The Fair Work Ombudsman has released advice for business owners.

As the Victorian Andrews Government has just announced a lockdown of all non-essential services from Tuesday 24th March – press release – here is what you should know about your employee entitlements.

The definition of non-essential is dependent on individual circumstance, and the government has urged Australians to consider the health of the community’s most vulnerable in deciding whether travel is essential or not.

NextGen HR are open 24/7 – please call for advice and support at any time – 0417 314 736


What if there is a forced shutdown of our business as part of the COVID ‘forced lockdown’.

Employers and employees are encouraged to work together to find appropriate solutions that suit the needs of individual workplaces and staff.

Under the Fair Work Act, and employee can only be stood down without pay if they cannot be usefully employed because of a stoppage of work for any cause for which the employer cannot be reasonably held responsible.

Some examples of when employers may be able to stand down employees include:

  • If there was an enforceable government order or direction requiring the business to close (which means there is no work at all for the employees to do, even from another location)
  • If a large proportion of the workforce was required to self-quarantine with the result that no useful work was able to be performed in the business by the remaining employees/workforce
  • If there was a stoppage of work due to lack of supply for which the employer could not be held responsible.

This is not an exhaustive list.

Enterprise agreements and employment contracts can have different or extra rules about when an employer can stand down an employee without pay, for example, a requirement to notify or consult. Employers should consider whether their obligations are impacted by any applicable enterprise agreement, award, employees’ employment contract or workplace policies.

For further information or clarification, please NextGen HR on 0417 314 736 as there are many options available to you as employers and there is no need to make decisions in desperation.

Further information can be found by visiting WorkSafe Victoria around WHS obligations in regards to employees and safety.

What if my children’s school has closed, can I take carer’s leave?

Yes, as it would be classed as an unexpected emergency. The same rules apply as per normal personal and carer’s leave provisions. As a reminder, here is the definition of Carers leave.

Sick and carer’s leave (also known as personal leave or personal /carer’s leave) lets an employee take time off to help them deal with personal illness, caring responsibilities and unexpected family emergencies.

An employee may take paid personal/carer’s leave:

  • If they are unfit for work because of their own personal illness or injury (including pregnancy related illness) or
  • To provide care or support to a member of their immediate family or household, because of a personal illness, injury or unexpected emergency affecting the member. A member of the employees immediate family means a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of an employee; or a child parent, grandparent, grandchild or sibling of the employee’s spouse or de facto partner

However, a fundamental reason for the Australian Workplace Relations System’s inception was for a fair go for all. Some agreement and compromise are always best practice in unprecedented circumstances.

If a worker has been told by their employer to remain at home and isolate themselves as a result of fears of exposure, how should they be paid?

They must be paid as usual.

This even extends to precautionary measures such as:

  • Being told to isolate as a result of the outbreak for a period of time to be on the safer side, this technically counts as a suspension from work and means that the worker should continue to get paid normally, without the need for any leave
  • If a worker is sick, regardless whether its COVID-19 or not, they are entitled to take paid sick leave, providing they have an accrued entitlement and produce medical certification (if required). Otherwise, they should take the leave as unpaid

Given the Australian Federal Government has legislated that any person coming home to Australia from Overseas must self-isolate (or face fines and legal charges), employers SHOULD:

  • Ensure any employee who has travelled, for leisure or work, outside of Australia from Monday 16th March, self-isolate and DO NOT return to work.
  • Communicate with their remaining staff that a colleague has been overseas and as a result is self-isolating for the period of time required
  • If working from home is not an option, or possible and an employee has voluntarily travelled overseas and returns to Australia after this date, they should take annual leave or unpaid leave should their balance of annual leave not be sufficient.

Can I let someone go if they have COVID-19 or are in self-isolation?

The simple answer is NO. That would be discriminatory and in direct conflict with the Fair Work Act.

What if my business is suffering a major downturn in sales?

There are many options available to small and medium sized businesses in these circumstances. As much as this is unprecedented situation, remaining calm and following all current obligations under the Fair Work Act must be followed.

If major workplace change is to occur, most awards and enterprise agreements will have a workplace consultation requirement. That is, to inform your workforce of all possibilities, including redundancies, pay cuts, changes to work patterns and rosters. To understand your obligations, please contact Xavier today.

What about casual employees?

Casual employees have an entitlement to 2 days carer’s leave should they require it, however beyond that any time away from work should be unpaid. Depending on your industry, and the possible ongoing and systematic nature of your casuals, you may need to be cautious of simply letting your casuals go. Further specific advice can be given for your circumstances by contacting us directly.

Please note: the information contained above is general in nature is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future.