As COVID-19 restrictions are lifted – what now – and how to get reluctant employees back to work?
With more than 1 million employees out of work and about 3.5 million workers supported by JobKeeper payments, most states and the federal government are commencing to lift COVID-19 restrictions. Whilst there is now a push to get employees to come back to work, there are cases of real, practical difficulties emerging because some employees receiving the JobKeeper payments have no incentive to actually return to work.
One of the issues is the understandable reluctance by some employees to come back to work out of anxiety for their own health or because of a fear for their vulnerable relatives they live with or care for. This may be legitimate for some employees, but for others it is just an excuse not to work additional hours if the employee is part time, not to work up to contracted hours for a full-time employee, or to get casuals to work their usual hours.
ER Strategies is hearing stories from our clients that are becoming frustrated by some employees wanting to stay at home and just get paid their JobKeeper payments.
The flip side of this story are employees that are not entitled to JobKeeper payments wanting or needing to come back to work, but equally feeling anxious about potentially becoming infected by COVID-19.
How do we get employees back to the workplace?
For employers, the message we are hearing is that they want to open again or continue operating where it is now legal to do so because, financially, they need to open, or otherwise they may be forced to close their businesses down permanently.
However, many employers also want to rely on JobKeeper-eligible employees to come and work at least up to the level equivalent to the $1500 per fortnight payment. For employers, this may be all the useful work that is available because there is very limited revenue under the depressed trading conditions their business may be facing.
What are the options for employers?
Where employees are refusing to return to work in accordance with their employer’s requirements, these are some of the options that may be taken, depending on the circumstances.
JobKeeper eligible employers and employees
Employers have the right to issue ‘enabling directions’ in writing, requiring employees to come to work for reduced hours of work and days of the week, regardless of their contract of employment or award or agreement limitations. Click here for further information.
Most employers have not had to issue such formal directions, with employees agreeing to work less hours or days, or indeed the employees themselves only working their rostered hours and no more.
There are strict requirements employers must follow to make use of such directions, and may include the need to issue new directions to increase hours of work as well.
However, in relation to casual employees, some are now saying: “You only rostered me to 5pm, so that is all I am working.” This may well be because they are getting the same JobKeeper payments regardless of the hours they are working.
Employers and employees not covered by the JobKeeper laws
In this situation, the normal contracts of employment and award entitlements continue to apply.
Many employers have stood down employees and will now want to alter the stand down arrangements and require employees to come back to work. Other employers would have agreed changes to hours of work or required changes using Fair Work Commission COVID-19 award flexibilities and will now want to change the arrangements.
Employees refusing to work contracted hours of work, may be repudiating their contract of employment and it may therefore be possible to terminate the employee. It may be a bit more difficult technically in the case where a casual doesn’t have regular hours.
Termination of employment must be carefully done and following procedural fairness. This should be seen as the ultimate step, when all else has failed.
Clients should contact ER Strategies to develop an appropriate strategy before acting and to minimise their risks.
Health, safety and other employee concerns
Employers will need to consider individual employee health and safety, as well as other areas of employee concern, such as childcare and home-schooling arrangements. ER Strategies proposes that as a part of any consultation process regarding returning to work, the following should be considered:
1. Employees that have legitimate concerns based on their health or the health of people they live with or care for, should be offered the opportunity to raise those issues and the employer should consider their concerns, to avoid discrimination or other related actions.
2. Where concerns are raised, and the employer doubts the validity of the concerns, the employer may request medical evidence to support the employee’s position.
3. Employees may raise childcare and home schooling as an issue restricting their ability to come back to work. This is a real concern that can be legitimate, but hopefully this has now reduced as an issue because most schools are now open.
However, it may emerge again if detection of COVID-19 infections close schools or there is a second wave of infections, as is currently the case in Victoria.
Getting Our Help
ER Strategies can assist clients to review their situation and develop specific strategies on an individual client basis. Call us on 1300 55 66 37 for our help.
Non-clients can call us, or contact us, to discuss how we can best help your business as we move through these unprecedented times.