Maximising your Workforce - Workplace Relations & Management Considerations during and post-COVID-19

As businesses have adapted to the vastly different commercial landscape spawned by the COVID-19 crisis, the management of workplaces has, in turn, created significant challenges. Notwithstanding the financial support provided by the Federal Government’s Jobkeeper stimulus, strict requirements remain in place in respect of variations to employee rights, and employers must remain cognisant of the National Employment Standards, protections against unfair dismissal and cases of non-genuine redundancy, the General Protections of Part 3-1 of the Fair Work Act, the requirements of, and variations to, industry specific awards, individual and collective employee agreements and more.

Stand down directions

Many workplaces have stood down employees without pay in response to the pandemic. Section 524(1)(c) of the Fair Work Act (‘the Act’) provides that employers may “stand down an employee during a period in which the employee cannot be usefully employed” and in circumstances where there is “a stoppage of work for any cause for which the employer cannot reasonably be held responsible.” A recent case in the Fair Work Commission has highlighted the relevant considerations for employers when looking to stand down individuals or groups of employees and what constitutes an adequate “stoppage of work”.

In Independent Education Union of Australia v the Peninsula School T/A Peninsula Grammar School [2020] FWC 5180, a number of employees were stood down after the Victorian Government announced further COVID-19 related restrictions on 2 August 2020. The restrictions meant that most of the on-site facilities of the school were shut down, however remote learning continued online. Amongst the employees who were stood down were library technicians and a classroom learning assistant.

The school submitted that it stood the employees down in accordance with section 524 of the Act as it was unable to find any useful work for the employees once classes moved to remote learning. It also argued that the “stoppage of work” requirement of the Act does not necessitate a complete cessation of work.

However, Commissioner Bissett noted that a mere reduction in available work, or a variance in the type of work required alone would not be enough to satisfy a legitimate “stoppage of work”. Key points highlighted by the Commission included the following:

• A mere disruption to how work is to be performed or reduction in available work does not constitute a stoppage;

• There must be a defined aspect of business activity for which the performance of work has ceased.

The Commission held that there were two primary requirements of section 524:

1.       Was there a stoppage of work? If not, no legitimate stand down exists; and

2.       If so, was the cause of the stoppage for a reason which the employer could not reasonably be held responsible?

Under the circumstances, the Commission was satisfied that no stoppage of work existed for either the library technicians or the teaching assistant, as the library was still functional (despite being online) and classes were ongoing. The employees were therefore not validly stood down and the employees were permitted to return to work.

Workplaces, employee management & commercial considerations

While businesses continue to struggle in the context of the pandemic, the above decision reinforces the importance of ensuring that all workplace decisions are made in line with the Act and broader legislative instruments. Stand down directions are not a ‘get out of gaol free card’ for employers and should not be seen as a primary option to reduce financial pressure. The Act only allows employers to stand down employees in limited circumstances and subject to specific triggers being met.

Furthermore, although many businesses have already made significant cuts to their workforce, it is important to consider the broader practical and long-term effects of making substantial personnel change. Businesses should consider the costs of redundancies and the flow on effects – including the costs of recruitment and training new staff once businesses return to their full capacity. Less tangible factors, such as staff goodwill and the motivation of those retained, are also at risk where businesses decide to conduct mass terminations.

More effective businesses may look to restructure their existing and future staff utilisation. Reduction of hours, staff rotation and rosters, operational flexibility and forced leave are all measures which may be preferred, and the Jobkeeper rules and recent variations to modern awards have provided employers with greater flexibility to enact these responses. For instance, employees can be directed to perform duties that are within their skillset and competency, as long as the duties are reasonable, safe and the relevant employee is qualified to perform them.

If you have any questions, require specific employment and workplace management advice or you feel that your business may be impacted by these issues, please contact our team at Kerr & Kerr Partners for expert legal assistance.