceptable alternative solution. For example, if most other people are working from home, could they work from the workplace?
An employer’s right to insist that an employee works from home will depend on the terms of the employment agreement.
Good employment agreements tend to have a “mobility clause” so called because it allows the employer to require the employee to work from various locations.
In addition, as employees also have an obligation to maintain a safe workplace, creating or adopting a workplace policy that requires employees suffering serious viral infection (or who have been exposed to a serious virus), will clearly set out their obligation to work from home in such circumstances.
CAN I FORCE MY EMPLOYEES TO TAKE ANNUAL LEAVE?
Many modern awards and enterprise bargaining agreements have shutdown provisions which are unlikely to be applicable in the current circumstances.
If an employment agreement, modern award or enterprise bargaining agreement does not provide for a shutdown to occur within the current circumstances, generally speaking, employers will not be able to force their permanent employees to take leave. Instead they will be considered to be standing the employee down.
In general, if an employer stands down an employee, and that employee is ready, willing and able to work, the employer will be required to pay them.
I suggest that an employer negotiate with an employee for the employee to take annual leave that has accrued.
WHAT ABOUT CASUAL EMPLOYEES?
The nature of casual employment is such that there is no ongoing expectations of work. Therefore, an employee can decide not to offer shifts to casual employees.
Before making such a decision, consider whether your casual employees are true casual employees or whether their patterns of work have created an expectation of ongoing work. If that is the case then some or all may be considered permanent employees and will be entitled to payment as if they are permanent employees being stood down.
WHAT IS A FORCE MAJEURE?
Many contracts under which there is a supply of goods contain a “force majeure” clause. If a party is not able to comply with its obligations because any of the events listed in the force majeure clause. There are various ways these clauses can be written and, therefore each clause will operate differently.
You need to read your clause and understand whether or not it applies.
Do not assume the other party understands the force majeure clause, many businesses will attempt to rely on it (ie they will “give it a burl”) even though the coronavirus does not fall within the listed events.
Of the essence
What happens if time is “of the essence” and I am late with a delivery?
Unfortunately, when time is of the essence in a contract, then failure to deliver on time gives the other party the right to terminate the contract and sue for damages.
Unless there is a force majeure clause applicable, your failure to deliver on time will give the other party the right to terminate the contract and sue you for damages. [This is why I ALWAYS remove clauses stating time is of the essence].
As always, the above information isn’t legal advice. Please get in touch if you’d like legal advice on your particular situation.
This article was first published on the Twine Business and Law website. For more information from Twine Business and Law and the services they provide, please visit their website at https://www.twinebl.com
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This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to a practising lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Legally Yours Pty Ltd accepts or assumes responsibility, or has any liability, to any person in respect of this article.