NSW Restrictions Workplace Relations Update

With NSW Premier Gladys Berejiklian this afternoon announcing new restrictions impacting 4 significant LGA’s across Sydney, we have put together this urgent video that discusses the HR & Workplace Relations impacts that this may have for businesses.
We encourage you to share this important and time critical information with a relevant person withing your organisation, or to your clients, so that they can manage their HR & Workplace Relations affairs through these challenging times.
As you are no doubt aware, these new restrictions are a rapidly evolving subject and each business and employee situation is different.  If you or your clients require specific advice for their circumstances, please do not hesitate to contact On Demand HR 

Please see below for a full transcript of the video.

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Transcript

Hello, Andrew Koleda here from On Demand HR with an important update for our clients, associate members and guests regarding the recent NSW restrictions that were announced on Friday the 25th June 2021 and the Workplace Relations impacts and strategies for business.

The restrictions are currently in place until at least 11:59 on Friday 2 July 2021 and impact residents or people whose usual place of work is in Woollahra, Waverley, Randwick and City of Sydney Council.

These people have been issued with a “stay at home” order and may only leave their homes for 4 reasons:

  • Shopping for food or other essential goods and services;
  • Medical care or compassionate needs;
  • Exercise outdoors in groups of 10 or fewer;
  • Essential work, or education, where you cannot work or study from home.

On Demand HR’s interpretation of these restrictions are that in many areas they are rather vague.  In particular, the terms “usual place of work” and “essential work” seems to leave a great deal of interpretation required by businesses to direct employees and make operational decisions.  All of us will have to wait for further clarification on these issues.  Notwithstanding this, there are a number of decision that we expect employers will be making in the coming days in response to these restrictions, and it is important for employers to understand the key considerations arising from the Fair Work Act and Modern Awards on these matters.

If you require any specific advice for your business, please do not hesitate to contact us by visiting our website at ondemandhr.com.au.

Firstly, for NSW businesses, this the first time that some form of “lockdown” has been required since the JobKeeper provisions contained under section 789 of the Fair Work Act were ended earlier this year.  The provisions that existed under Section 789 allowed greater flexibility for businesses to stand down employees without pay, and direct employees to take leave, but unfortunately those temporary powers don’t exist anymore.

This means that we need to look to alternative options.

Under Section 524 of the Fair Work Act, an employer can stand down their employees because of one of the following circumstances:

  • Industrial Action (other than industrial action organised or engaged in by the employer);
  • A break down of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown;

But most importantly

  • A stoppage of work for any cause for which the employer cannot reasonably be held responsible.

In this situation in NSW, it may be the case that employers could argue that the government restrictions such as the one imposed on the 25th of June 2021 could result in a “stoppage of work” which they are not “reasonably responsible”.  However, this is not going to apply in all situations in NSW, and the specific circumstances would need to be assessed on a case by case basis.

Two key things to consider is:

  • Is your business located in the 4 impacted LGA’s?
  • Is it impossible for all or some of your employees to work from home?

If you have answered yes to either or both of these questions, then it may be worth exploring if your business may be able to use the provisions of 524 of the Fair Work Act to stand down employees without pay.

The other key considerations for NSW businesses resulting from these restrictions are the included Schedules in Modern Awards which were introduced to provide businesses with additional flexibilities to deal with Covid-19.  For many awards, this introduced an additional leave type called Pandemic Leave to provide for up to 2 weeks of leave for employees that were required to self-isolate.  Based on our current interpretation of these clauses, we believe it is possible to use unpaid Pandemic leave in situations where employees are forced to remain at home as a result of these “stay at home” style orders.

As you are no doubt aware, these new restrictions and their implications are a rapidly evolving subject and the information we are providing is general in nature and does not constitute advice as every situation is different.  If you would like some advice regarding you options in your specific circumstances, please reach out to us at ondemandhr.com.au and we will be happy to help.

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