Directions to return to work & the workplace
Published 12 June 2020 | Updated 16 June 2020
Employers can direct employees to work their normal hours (except if they’re on approved leave) if the direction is reasonable.
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Health and safety
Creating a safe work environment is a legal requirement for employers. Employees and other workers also need to take care of their own and others’ safety.
Employees shouldn’t go to work if they have coronavirus symptoms and should notify their employer as soon as possible.
If an employee has symptoms of coronavirus, employers should:
- direct the employee not to work, or to work from home if the job can be done safely from home and the employee is well enough to work
- ask the employee to get urgent medical advice as recommended by the Department of Health.
There are limited circumstances in which employers can require their employees to be tested for coronavirus before returning to work.
Employees who completed a required quarantine period (for example, after travelling or because of close contact with a confirmed case) but didn’t develop symptoms, shouldn’t be asked to get tested for coronavirus before returning to the workplace.
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Directing employees to return to work or their workplace
Many states and territories continue to have rules about people working from home, if they can. Employers need to check and stay up-to-date with any enforceable government directions in their relevant state or territory about employees working from home or another location. Employers should follow any rules in their state or territory that say employees should be working from home, or should be allowed to work from home if it is practical.
Employers can give directions for employees to work their normal hours (except if they’re on approved leave) if the direction is reasonable. When making these directions, employers need to comply with their work health and safety and other legal obligations, as well as employees’ usual employment conditions.
Employers should continue exploring alternative working arrangements in their workplace, particularly while social distancing rules apply, such as supporting different types of work from home arrangements.
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Directing employees in the JobKeeper scheme to perform work
If an employee has been given a JobKeeper enabling stand down direction, their employer can lift it so that the employee can return to working their usual hours, or replace it with different stand down arrangements.
The normal rules about following directions to work apply, even when an employer is receiving JobKeeper payments for an employee. This means they can continue to direct their employees to work their normal hours of work (if they aren’t on authorised leave or absence). In directing employees to work, employers have to comply with work health and safety obligations and any applicable enforceable government directions, as well as the employee’s terms and conditions of employment.
An employee needs to be paid either the amount of the JobKeeper payment or their usual pay for any hours that the employee does work in each fortnight (including any payments for annual leave, long service leave or public holidays) – whichever is more.
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When employees refuse to return to work or their workplace
An employee can’t refuse an employer’s direction to perform work if the direction is reasonable and in line with their employer’s legal obligations.
In some circumstances, employees may be able to refuse to return to work because of a reasonable concern about their health and safety or another legitimate reason.
If an employee doesn’t comply with their employer’s reasonable direction to return to work or their usual workplace, their employer may take disciplinary action against them, which in some circumstances could include termination of employment. Employers need to make sure they comply with the general protections and unfair dismissal obligations in the Fair Work Act.
Employers and employees are encouraged to work together to manage the return to the workplace. If an employee has concerns about the safety of the workplace, they should raise their concerns with their employer as soon as possible. Employers should consider sharing information about any steps they’ve taken to ensure a safe workplace, to help manage employee concerns.
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Changes to duties when returning to work
As employees return to work, employers may need to make changes to their usual duties because they’re operating differently. Employers should check whether there are any rules about doing this in any applicable award, agreement or employment contract before making any changes.
Recent changes to some awards allow employers to direct employees to perform duties that are within their skill and competency. This includes if the duties aren’t part of an employee’s usual classification. See Temporary changes to workplace laws during coronavirus.
Employers who are part of JobKeeper scheme can also give eligible employees a JobKeeper enabling direction to perform any duties that are within their skill or competency, if the direction is reasonable. See Changing duties, location or days & times of work under the JobKeeper scheme.
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Alternative work arrangements when caring for a child
If an employee can’t return to the workplace because they need to care for a child whose school or childcare centre has closed, they should come to an arrangement with their employer.
This could include requesting to work from home or taking some form of leave, such as annual leave or long service leave. Normal leave application processes still apply.
Employees also have the option to request flexible work arrangements under certain circumstances. For more information, see Flexible working arrangements.
If an employee doesn't come to an arrangement to work from home with their employer, or doesn’t use paid leave, then they aren’t entitled to be paid (unless they are on JobKeeper).
Employees who need to care for a sick child can take carer’s leave (paid or unpaid). If a full-time or part-time employee has no paid carer’s leave left they can request to take unpaid carer’s leave. Unpaid carer’s leave is also available to casual employees, who are entitled to 2 days of leave per occasion.
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