Returning to work: Everything businesses need to be aware of
As restrictions begin to ease, many business owners are now facing the decision of whether to return to work. There are a variety of legal considerations businesses need to consider before making this step.
Providing a safe work environment
It is important to remember that under section 19 of the Work Health and Safety Act 2011 No 10 persons conducting a business owe a primary duty of care to their employees. This effectively means ensuring the health and safety of their employees is not put at risk as part of the conduct of their business and includes continually and comprehensively exercising due diligence to ensure they comply with Work Health and Safety obligations.
When employees begin returning to work, employers will need to ensure they implement and review COVID-19 control measures to minimise risks and provide a healthy and safe working environment. This can include:
- Ensuring compliance of Work Health and Safety laws and federal, state and local government orders.
- Remaining informed of the latest advice from health authorities.
- Preparing for cases of COVID-19 in the workplace to be able to respond effectively and efficiently consistent with advice from health authorities.
- Applying unique control measures to their workplace such as ensuring social distancing, good hygiene practices, cleaning and disinfected workplaces, signage to remind workers of COVID-19 risks and responsibilities and changes to the layout of the workplace.
Complying with employment law
These changes allow employers to give directions such as standing down employees (reducing hours or days of work) as well as unilaterally change employee’s usual duties and location of work and agree with employees to change workdays or take annual leave.
For employers who have stood down employees during COVID-19 and reopen their business, they will need to be pay their employees who can be usefully employed. This is because a stand down will only occur in circumstances where employees cannot be usefully employed because of industrial action, a breakdown of machinery or equipment or stoppages of work for which the employer cannot reasonably be held responsible.
Maintaining commercial leases
There have been a number of significant changes to rules governing commercial leases which businesses ought to be aware of when returning to work. A new mandatory Code of Conduct has been introduced which will apply to businesses eligible for the Government’s JobKeeper programme who have an annual turnover of up to $50 million. Under the Code, commercial landlords must adhere to a number of good faith principles during the COVID-19 period or subsequent recovery period including refraining from:
- Terminating of leases for non-payment of rent
- Non-compliance with terms of negotiated changes to leases
- Drawing on tenant’s security including cash bonds, bank guarantees or personal guarantees for non-payment of rent
- Introducing fees, interest or other charges with respect to waived rent or deferrals
- Introducing rent increases
- Applying penalties for a reduction in opening hours or ceases of trade
Along with this, commercial landlords are required to offer rent relief proportionate to the businesses’ fall in turnover with complete waivers making up at least 50 per cent of any relief provided and deferrals making up the rest. Savings from land tax concessions will also be offered to commercial tenants and they will be able to extend their lease for the period of the rent waiver or deferral period.
What can we take from this?
Navigating the COVID-19 pandemic for businesses is challenging. It is important to be aware of obligations to employees and support and subsidies available to businesses.
If an employer is unsure of their legal obligations or need support accessing government benefits, it is important to seek independent legal advice.