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SA 6 Day lockdown

FAQ: SA COVID-19 lockdown -Employer rights and obligations

As most of you would be aware by now, the South Australian State Government has announced a 6-day statewide lockdown with a specific list of essential services that may remain open.

To help you navigate your workforce through this period, we’ve prepared the below frequently asked questions our employer clients are asking us. As the COVID-19 and employment landscape continues to evolve, we may update the below information.

Is our business an essential service?

The State Government’s Emergency Management (Stay at Home) (COVID-19) Direction 2020 has a list of essential workers that may continue to attend work for the 6-day statewide lockdown. Unless your business or workers fall within the list below you will be required to shut down for the period.

The following have been defined as essential workers:

essential worker means a person who performs work that is essential for the continued operation of any of the following:

     (a)     a supermarket, butcher, fruit and vegetable store or fishmonger (but not an indoor or outdoor market);

    (b)    premises commonly known as a bottle shop;

     (c)     a financial institution;

    (d)    a post office;

     (e)     a pharmacy;

     (f)     a hardware store;

    (g)    a petrol station;

    (h)    a distribution centre;

     (i)     a pet store or veterinary clinic;

     (j)     the following emergency services:

     (i)     fire fighting services;

    (ii)    paramedical services;

    (iii)    ambulance services;

    (iv)    medical retrieval services (including Royal Flying Doctor Services);

    (v)    police services;

    (vi)    State Emergency Services;

   (vii)   military and defence services deployed for activities in South Australia;

    (k)    essential infrastructure and essential services (within the meaning of the Essential Services Act 1981);

     (l)     vehicle repair and mechanical services;

    (m)    roadside assistance services;

    (n)    National Heavy Vehicle Regulator compliance activities;

    (o)    government or local government services (whether provided by government, local government or outsourced) determined to be essential by the relevant Chief Executive;

    (p)    consular and diplomatic services;

    (q)    Australian Border Force and Commonwealth law enforcement and intelligence agency services;

     (r)     journalist and media services;

     (s)     a factory or facility that is not able to be shut down without causing damage or loss to plant and equipment, but only those operations that are necessary in order to prevent that damage or loss;

     (t)     organisations that provide urgent services necessary for the health and safety of any person, animal or premises;

Examples—

The performance of emergency plumbing services.

Centrelink services. Food banks.

    (u)    public transport, including taxis and other public passenger services;

    (v)    air transport (including the operation of airports);

    (w)    freight services (including postal and courier services);

    (x)    essential health services, but only if those services are provided in accordance with Part 3;

    (y)    a blood bank (including blood collection and delivery);

     (z)     care services for people with particular needs because of homelessness, age, infirmity, disability, illness or a chronic health condition (in accordance with the Emergency Management (Residential Aged Care Facilities No 13) (COVID-19) Direction 2020 (if applicable), or a direction that substitutes for that direction);

    (za)    childcare, early childhood education and primary and secondary schooling services, but only if those services are provided in accordance with Part 3;

    (zb)    hotel or motel accommodation;

    (zc)    truckstops and roadhouses, including the provision of food for seated consumption at, or take away from, a truckstop or roadhouse by a truck driver;

    (zd)    production and distribution of—

     (i)     food and groceries for sale by a supermarket, butcher, fruit and vegetable store or fishmonger (but not an indoor or outdoor market), other than production at a red meat abattoir; or

    (ii)    liquor for sale at premises commonly known as a bottle shop; or

    (iii)    medical and pharmaceutical products;

    (ze)    primary industries only to the extent necessary to ensure adequate supply of food to, and care of, crops and animals;

Do I have to allow my employees to work from home?

In the first instance, we recommend where an employee can reasonably work from home, employer should allow for a working from home arrangement.

Can I get the employee to take paid leave during the lockdown?

Annual leave can be taken by agreement between an employer and employee. An employee must not be coerced into the taking of annual leave.

There is no general right for an employer to direct employees to take some leave, except in a few limited circumstances which are provided for in the relevant modern award, enterprise agreement, or employment contract.

You cannot direct employees to take annual leave, even if you cannot usefully deploy them to work.

My employee has asked for annual leave – can I refuse?

Under the Fair Work Act, an employer must not unreasonably refuse a request for annual leave.

However, there may be limited circumstances arising from the lockdown or COVID-19 that may be reasonable for an employer to refuse annual leave request (e.g. cash flow reasons).

Do I have to pay employees if they can’t work because of the lockdown?

Before you make a decision to stop paying your employees because of the lockdown, we strongly recommend you consider the following options first:

  • The employee can reasonably continue to work from home; or
  • The employee has accrued paid leave entitlements such as annual leave or long service leave and has made a request for leave; or
  • Can the employee continue work with a change to duties, hours or work or rosters (by agreement); or
  • Your business is currently receiving Job Keeper payments for the employee, or your are a Job Keeper legacy business (you may be able to issue a Job Keeper direction – to work reduced hours/days).

If none of the above can be applied and your business is unable to continue paying your employees, the employees may be stood down without pay under section 524 of the Fair Work Act. This provision only entitles businesses to stand down employees without pay if they cannot usefully be employed because of a stoppage of work for any cause for which employers cannot reasonably be held responsible.

In the current situation (6-day statewide lockdown), because the State Government has required a stoppage of work (excluding essential workers), you may stand down employees. We strongly recommend you seek advice before doing so.

Please note that you cannot stand down employees without pay due to a downturn in work/reduction in business. You may need to consider redundancies is such circumstances.

Where employees have been stood down, you may wish to direct your employees to Service SA to see if they are entitled to any State or Federal Government payments (i.e Job Seeker).

Where can I get more public information on the SA lockdown?

You can visit the https://www.covid-19.sa.gov.au/response


How we can help:
 
If you are unsure on how to implement a stand down provision, or for guidance on any other workplace issue and you are a Workplace Partners subscriber, contact our Employer Advise Line on 1300 116 400 for further assistance and advice.

If you’re not a Workplace Partners subscriber and need urgent advice please email [email protected]. We recognise that South Australian businesses and employers need support during this period and we can assist you in understanding your employer workplace rights and obligations.

The information contained within this article is not legal advice and is for general advice only, to obtain specific advice for your business contact us on 1300 116 400 or email [email protected], this advisory service is available to all subscribers at no additional cost.

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