By Optometry Australia
Employers and employees are facing unprecedented challenges responding to COVID-19 and its broader implications with the landscape changing at a rapid rate.
The information below is relevant to employees and employers to assist you in understanding your rights and obligations within this crisis situation.
We also provide advice below on early access to your superannuation and the Government’s one-off Crisis Payment which are available to individuals.
These are truly difficult times for everyone and it is important that we all take extra effort to be considerate and empathetic to their concerns and anxieties.
We also wish to highlight that we are collaborating with RANZCO and other stakeholders to help ensure patients can continue to access emergency and time-sensitive eye care now, and over the months ahead, and will share regular updates. One element of this will be offering tele-optometry services and increasingly supporting patients to access tele-ophthalmology services. Next week we will be releasing resources to help support you to prepare to offer more telehealth services next week, and encourage you to attend our short webcast on telehealth at 2pm AEDT next Thursday 2 April.
NAVIGATING THROUGH COVID-19 – EMPLOYER AND EMPLOYEE OPTIONS
We encourage employees and employers to be empathetic to each other and to work together to find appropriate solutions such as taking different forms of leave, working from home, reducing business hours, or taking extra precautions in the workplace. We recognise that none of these conversations will be easy, nor will all options suit your situation or be available to you, but they may assist in protecting jobs and business continuity.
The Fair Work Act 2009 (Cth) includes provisions which enable employers to stand down employees without pay in limited circumstances. Some awards, enterprise agreements and contracts may have different or additional stand down provisions. Most relevantly, an employee may be stood down without pay where they cannot be usefully employed during a period of any stoppage of work for which the employer can’t reasonably be held responsible. Common scenarios are severe weather events or natural disasters. However, if a business is required to temporarily close due to COVID-19 (i.e. directed by the Government to close), the employer may be able to rely on these stand-down provisions.
If the limited circumstances do not apply and the employer stands down its employees (e.g. voluntarily and temporarily closes their business or there is a downturn in work), they may be required to continue to pay their permanent employees (not casuals). In light of this, employers should first consider other alternatives including leave entitlements and working from home arrangements where possible.
Included below are options of which employer and employee optometrists need to be aware.
Important: Whilst businesses are operating in extenuating circumstances, when implementing any of the options below, the Fair Work Act 2009 (Cth) continues to apply and underpins an employee’s employment rights, in particular:
Any reduction in wages must not result in the employee being paid less than the award minimum for their level, or the minimum wage for award free employees, and businesses cannot engage in discriminatory action when standing down employees or terminating their employment due to redundancy.
OPTION 1 – Dismissing casual employees
A business with immediate closure imminent, or severe reduction in turnover, is advised to cease employment of casual employees in the first instance.
It is preferable to advise employees in person and confirm in writing with a letter of termination.
You are entitled to receive income support as per the example below. Payments will flow through from 27 April. If you already have a Centrelink Reference Number (CRN), you can log in via MyGov to commence your application. Payments will be backdated to your date of application.
If you’re still working but there’s a reduction in your hours, Centrelink via MyGov will need a simple letter from your employer confirming this.
Leonie is in her mid-30s, with two dependent children aged 10 and 12. The economic downturn due to coronavirus has caused the practice where she works to close for a three-month period and Leonie’s hours have been reduced to zero.
Leonie will be eligible to apply for JobSeeker Payment and the coronavirus supplement under the new streamlined process. She can apply online and make a declaration about her identity, residency status, income and that she has had her hours reduced to zero as a result of the economic downturn due to coronavirus. Leonie will be deemed eligible for the Jobseeker Payment and will receive $1,171.50 per fortnight, comprising:
- JobSeeker Payment single, with dependent child rate of $612.00 per fortnight; plus
- Energy Supplement of $9.50 per fortnight; plus
- Coronavirus supplement of $550 per fortnight.
She will also receive Family Tax Benefit Part A and Part B of $483 a fortnight.
OPTION 2 – Directing permanent employees to take any accrued paid leave entitlements (annual and/or long service)
The rules about when, and if, an employer can direct an employee to take annual leave are set out in modern awards and the National Employment Standards.
As these circumstances are exceptional, it is likely that employees will consider the direction to be reasonable and will comply. All directions to take leave should be in writing.
Before applying to Centrelink employees will need to declare that they are not accessing employer entitlements (such as annual leave and/or sick leave) or Income Protection Insurance, at the same time as receiving Jobseeker Payment and Youth Allowance Jobseeker under these arrangements. You will need to wait until entitlements have been exhausted.
OPTION 3 – Reducing the working hours and wages of employees
This option can only be implemented with the agreement of your affected employees.
Consultation with all employees – preferably in a team meeting, or via an email – will be necessary before proceeding with this option. Employees’ agreement to these changes should be captured in writing.
You are now entitled to receive income support the same as Option 1 above and you may receive benefits similar to either of Examples 1 above or Example 2 below. This will be assessed based on the number of hours you are now working and may be reduced from the full amount in the examples shown.
Chris is a successful sole trader locum who has been able to build up a reasonable amount of assets during his career to a level that would ordinarily make him ineligible for an income support payment. The economic downturn due to coronavirus however, has adversely affected the hours offered to Chris and his income has been reduced to zero. Under these new circumstances, he will be eligible to apply for the new JobSeeker payment and the coronavirus supplement and he will not have his assets included as part of the eligibility assessment for the payment.
Chris will also not be required to serve a Liquid Asset test Waiting Period as that has been waived for the interim. Chris is deemed eligible for the Jobseeker payment and, as he is married, will receive:
- JobSeeker Payment partnered rate of $510.80 per fortnight; plus
- Energy Supplement of $7.90 per fortnight; plus
- Coronavirus supplement of $550 per fortnight.
This brings Chris’ total fortnightly income support payment to $1,068.70.
OPTION 4 – Standing employees down without pay
If employers do not achieve the required cost savings by letting casuals go and directing employees to use their paid leave entitlements, and where employees do not accept a reduction in hours and wages, employers can stand down their employees without pay. This is possible under the Fair Work Act 2009 (Cth) when the employee cannot be usefully employed because of a stoppage of work for which the employer cannot be reasonably held responsible.
Employees should be notified in writing.
You are entitled to receive income support as per example number 1 or 2 listed above. Payments will flow through from 27 April. If you already have a Centrelink Reference Number (CRN), you can log in via MyGov to commence your application. Payments will be backdated to your date of application.
If you’re still working but there’s a reduction in your hours, Centrelink via MyGov will need a short letter from your employer confirming this.
Remember that employees will not be permitted, and will need to declare that they are not, accessing employer entitlements (such as annual leave and/or sick leave) or Income Protection Insurance, at the same time as receiving Jobseeker Payment and Youth Allowance Jobseeker under these arrangements.
OPTION 5 – Making positions redundant
As an employer, if your situation determines that, in the foreseeable future, one or more staff positions are not viable, then these position/s can be made redundant.
If possible, affected employees should be notified in a face-to-face meeting and a letter given to them during, or immediately, after the meeting. A Termination by Redundancy letter should be used in the case of redundancy.
Employees are entitled to notice in accordance with the National Employment Standards and they are entitled to redundancy if the business employs 15 or more people, in accordance with the NES and/or applicable Award.
As an employee you will be entitled to receive income support as per Example 1 or 2 above. Payments will flow through from 27 April. If you already have a Centrelink Reference Number (CRN), you can log in via MyGov to commence your application. The date of application is deemed to be when your payments will commence.
If your business goes into liquidation or becomes bankrupt, employees can apply to the Government for certain unpaid entitlements through the Fair Entitlements Guarantee (FEG).
The Government is allowing you to access your superannuation early if you are experiencing financial stress as a result of COVID-19. You may be able to withdraw up to $10,000 of your superannuation in FY2019-20 and a further $10,000 in FY2020-21. You are unable to apply directly through your superfund and must apply directly to the ATO via the myGov website with early access available from mid-April this year. If your application is successful, early access payments are tax free and these payments will not affect Centrelink or Veterans’ Affairs payments.
If you cannot work due to home isolation as a result of COVID-19 and have no leave entitlements you may get a Crisis Payment. Likewise, you may be eligible for a Crisis Payment if you are in severe financial hardship and receive an income support payment like JobSeeker Payment or Youth Allowance for job seekers.
Crisis Payment is a one-off payment equal to a week’s pay of your existing income support payment rate. Apply online for this payment.
FOR MORE INFORMATION
Employers should contact Optometry Australia Member Assist (part of Industry Legal Group) for advice on your rights and obligations prior to any full or partial workforce stand downs. Email: email@example.com or call 1300 101 391. This is a complimentary and confidential service to members. This service is also available to employees and we encourage you to make contact to discuss your individual rights and obligations.
To access the Australian Government’s Economic Response to the Coronavirus visit www.treasury.gov.au/coronavirus. Businesses can visit www.business.gov.au to find out more about how the Economic Response complements the range of support available to small and medium businesses.
Businesses can also continue to telephone Optometry Finance Australia on 1300 678 346 for further advice.
And remember that these are truly difficult times for everyone and it is important that we all take extra effort to be considerate and empathetic to their concerns and anxieties.
The text above is intended for general information purposes only and should not be regarded as legal advice. Please contact Industry Legal Group if you require legal advice.
Tagged as: COVID-19, Employment