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The below information is provided to employers around their legal obligations under different types of employment. It includes:

  • Legal obligations for permanent full time or part time employees
  • Legal obligations for casual employees
  • Questions and answers

This information is designed to enable farm owners to consider their workforce options and make decisions based on their needs, in accordance with legal requirements. Each farm is different and will approach COVID-19 in their own way, based on their requirements.

Keeping the lines of communication open with your employees is especially important during challenging and unexpected situations like COVID-19.

Consider how to best manage your workforce during COVID-19 to protect you, your family and your farm team’s health and wellbeing. This is not easy and circumstances may change rapidly as COVID19 progresses. Think about your current and possible future workforce needs if change is required in your farm business. 

You can use the COVID-19 flow chart for farm employers (Version 2, 14 April) to work through your responsibilities for permanent full-time and part-time staff.

Legal obligations for employers - permanent full time or part time employees *UPDATED
(Last update: 9 April 2020)

  • Copy Link 1. Employee chooses not to come to work based on personal risk

    No you don’t have to pay them.

    If an employee chooses not to come to work, you do not have to pay them for the time spent away from work.

    See footnotes 1 to 5 below.

  • Copy Link 2. Employee is forced to self-isolate due to close contact

    No you don’t have to pay them.

    Because the self-isolation is imposed by government, you do not have to pay the employee if they are self-isolating due to close contact.

    Employees who are self-isolating due to close contact should be encouraged to report to their employer daily in case they begin to exhibit symptoms.

    Check the Australian Government advice relating to self-isolation and factsheet.

    From 8 April 2020 award employees are entitled to take up to 2 weeks’ unpaid pandemic leave. This leave must commence before 30 June 2020.  Notice and evidence requirements apply.  Go to Schedule X of the Pastoral Award 2010.

    See footnotes 1 to 7 below.

  • Copy Link 3. When employee is sick

    Employees can access accrued personal/carer’s leave.

    If an employee contracts COVID-19 they would be entitled to utilise their accrued personal/carer’s leave (sick leave).

    If employees have used all of their personal/carer’s leave, see footnotes 1 to 7 below.

    From 8 April 2020 award employees are entitled to take up to 2 weeks’ unpaid pandemic leave. This leave must commence before 30 June 2020.  Notice and evidence requirements apply.  Go to Schedule X of the Pastoral Award 2010.

    You can ask for a medical certificate as evidence of the need for the leave.

    Remember - you cannot terminate an employee’s employment due to temporary absence for illness.

    Anti-discrimination laws also apply.

  • Copy Link 4. Employee is well, employer wants them to stay away from work

    Yes, you need to pay them.

    You are legally entitled to direct employees to stay away from work if the employer has concerns, but employee is not required by the government to self-isolate.

    Refer to #2 for more information about self-isolation.

  • Copy Link 5. Employee stays home to care for a child/relative who is sick and self-isolating

    Employees can access personal/carer’s leave.

    Employees who are required to care for a family / household member who is sick can use their accrued personal/carer’s leave.

    If this is exhausted, employees can access:

    • a further 2 days’ unpaid personal/carer’s leave per occasion.
    • 2 days’ paid compassionate leave per occasion if a family member or member of their household contracts a serious illness which poses a threat to their life.

    From 8 April 2020 award employees are entitled to take up to 2 weeks’ unpaid pandemic leave. This leave must commence before 30 June 2020.  Notice and evidence requirements apply.  Go to Schedule X of the Pastoral Award 2010.

    You can ask for a medical certificate as evidence of the need for the leave.

    If employees have used all of their personal/carer’s leave, see footnotes 1 to 7 below.

  • Copy Link 6. Employee is well, stays home to care for a child who can’t attend school

    Employees can access personal/carer’s leave.

    Employees who are required to provide care or support for a family / household member due to an “unexpected emergency” can use their accrued personal/carer’s leave.

    If this is exhausted employees can access a further 2 days’ unpaid personal/carer’s leave per occasion.

    COVID19 would be regarded as an “unexpected emergency”.

    If employees have used all of their personal/carer’s leave, see footnotes 1 to 5 below.

  • Copy Link Footnotes

    1. You could consider allowing employees to use their accrued annual leave.
    2. Employers cannot unreasonably refuse to agree to a request by an employee to take paid annual leave.
    3. COVID19 would be regarded as a reasonable reason to access annual leave.
    4. You could consider allowing employees to take annual leave in advance if they do not have sufficient accrued annual leave.
    5. You could also consider allowing employees to take Long service leave - laws vary from state to state. Check your relevant state government websites at The People in Dairy and refer to table at the bottom of this page.
    6. Reminder - accurate record keeping will be important. Visit The People in Dairy to access leave templates you can use in your farm business.
    7. From 8 April 2020 employers and award employees can agree in writing that the employee take annual leave at half pay. This leave must commence before 30 June 2020.  Go to Schedule X of the Pastoral Award 2010 for further detail.

  • Copy Link 1. Choose not to come to work based on personal risk

    If a casual employee chooses not to come to work, you do not have to pay them for the time spent away from work.

    Casual employees are paid a loading to compensate them for entitlements such as annual leave and personal leave (sick leave).

    See footnotes 1 to 2 below.

  • Copy Link 2. Employees are forced to self-isolate due to close contact

    No you don’t have to pay them.

    Casual employees are paid a loading to compensate them for entitlements such as personal leave (sick leave).

    Check the Australian Government advice relating to self-isolation and factsheet.

    From 8 April 2020 award employees are entitled to take up to 2 weeks’ unpaid pandemic leave. This leave must commence before 30 June 2020.  Notice and evidence requirements apply.  Go to Schedule X of the Pastoral Award 2010.

    See footnotes 1 to 2 below.

  • Copy Link 3. When employees are sick

    No you don’t have to pay them.

    Casual employees are paid a loading to compensate them for entitlements such as personal leave (sick leave).

    From 8 April 2020 award employees are entitled to take up to 2 weeks’ unpaid pandemic leave. This leave must commence before 30 June 2020.  Notice and evidence requirements apply. Go to Schedule X of the Pastoral Award 2010.

    Remember - you cannot terminate an employee’s employment due to temporary absence for illness.

    Anti-discrimination laws also apply.

    See footnotes 1 to 2 below.

  • Copy Link 4. Employee is well, employer wants them to stay away from work

    Yes, you need to pay them.

    You are legally entitled to direct employees to stay away from work if the employer has concerns, but employee is not required by the government to self-isolate.

    Refer to #2 for more information about self-isolation.

  • Copy Link 5. Employee stays home to care for a child/relative who is sick and self-isolating

    No you don’t have to pay them

    Casual employees are paid a loading to compensate them for entitlements such as personal leave (sick leave).

    Casual employees who are required to provide care or support for a family / household member due to an “unexpected emergency” can access a 2 days’ unpaid personal/carer’s leave per occasion.

    COVID-19 would be regarded as an “unexpected emergency”.

    Casual employees can also access 2 days’ unpaid compassionate leave per occasion if the family member or member of their household contracts a serious illness which poses a threat to their life.

    From 8 April 2020 award employees are entitled to take up to 2 weeks’ unpaid pandemic leave. This leave must commence before 30 June 2020.  Notice and evidence requirements apply.Go to Schedule X of the Pastoral Award 2010.

    You are entitled to ask for a medical certificate as evidence of the need for the leave.

    See footnotes 1 to 2 below.

  • Copy Link 6. Employee is well, stays home to care for a child who can’t attend school

    No you don’t have to pay them.

    Casual employees are paid a loading to compensate them for entitlements such as personal leave (sick leave).

    Casual employees who are required to provide care or support for a family / household member due to an “unexpected emergency” can access 2 days’ unpaid personal/carer’s leave per occasion.

    COVID-19 would be regarded as an “unexpected emergency”.

    See footnotes 1 to 2 below.

  • Copy Link Footnotes

    1. The government has indicated that it will allow easy access to government benefits for casual employees who cannot attend work – visit Services Australia for more information.
    2. Reminder - accurate record keeping will be important. Visit The People in Dairy to access leave templates you can use in your farm business

  • Copy Link Where can I find information and support regarding mental health?

    Taking care of yourself, your family, staff and your neighbours is always a priority and becomes even more important during unforeseen events like COVID-19.

    Read about how to manage risks to mental health in your business.

    Some resources about caring for mental health during the current outbreak include :

  • Copy Link Where can I get information on health and safety in the workplace?

    For information about health and safety in the workplace, including legal obligation of employers and employees, go to:

    Source: Fair Work Australia 

  • Copy Link How do I inform my staff of changes to their working arrangements?

    How do I inform my staff of changes to their working arrangements (e.g. reduced hours, increased hours, change of roster, change of duties that may impact on their classification)?

    Roster changes/changes to hours

    • Clause 8A of the Pastoral Award 2010 requires you to consult with employees about roster changes.

    • You must provide employees with information about the proposed changes and enter into discussions with employees seeking their views about the effect of the changes on them including their family and caring responsibilities.

    • You must take their views into consideration when making a decision.

    Read about how to deal with changing employment conditions for your staff.

    Changes to classification/duties

    • You cannot change the terms of employment without the consent of the employee.

    • If the position is no longer required, you must follow the requirements for redundancy. Visit The People in Dairy for more information.

    Remember - even if you do not have to pay redundancy pay because you are a small business, the requirements to consult (clause 8 of the Pastoral Award 2010) and the requirement to offer redeployment to available alternative employment still apply.

  • Copy Link Can employers legally restrict visitors to houses on the property?

    Can employers legally restrict visitors to houses on their properties on farm as a result of COVID19?

    The Australian Government advice is changing regularly in relation to public gatherings and visitors. We can all help slow the spread of COVID-19 in Australia. To protect others you must:

    If you have a confirmed case, you must isolate yourself to stop the virus spreading to other people.

    These limits help to prevent the spread of COVID-19. They are especially important for at risk people, such as older people (60+ years) and those existing health concerns.

    Individual states and territories may choose how to reinforce the requirements – which may mean different visitor numbers in states to homes and public gatherings. Visit your state or territory health department website for more information.

    Practically: once you are aware of the requirements in your state, discuss and explain the Government advice to your employees and the risks of inviting visitors on to the farm for everyone, especially if older and vulnerable people are living and/or working on the farm.

    You can require them to comply with government restrictions and if they do not they should be given a formal written warning that further non-compliance will result in dismissal. This is no different to requirements to follow animal welfare and biosecurity guidelines.

    Safe Work Australia provides health check and quarantine information those who provide accommodation for workers:

    • Check the temperature of your workers regularly.
    • Designate areas for quarantine and medical treatment of workers displaying symptoms.
    • Consider evacuating such workers from the site altogether.
    • Designate areas for quarantine of workers who report being a close contact of a diagnosed case of COVID-19.
    • Stop workers travelling to local communities during their time off.

    Protecting vulnerable people will vastly reduce the number of deaths due to COVID-19. Get employees on side with an agreed position that protects everyone. Source: Department of Health (30/3/20)

  • Copy Link Employing new staff, including backpackers, during COVID19

    When employing new staff - especially backpackers – should the farm request all new starters to quarantine for 2 weeks before starting? – Understand Yes, if they have just arrived in country but what if been here for a while?

    Last updated: 6 April 2020

    As of 4 April 2020, seasonal workers planning on travelling between urban and regional areas need to self-isolate for 14 days when moving between areas to reduce the spread of COVID-19. 

    States and territories can apply their own restrictions, including closing their state borders. Click to find out more about travel restrictions in your state or territory

    Read the Australian Government information on self-isolation (self-quarantine) for COVID-19.

    Read about COVID-19 updates to Working Holiday Visas

    The National Farmers Federation have produced protocols for managing itinerant workers which provides an option to require staff (and especially any new employees you engage during this period) to regularly complete a disclosure form. This will indicate where they have been for the previous 14 days; that they are not aware of any contact with any infectious persons; and that they have no symptoms or signs of infection themselves. Similar declarations could be obtained from contractors.

    Sample disclosure forms are on page 15 of the NFF COVID-19 Workplace Guide

    Protocols for Managing Risks Posed by Itinerant Workers (at 1/4/20)

    1. Always know where both new and current workers have been for the previous 14 days, including where they are living and, at least generally, who they have been associating with.
      The declaration/checklist will address this requirement. Although it may seem slightly invasive, in the current crisis any worker should expect their employer to ask these questions and provided you maintain their privacy it should not present an issue.
    2. Ensure that any new worker with no prior exposure to your workforce observes a 14-day isolation period prior to commencing work. New workers can be isolated on the farm if they observe social distancing requirements within the farm gate and do not share accommodation with other workers. The authorities are aware of the issue of paying for expenses such as food and accommodation whilst the worker is isolated but at present the hard truth is that the worker must find a way to cover it themselves
    3. Ask new/potential workers to share accommodation with the others in their work team — especially if you can provide it for them —so long as they do not mix with existing workers. If you’ve already got workers on farm they must not share accommodation with new workers. You are entitled to give priority to applicants who can demonstrate a willingness to observe that request.
    4. Before each shift, obtain a declaration covering movements and potential exposure and retain it as a workplace record. Although this may be tedious, it will not only allow you to plan and prepare, it may also influence the employees’ behaviour while away from work.
    5. Hold a toolbox talk before each shift explaining social distancing and hygiene requirements, and the other protocols you have put in place.
    6. Adopt and/or change work practices and procedures to reflect current circumstance and enable workers to observe hygiene and social distancing requirements while working. Appropriate protocol will vary from farm to farm, but consider limiting staff to essential duties, staggering shifts, and ensure cleaning and disinfectant facilities are available and used before, during and after each shift. Find more information on Dairy Australia's COVID-19 directory, Information for farm owners and employees.
    7. Ensure you know where your staff are at all times, ideally keeping good records of where and what they are doing
    8. If any workers demonstrate any symptoms, take the following steps: 
       
      a. Immediately isolate the suspected infectious person and direct them to be tested for the virus;

      b. Identify and immediately isolate anyone who the infectious person may have contacted and direct them to be tested for the virus,
      c. Thoroughly clean and disinfect any places or things which were in contact with the persons and the people that he/she contacted. 

    Source: National Farmers Federation (1/4/20)

    Can this be a condition of employment if not being paid to do so?

    As of 4 April 2020, seasonal workers planning on travelling between urban and regional areas need to self-isolate for 14 days when moving between areas to reduce the spread of COVID-19.

    Some states and territories have largely closed their borders, requiring people arriving from interstate to self-quarantine for at least 14 days. However, there are some exemptions, including services that support agriculture.

    You should stay up to date on the latest travel restrictions and requirements from the Commonwealth, state and territory governments and provide that information to your workers. (Source Safe Work Australia).

    Stay up to date with your state arrangements. This information is changing regularly – you can check border restrictions and exemptions.

    If the person is quarantined by reason of government restrictions, you do not have to pay them while they are not working.

  • Copy Link Changes to Working Holiday Visas

    What changes have been made to Working Holiday Visas for people working on dairy farms?

    Updated 6 April 2020

    On 4 April 2020, the federal government announced changes to the visa system as it applies to Working Holiday Makers (WHMs) (subclass 417 working holiday visas and subclass 462 work and holiday visas).

    People with a WHM visa:

    • whose visa is due to expire in six months who have not completed the requirements for a second or third working holiday visa as at 4 April 2020 (3 months’ and 6 months’ work in specified work respectively)
    • and who wish to stay in Australia (and/or are unable to return to their home country)

    are able to work in ‘specified work’, which includes dairy farming, if they obtain an extension to their visa via the Temporary Activity subclass 408 Australian Government Endorsed Event (AGEE) stream visa. The “Pandemic visa” is free.

    Visit Department of Home Affairs for further information and to apply for the “Pandemic visa” and read the Frequently Asked Questions for WHM visa

    For more information, direct all enquiries to the Department of Home Affairs

    Remember: working in Australia without a visa with work rights is a breach of the law by both employer and employee. Check visa conditions online at VEVO

    WHMs working in ‘specified work’, which includes dairy farming, are able to work for the one employer for 12 months, rather than six months.

    WHMs who have completed the 3 month or 6 month requirement for specified work should apply in the ordinary manner for a second or third 417 or 462 visa. A bridging visa will be provided to enable them to continue to work while the visa is processed.

  • Copy Link Farm team quarantine requirements if a staff member contracts COVID-19

    If a staff member contracts COVID-19, will all other staff and possibly working family members therefore be quarantined under the close contact guidelines?

    The Australian Government advice states you must self-isolate if any of the following applies (30/3/20):

    • you have COVID-19
    • you have been in close contact with a confirmed case of COVID-19
    • you arrived in Australia after midnight on 15 March 2020

    If employees have come into close contact with a confirmed case of COVID19, they will need to self-isolate. 

    NSW Government defines close contact as someone who has been

    • face to face for at least 15 minutes, or
    • in the same closed space for at least 2 hours, as someone who has tested positive for the COVID-19 when that person was infectious.

    Read the Australian Government information regarding self-isolation (self-quarantine)

    How do we keep the family farm running?

    Employees: If employees have come into close contact with a confirmed case of COVID19, they will need to self-isolate.
    Read the Australian Government information regarding self-isolation (self-quarantine)

    Family members: if your household is quarantined because someone in the household or a close contact has COVID19, you would need to comply with the self-isolation guidelines as per the Australian Government. In this scenario, employees who have been exposed would be in self-isolation and therefore not in the workplace.

    COVID-19 is a ‘sticky’ virus that finds its way onto surfaces and is spread by common touch. Preventing touching of surfaces, and disinfecting surfaces that have been touched is key to its control. Older (60+ years old) and vulnerable people need to be proactive:

    • Self-isolate, associate only with other isolated people. 
    • Organise systems to prevent exposure to the virus - by avoiding physical proximity to other people, and by disinfecting shared surfaces. 

    At this time (2/4/20), there is no Federal Government advice specifically dealing with farming but government advice for those required to self-isolate in a private house, apartment of hotel states you can go outside into a garden, including a common garden so long as you:

    • wear a surgical mask to minimise risk to others
    • stay 1.5 metres from other people
    • move quickly through common areas

    At this time, SA has clarified the self-isolation boundary for farmersother states may follow If you are a primary producer and have been ordered to self-isolate, you must remain within the boundaries of your property and avoid contact with other people. Essential travel within and between land parcels is acceptable, provided you avoid contact with any staff/contractors and visitors (e.g. stay in your vehicle with windows closed to allow contractors or deliveries to enter the property via a gate.) If you develop symptoms of COVID-19 you must not travel outside the boundaries of your main property except to seek testing for COVID-19 or for urgent medical care. Source: SA Health (2/4/20)

    In addition to this information, remember that those over 60 years of age and vulnerable people are advised to keep away from all visitors as they are at significant risk of COVID19.

    Based on this advice, if you are well you may be able to go out in the farm and attend to work so long as you:

    • do not come into any contact at all with employees. 
    • do not come into any contact with any visitors  
    • are not over the age of 60 years old (regardless of how fit and healthy you are) OR have pre-existing health conditions such as diabetes, cancer treatments, emphysema, heart disease, hypertension and other chronic conditions – you should be completely self-isolated from workplace and common areas due to significant risk of COVID19
    • do not share any equipment, tools, pens or pencils, vehicles, workstations etc
    • clean and disinfect all shared surfaces

    Existing employees can return to workplace once they have completed their 14- day self-isolation period without developing symptoms. Read the Australia Government advice about returning to your community

    In addition to COVID19 hygiene protocols listed below, (consider how you can manage your workforce to protect everyone and prevent infection:

    COVID-19 hygiene precautions

    • No human contact - no shaking hands, passing drinks, or touching common surfaces
    • Physical distance as far apart as practicable, at least 2.0m.  This is about controlling the aerosols created by normal breath and droplets created by a cough or sneeze.  This virus can live suspended in the air for several hours.
    • Disinfect everything that is brought into the workplace:
      • Time - let it sit for a week or more in dry conditions.
      • Alcohol -  a solution or wipes with at least 70% alcohol. 
      • Bleach at 0.1% solution
      • Detergent - thorough washing of surfaces with a generous quantity of detergent.
    • Do not share equipment, tools, pens or pencils, vehicles, workstations etc.  Have workers use their own equipment and separate vehicles, and plan to prevent touching any common surfaces. 
    • If items are to be shared, they must be disinfected between use.  

    Do not touch your face - this is how infection occurs.  Wearing gloves and/or a mask can help with this.  

  • Copy Link Managing older workers

    If an older worker is worried about the virus and wants to take annual leave for 2 weeks, can we ask for a medical clearance before he returns to work even though he has no symptoms of the virus?

    You have a right to give lawful and reasonable directions and employees have a duty to follow these directions.  Given that the government has declared a pandemic, such a direction would be regarded as reasonable.

    In addition, you have duties under Work Health and Safety laws to ensure a safe workplace.

    The Work Health and Safety laws also require employees to obey reasonable instructions. Employees also have duties under Work Health and Safety laws to take reasonable care for their own health and safety and not adversely affect the health and safety of other persons in the workplace.

    In this circumstance you are obliged to pay the employee for the time taken to get the medical certificate and the time taken to get the clearance (2 to 5 days).

    Practically

    With health systems stretched to the limit and limited testing kits available the employee may not be easily able to get an appointment so you should only insist on such a test IF there is a likelihood of recent exposure. 

    Follow the Australian Government guidelines on when testing is recommended

  • Copy Link Farm team quarantine requirements if a staff member suspects they have come into contact with COVID-19

    We have 8 employees on farm as well as my husband and I. If one of our employees suspects he/she has come into contact with Covid-19, do we need to send all workers home until cleared, or just the individual worker?

    If a person is suspected of coming into contact with COVID-19, the employee may need to be isolated. This would be determined by your public health unit on a case-by-case basis. Your public health unit will contact you if you or other employees need to self-isolate (self-quarantine).
    Source: Australian Department of Health FAQs 

    In the event that staff have come in contact with a confirmed case of COVID-19, click here for Farm quarantine requirements if a staff member contracts COVID-19

    If the employee is required by the government to self-isolate (self-quarantine), then you do not have to pay them. If they become unwell then they would be entitled to access personal / carers’ (sick) leave.
    Read the Australian Government self-isolation (self-quarantine) information

  • Copy Link Scenario: Worker A stops work to care for another and Worker B is employed as a casual to fill in

    Updated 2 April 2020

    Scenario:

    Worker A stops work to care for a person who is sick or self-isolating or has a child that is unable to attend school.  They use up all their personal leave, annual leave and compassionate leave. They are still not willing or able to return to work.  At this point, they have been away from the dairy for five weeks. 

    Part A: Can you direct the employee to return to work if they do not comply, terminate them for disobeying a lawful and reasonable direction?

    The Law
    It is unlikely that a direction to return to work when an employee has family and caring responsibilities would be regarded as a ‘reasonable’ direction. This is even more so given the situation with the COVID-19 pandemic.

    The following legislation needs to be considered:

    The Federal Sex Discrimination Act 1984
    Federal Sex Discrimination Act 1984 prevents discrimination on the basis of family responsibilities. If an employer has family responsibilities, it is a breach of discrimination law if you treat them differently to another employee because of family responsibilities.

    Fair Work Act 2009 section 351
    Section 351 of the Fair Work Act 2009 prevents employers from taking Adverse Action against an employee, such as dismissal, or altering their position to their prejudice or discriminating against them due to family responsibilities. Damages for a successful Adverse Action claim can be significant.

    Part B:  Can I argue that they have abandoned their employment?

     Abandonment of employment is a complex area of the law and employers should be extremely wary of assuming that an employee has abandoned their employment. If you can contact the employee, you should do so and you should ask them why they are not returning to work.

    If they have a good reason, and family and caring responsibilities due to the COVID-19 pandemic would be regarded as a good reason, it is likely that a later claim for unfair dismissal would be upheld. Damages of up to 6 months’ pay may be awarded for a successful Unfair Dismissal claim.

    Scenario:

    During this time, the employer has had to put on another staff member (Worker B) to do the tasks on the farm which worker A was performing. Worker B is employed as a casual employee. The employer is now paying for 2 staff members (Worker A and Worker B), but only getting work from one (because Worker A is being paid accrued entitlements).  

    Worker A is still unable to return to work after their entitlements run out, meaning that Worker B must remain on. They now do not have to pay Worker A.

    Worker A gives no timeframe as to when they will be able to return to work.  Worker B continues working but wishes to be swapped over to a part time position which the employer would like too due to cash flow.  Can we do this?

    Yes, you can swap Worker B over to a part time position if they agree to do so on a written contract (which is signed and dated by the employee and a copy kept) which clearly states that the position will terminate when Worker A returns.

    Worker B would then be entitled to pro rata leave and other entitlements and you would save paying the casual loading, thus having a positive effect on cash flow. 

    This is in fact no different to the situation where a worker has taken parental leave and will return at some time in the future and you need to cover the position until this this occurs.

    Contract templates are available at The People in Dairy website - remember to state clearly that the position terminates when Worker A returns in the contract you create.

  • Copy Link Scenario: An employee not adhering to social distancing guidelines outside of work is seen as a risk to your business

    Updated 2 April 2020

    Scenario

    An employee believes he will not get COVID-19 - or at the least, will not get very sick from it- and continues to flaunt social distancing by going out with friends and having people around to his house.

    As an employer, I have a reason to believe he poses a risk to others on the farm (inc. family) -  I ask him to stay away from work so he doesn’t potentially infect other staff that are following government and health dept recommendations.

    If I ask him to stay away, am I required to pay him his normal pay rate, which does not come from his accrued leave entitlements?

    I’m concerned this could become a continuing a practice of reckless behaviour with employees being asked to stay away from the business and continuing to be paid at normal rate and not eating into any of their entitlements.

    The Law

    The law is clear that if the employer wishes an employee not to attend work and they are not required by the government to self-isolate (or self-quarantine), the employer must pay the employee for ordinary hours (not overtime) they would have worked had they been at work. The employee cannot be required to utlise accrued leave entitlements.

    This is the position as at 1 April 2020 whilst government directives are as follows - you must self-isolate (self-quarantine) if any of the following applies:

    • you have COVID-19
    • you have been in close contact with a confirmed case of COVID-19
    • you arrived in Australia after midnight on 15 March 2020

    Read the Australian Government information

    Unfortunately, there is nothing to stop reckless behaviour at this stage (1 April 2020).

    Unfortunately, the industrial relations laws do not anticipate a situation such as COVID-19. This is made more difficult by the fact that there is no option in dairy farming to direct the person to work from home.

    Work Health and Safety laws (Source: WorkSafe Victoria)  
    You have duties under Work Health and Safety laws to ensure a safe workplace.

    Employees also have duties under Work Health and Safety laws (WHS laws) to take reasonable care for their own health and safety and not adversely affect the health and safety of other persons in the workplace and to comply with the employer’s policies, procedures and reasonable instructions.

    Employees must co-operate with their employer in implementing risk control measures. They must take all reasonably practicable steps to ensure they don’t do anything that creates or increases a risk to the health and safety of themselves or others.

    In a pandemic situation, it is reasonable to expect that these obligations placed on the employee and employer will include complying with public health advice and any emergency measures.

    Implement the usual procedure for WHS risks as follows:

    1. Identify the hazard. Talk to the employee to verify whether the at-risk behaviour is occurring and if so request them to immediately cease the at-risk behaviour. Tell the employee that this is not acceptable and explain that they are in breach of their health and safety obligations to themselves and others and increasing the risk for you as an employer as you could lose your whole workforce and be charged for failing to provide a safe and healthy workplace. Inform them that any further breach will result in disciplinary action that may include immediate termination of employment.Put this in writing and ask the employee to sign a copy.Keep a copy with your employment records and monitor their compliance.
    2. Assess the risks.Think about your farm team and consider the risks. COVID19 is unprecedented. The risks to your business are significant.
      • This virus is not just another flu.
      • It is much more contagious, and much more deadly.
      • COVID19 is mostly transmitted by people who are showing no symptoms
      • Who and what could be impacted if someone is infected with COVID19 in your farm business?
      • In your farm team and family, including yourself, are there people over 60 or people with pre-existing health conditions (such as diabetes, emphysema, heart disease, hypertension and other chronic conditions). COVID-19 is many times more deadly for people in this category - regardless of how fit and healthy they are. Protecting vulnerable people will vastly reduce the number of deaths due to COVID-19.
      • Younger people are not invincible, people under the age of 60 have made up approximately 20% of total deaths overseas.
      • What tasks are business critical or essential in your business? Who are currently doing these tasks and how – for example, are the same employees working the same shifts to limit infection across your workforce, what hygiene precautions and protocols do you have in place to protect you and your farm team?
    3. Control the risk.This means requiring the employee to comply with their legal health and safety obligations to themselves and others. It may also mean requiring the recalcitrant employee to wear PPE all of the time whilst at work and having breaks alone.Consider whether you can give the employee tasks which can be done away from other workers such as mending fences. Try to organize shifts which mean his contact with other workers is limited.Organise systems to prevent exposure to the virus by disinfecting shared surfaces.
    4. Review the control measures.If the employee refuses to comply with these lawful and reasonable directions, for a minor breach, give them a written warning which states that refusal to follow these directions will result in instant dismissal.The warning letter should be on paper (not by SMS) and you should keep a copy with your employment records.If we have evidence that the employee is not complying with the control measures, you can consider dismissing the employee and should seek legal advice. (If you are a small business (less than 15 employees) also refer to the Small Business Fair Dismissal Code. For a serious breach that clearly puts themselves or others at serious risk you should immediately suspend the employee on full pay and seek legal advice about instant dismissal.

    If you have followed all government guidelines for providing a safe working environment, it is unlikely that you would later be prosecuted. 

    The important thing is that you actively consider the context of your business or undertaking, the specifics of your workplace and all the workers and others to whom you owe a work health and safety duty and take every step you reasonably can to eliminate or minimise any risks to health and safety.

    If you want to be absolutely certain and you suspect the employee may infect others employed in your business, you may have to tell the employee not to attend work, noting they are not ill or showing signs of COVID19 and pay them.

    You should pay them for ordinary hours not overtime not worked.

    This would meet your requirements to provide a safe workplace (under WHS laws) and protect your farm team from possible infection.

    This may not be a preferable option in terms of paying wages / cash flow, however it may protect you and your business in the long term.

    Scenario

    Will the employer be liable under work health and safety laws if other workers fell ill because an infected worker was not directed to stay away from the workplace, even though the employer suspected that activities outside the farm gate (and of no responsibility of the farm) led to the worker becoming infected in the first place?

    What is the duty of care of the employer?

    There are two possible scenarios: 

    1. If an employee is confirmed to be infected with COVID-19 they should not be at the workplace, as per the advice of the Australian Government, and health and safety legislation and must self-isolate
    2. The employee attended work without showing symptoms, but the employer suspected that they had not followed government guidelines and they and other workers have subsequently contracted COVID-19.

    Work Health and Safety laws provide that you actively consider the context of your business or undertaking, the specifics of your workplace and all the workers and others to whom you owe a work health and safety duty and take every step you reasonably can to eliminate or minimise any risks to health and safety.

    Inform all workers that they also have obligations under health and safety legislation not to put themselves at risk, not to put others health and safety at risk and to comply with their employer's health and safety policies, procedures and reasonable instructions. 

    Implement the usual procedure for WHS risks as follows:

    1. Identify the hazard.Talk to the employee to verify whether the at-risk behaviour is occurring and if so request them to immediately cease the at-risk behavior.Tell the employee that this is not acceptable and explain that they are in breach of their health and safety obligations to themselves and others and increasing the risk for you as an employer as you could lose your whole workforce and be charged for failing to provide a safe and healthy workplace. Inform them that any further breach will result in disciplinary action that may include immediate termination of employment.Put this in writing and ask the employee to sign a copy.Keep a copy with your employment records and monitor their compliance.
    2. Assess the risks.Think about your farm team and consider the risks. COVID19 is unprecedented. The risks to your business are significant.
      • This virus is not just another flu.
      • It is much more contagious, and much more deadly.
      • COVID19 is mostly transmitted by people who are showing no symptoms
      • Who and what could be impacted if someone is infected with COVID19 in your farm business?
      • In your farm team and family, including yourself, are there people over 60 or people with pre-existing health conditions (such as diabetes, emphysema, heart disease, hypertension and other chronic conditions). COVID-19 is many times more deadly for people in this category - regardless of how fit and healthy they are. Protecting vulnerable people will vastly reduce the number of deaths due to COVID-19.
      • Younger people are not invincible, people under the age of 60 have made up approximately 20% of total deaths overseas.
      • What tasks are business critical or essential in your business? Who are currently doing these tasks and how – for example, are the same employees working the same shifts to limit infection across your workforce, what hygiene precautions and protocols do you have in place to protect you and your farm team?
    3. Control the risk.This means requiring the employee to comply with their legal health and safety obligations to themselves and others. It may also mean requiring the recalcitrant employee to wear PPE all of the time whilst at work and having breaks alone.Consider whether you can give the employee tasks which can be done away from other workers such as mending fences. Try to organize shifts which mean his contact with other workers is limited.Organise systems to prevent exposure to the virus by disinfecting shared surfaces.
    4. Review the control measures.If the employee refuses to comply with these lawful and reasonable directions, for a minor breach, give them a written warning which states that refusal to follow these directions will result in instant dismissal.The warning letter should be on paper (not by SMS) and you should keep a copy with your employment records.If we have evidence that the employee is not complying with the control measures, you can consider dismissing the employee and should seek legal advice. (If you are a small business (less than 15 employees) also refer to the Small Business Fair Dismissal Code For a serious breach that clearly puts themselves or others at serious risk you should immediately suspend the employee on full pay and seek legal advice about instant dismissal.

    If you have followed the government advice below it is unlikely that you would be prosecuted.

    The Australian Government advice states you must self-isolate if any of the following applies (30/3/20):

    • you have COVID-19
    • you have been in close contact with a confirmed case of COVID-19
    • you arrived in Australia after midnight on 15 March 2020

     If employees have come into close contact with a confirmed case of COVID-19, they will need to self-isolate.

    Are there potential workers compensation issues if that employee contracts COVID-19?

    Workers’ Compensation

    There MAY be workers’ compensation issues in the future but given the situation with COVID-19 there would need to be clear evidence that the virus was passed on in the workplace and not elsewhere in the community. 

    If a claim is made contact your insurer.

    Keeping records of known reckless behaviour such as screen shots of social media posts would be useful should a claim arise.

  • Copy Link Scenario: A farmer’s child has just returned from overseas and must self-isolate for 14 days.

    Scenario: A farmer’s child has just returned from overseas and must self-isolate for 14 days. He works on the farm, the Herd Manager and another staff member are both overseas so they are running on a light crew and want the son back as soon as they can to work. As part of the self-isolation, is the son allowed to work?

    The employer will have the same dilemma when the Herd Manager returns and the other employee, and so wants to ensure he is not at breach of the quarantine requirements by allowing them back to work.

    The Law: The federal government has ordered that as of 15 March 2020, all people who arrive in Australia from overseas must place themselves in quarantine for a period of 14 days. There are criminal penalties for not complying. During the 14-day period returning travellers must stay at home and self-isolate. Staying home means you:

    • do not go to public places such as work, school, shopping centres, childcare or university

    • ask someone to get food and other necessities for you and leave them at your front door

    • do not let visitors in — only people who usually live with you should be in your home

    • do not need to wear a mask in your home, but do wear one if you have to go out (for example to seek medical attention)

    • should stay in touch by phone and online with your family and friends

    For further information about staying at home and isolating, visit the Department of Health website.

    Practically: Family farms are both a home and workplace - but do not necessarily fit the criteria of public places. While at home, in self-isolation and/or quarantine, farmers should:

    • Observe the principles of self-isolation – avoiding close contact with other people - to avoid the risk of spreading the disease to other people.

    • Not be in the vicinity of persons other than the people they usually live with, assuming these people have not come into contact with COVID-19

    • Not be in the vicinity of older people (60 years +) who are considered at high risk of COVID-19

    • While in isolation, only essential farm visitors should be allowed (e.g. service providers, tanker operators) with no contact between farmer and any visitors

    • Disinfect all surfaces, such as those which may be touched by a tanker operator, and not be in the vicinity when they arrive.

  • Copy Link What happens if my staff are exposed to the virus on the farm?

    What happens if my staff are exposed to the virus on the farm (e.g. by other staff)?

    If an employee is confirmed to have COVID-19, you need to follow the health advice from the National Coronavirus Helpline on 1800 020 080 or your state or territory helpline.

    What needs to be done to meet your work health and safety duty will depend on your circumstances - contact your state or territory WHS regulator for specific advice on your situation.  

    If you know an employee is confirmed to have the COVID-19 virus, you must make sure the worker does not return to work while they are infectious and follow  Australian Government self-isolation (self-quarantine) guidelines.

    If you notice a worker showing other signs they may be unwell (e.g. frequent coughing) and you think they should not be at work, you should follow your usual workplace policies and procedures. This may include directing the worker to go home.

    If you decide to require workers to stay away from work and they are not required to do so by government direction, you may still be obliged to pay them and you cannot require them to use their accrued entitlements.

    Visit Safe Work Australia for more information

    Does this become a Workcover issue?

    Possibly: This MAY be a workers’ compensation issue but given the situation with COVID-19 there would need to be clear evidence that the virus was passed on in the workplace and not elsewhere in the community. Talk to your insurer if this issue arises.

    All workers’ compensation arrangements are the responsibility of the Commonwealth, and each state and territory (jurisdictions). In response to the COVID-19 pandemic, workers’ compensation authorities across the jurisdictions are providing additional information for workers, employers, medical and health practitioners and others.

    Read more about Workers’ Compensation and COVID-19 at Safe Work Australia.

  • Copy Link Can I ask for doctors’ certificates to state employees are fit...?

    Can I ask for doctors’ certificates to state employees are fit if I think they could have been exposed through their personal activities?

    Yes. Legally, you have a right to give lawful and reasonable directions and employees have a duty to follow these directions. Given the government has declared a pandemic, such a direction would be regarded as reasonable.

    In addition, you have duties under Work Health and Safety laws to ensure a safe workplace:

    • The Work Health and Safety laws also require employees to obey reasonable instructions.

    • Employees also have duties under Work Health and Safety laws to take reasonable care for their own health and safety and not adversely affect the health and safety of other persons in the workplace.

    In this circumstance, you are obliged to pay the employee for the time taken to get the medical certificate and the time taken to get the clearance (2 to 5 days).

    Practically: With health systems stretched to the limit and limited testing kits available, the employee may not be easily able to get an appointment so you should only insist on such a test IF there is a likelihood of recent exposure. Follow the government guidelines on when testing is recommended.

    Information for employers is available from the Department of Health.

  • Copy Link What should an employer do if supplies of necessities are not available?

    What should an employer do if supplies of real or perceived necessities are not available (e.g. hand sanitiser, masks)? 

    Safe Work Australia advises: under the model WHS laws, employers must do everything that is reasonably practicable to eliminate the risk of a worker contracting COVID-19 at the workplace, or where this is not reasonably practicable, they must minimise the risk of a worker contracting COVID-19 at the workplace.

    This means employers must provide a work environment that is without risk to health and safety, including access to facilities for good hygiene such as adequate supply of soap, water and toilet paper; and make sure these are kept clean, properly stocked and in good working order.

    If those supplies are not available, for the purposes of the model WHS laws, it would not be reasonably practicable for an employer to provide them.

    For example:

    • If there are no supplies of masks in Australia, an employer cannot be required, to provide a mask. In those circumstances, an employer should consider what alternative measures or approaches can be taken to eliminate or minimise risk.

    • If there are no supplies of hand sanitiser, a PCBU should consider providing access to soap rather than hand sanitiser.

    Ultimately however, if an employer is unable to obtain necessary supplies to provide a work environment that is without risks, they should consider whether the risks posed to workers and others at the workplace are so great that workers should not be required to attend the workplace and perform work. This will need to be determined on a case by case basis. Read more at Safe Work Australia.

    Source: Safe Work Australia

  • Copy Link What entitlements do contractors have?

    Independent contractors are not employees and do not have paid leave entitlements under the Fair Work Act.

    • Farmers may choose to engage an independent contractor when they have a specific job which needs to be done by a person with a particular skill, for instance, silage making or hay making.

    • It’s important to be able to distinguish between an independent contractor and an employee - the law imposes different rights and obligations on those who engage independent contractors and those who engage employees.

    At the same time, it is important to distinguish between a person who comes to work for you as an independent contractor and the various professionals and trades people who come to your property (e.g. electricians, vets and AI technicians). This section does not deal with these people as the arrangements under which they provide a service to you are usually clear cut and well understood.

    Visit The People in Dairy for further information about contractors.

  • Copy Link If a contractor is deemed an employee, what implications does this have?

    If a contractor is deemed an employee, what implications does this have on my business and their entitlements?

    If the contractor is, in reality, an employee, then they are entitled to the benefits listed above. 

    Once the crisis passes this may be a good time to reassess these arrangements. Visit The People in Dairy for further information about contractors. 

  • Copy Link Is financial assistance available for employers?

    The Australian Government has announced support for small businesses which you may be able to access regarding to employing staff, apprentices or trainees, boosting cash flow and assistance for regional communities and industries, including agriculture, affected by COVID-19.

    Visit the Federal Business website for more information.

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