Not-for-profit Law
Legal help for community organisations

The People Involved

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Employers have a duty to provide a safe and hazard-free workplace for their staff and volunteers. Safework Australia has published National COVID-19 safe workplace principles. The principles operate subject to the measures agreed and implemented by governments through the National Cabinet process.

As government restrictions ease in some parts of Australia and organisations make plans to transition workers back to the workplace, many organisations are asking whether they can or should ask volunteers to return to the workplace.

5 August 2020 - categories of people at increased risk of a serious COVID-19 infection

It has been particularly tricky for organisations to understand what to do if they have volunteers that fall into the categories that the government has declared to be at increased risk of a serious COVID-19 infection.

Due to changed government advice regarding workers considered to be at increased risk of a serious COVID-19 infection, we have updated our fact sheet on managing the return of volunteers to the workplace.

To see the updated categories of people that the Department of Health considers may be at increased risk of a serious COVID-19 infection, refer to the Department of Health website.

The fact sheet considers the following questions:

  • Who are the categories of people that may be at increased risk of a serious COVID-19 infection?
  • Can (and should) we ask volunteers to return to the workplace?
  • Can we ask our volunteers to tell our organisation if they fit into an ‘increased risk’ category?
  • Do we have any special obligations for handling this type of health information about volunteers?
  • How does our organisation decide whether to ask volunteers to return to the workplace?
  • Our organisation has undertaken a risk assessment, consulted with volunteers and we think we need to pause or change the volunteering model – is this OK?
  • How does our organisation know if the steps we are taking are ‘reasonable steps’ or that we are doing what is ‘reasonably practicable’?
  • Can we put a blanket policy in place that prevents specific volunteers from returning to the workplace?
  • If we ask a volunteer to stop volunteering with our organisation, could we be in breach of anti-discrimination laws?
  • Can we ask our volunteers for a medical clearance before allowing them to return to the workplace?
  • What happens if a volunteer contracts COVID-19 and is not covered by volunteer personal accident insurance? Could we be held liable (legally responsible)?
  • Can we ask our volunteers to sign a waiver to protect the organisation from liability in the event they contract COVID-19?
  • What should we do if a volunteer refuses to follow a COVID-safe plan or follow preventative measures?

Please contact us if you have a specific query about this.

29 July 2020 -  Employers must notify WorkSafe Victoria if an employee receives a positive COVID-19 diagnosis.  

From this date, Victorian organisations are required to notify WorkSafe immediately if an employee has a confirmed coronavirus diagnosis. This includes people who are self-employed and contractors who may have attended a worksite during their infectious period. The requirement will be in force for 12 months.

For more information on the new regulations visit WorkSafe Victoria's website which includes instructions on how to report a confirmed COVID-19 diagnosis

9 July 2020 - news for volunteers in Victoria

Eligible volunteers in Victoria have access to the COVID-19 Worker Support Payment. This is a one-off $1,500 payment to financially support Victorian workers who have been instructed to self-isolate or quarantine at home because they have either been diagnosed with COVID-19 or have been identified as a close contact of a confirmed case. For more information, see our news item.

We have answered many other questions on managing permanent and casual employees and volunteers during a crisis below.

Links to other useful resources are published at the bottom of this page.

Answers to your questions on managing permanent and casual employees and volunteers during a crisis:

  1. Our service relies on volunteers – can we ask them to continue to volunteer with us?
  2. Is it safe to have volunteers volunteering right now?
  3. What reasonable precautions can our organisation take to manage the safety of our workers (including volunteers)?
  4. Could we be held liable if we ask our volunteers to keep volunteering?
  5. Should we let volunteers work from home?
  6. If our workers (including volunteers) are working from home, do we need to conduct a safety inspection?
  7. How do we prepare for a volunteer workforce shortage?
  8. We are getting lots of interest from people who want to volunteer with us during the COVID-19 outbreak. How do we safely manage this?
  9. Should we have a policy that addresses volunteering in a COVID-19 environment?
  10. Can we ask employees to work from home?
  11. How do I make sure we’re meeting our work, health and safety requirements when my employees are working from home?
  12. Some of our employees now need to care for children at home. Are we obliged to make reasonable adjustments to their work?
  13. I don't think my employees are actually doing any work from home. How do I deal with performance management in this context?
  14. What do I do if employees refuse to come into work?
  15. We are a community group providing essential front-line services, could we be held liable if an employee is infected with COVID-19 in the course of their employment?
  16. If an employee contracts COVID-19, will this be covered by workers’ compensation?
  17. How do I manage my employees’ absences and leave entitlements in a time of crisis?
  18. Must employees use their annual leave if they can’t work from home?
  19. Can employees be made to take personal leave?
  20. What if an employee is a carer for someone who is unwell?
  21. Can we force employees to use long service leave if we have to shut down?
  22. Can I stand down employees if there is no useful work for them to do?
  23. What if I have to cancel casual employee shifts because of a COVID-19 outbreak?
  24. Our income has reduced because of COVID-19 and we are looking at reducing hours of paid staff. Can we ask volunteers to perform the work of our paid staff instead?
  25. The demand on our services has increased because of COVID-19. Are we allowed to ask our paid staff to volunteer extra hours to meet service demand?
  26. How do we plan our return to work?
  27. What work health and safety issues should we think about when planning our return to work?

1. Our service relies on volunteers – can we ask them to continue to volunteer with us?

State and territory public health guidelines and orders set out restrictions on gatherings and movement. Some of these address volunteers directly. As each state and territory’s social distancing restrictions change, you need to make sure your volunteers can return to, or continue, volunteering with your organisation.

You can check the latest guidelines through the relevant state and territory links below.

ACT - ACT Public Health Emergency Directions

NSW - NSW Public Health Orders

NT - NT Chief Health Officer Directions

Qld - Qld Chief Health Officer Public Health Directions

SA - SA Emergency Management Directions

Tas - Tas Directions and Notices

Vic - Vic Chief Health Officer Directions

WA - WA Directions

Remember –  volunteers don’t have a  legal obligation to attend the workplace, or to continue to volunteer for your organisation. Check in with your volunteers regularly and ask if they feel comfortable continuing to volunteer. You can find more information about the nature of the volunteering relationship in Part 2 of our National Volunteer Guide  

Organisations who engage court ordered volunteers, or mutual obligation volunteers should speak to their government contact about the best steps to take.

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2. Is it safe to have volunteers volunteering right now?

The measures you can take to reduce the impact of the spread of COVID-19 are changing rapidly, and will continue to change as we transition out of lock down. To properly assess the risk to your organisation, your volunteers and the people your volunteers are interacting with, it’s important to closely monitor and comply with the latest information and guidelines provided by the Australian Department of Health and your state or territory health department.

The risk to your volunteers will also vary depending on your organisation and the industry in which your organisation operates. As the situation continues to evolve rapidly, we recommend organisations conduct risk assessments as frequently as possible.

While COVID-19 is prevalent, community organisations must consider the 'two sides to safety’ – that is, both the safety of the volunteer, as well as the safety of the people that the volunteer is interacting with, such as clients, employees, other volunteers and members of the public.

You can find more information about the nature of the volunteering relationship in Part 3 of our National Volunteer Guide

Managing the safety of the volunteer

Community organisations’ responsibilities to their volunteers are set out in common and statutory law. Organisations have a responsibility to ensure the health and safety of their volunteers to the extent reasonably possible and they owe a duty of care to their volunteers. COVID-19 can be regarded as a foreseeable risk from which community groups are required to take reasonable steps to protect volunteers.

Managing the safety of the people your volunteer is interacting with

Community organisations have a responsibility to take reasonable precautions to ensure the safety of people interacting with their volunteers. In each Australian jurisdiction, legislation sets out special protection for volunteers from personal liability for anything done, or not done, in good faith when performing community work for a community organisation. Accordingly, where a volunteer exposes another person, such as a client or service-user, to infection or harm, your organisation may be responsible.

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3. What reasonable precautions can our organisation take to manage the safety of our workers (including volunteers)?

The reasonable precautions you can take depend on a number of factors (some dynamic) including:

  • the nature of your staff’s responsibilities
  • the size and resources of the organisation
  •  the nature of the workplace, particular vulnerabilities of your staff
  • particular vulnerabilities of your service-users
  • the current information about COVID-19, and
  • the guidelines and directions issued by government

 Your community organisation may consider taking the following reasonable precautions:

  • Develop a risk management plan - a risk management plan provides evidence of your consideration of safety laws, foreseeable risks and necessary reasonable action to ensure the safety of your employees, volunteers and service-users.
  • Keep abreast of, and comply with, the guidelines and recommendation of the Australian Department of Health and your state or territory health department.
  • Develop a pandemic or infectious diseases plan that is consistent with the Australian Department of Health and your state or territory health department information. You may want to create a 'COVID-19 taskforce' or appoint a ‘COVID-19 risk manager’ who is responsible for keeping up to date with the changes (see below for more information about a policy and appointing a risk manager).
  • Consider what information you need to provide to workers - What and how will you communicate with workers about their obligation to self-isolate and report to you a possible or likely risk of infection? What will you tell them if someone in their workplace has contracted, or is suspected of contracting the virus? Be mindful of privacy considerations.
  • Review any existing control measures in place and test whether they remain effective. Consider having multiple controls in place, such as increased social distancing measures, increased cleaning services, increased personal protective equipment (PPE) training for employees and volunteers, suspension or cancellation of certain activities or reducing the number of employees, volunteers and service-users in the same location. Ask: ‘is it essential for all of these people to be present?’
  • Consider flexible working arrangements - In certain circumstances workers may be able to perform their responsibilities from a flexible or remote location. Subject to health, safety and risk considerations, this may be a reasonable precaution. See ‘Should we let volunteers work from home’ below for more information. Staff should only work or volunteer from home where this is reasonably practical (or to, at least, reduce their hours in the workplace). Only retain essential personnel in the workplace.
  • Where necessary, cancel volunteers’ shifts - if such a precaution is necessary, your communication should be clear and include all necessary information about further support your volunteers can receive. Service-users and other organisations may also need to be made aware of this precaution.
  • Encourage all workers, including volunteers, to monitor their health and self-report if they believe they are presenting with symptoms, have been exposed to a suspected or confirmed case of COVID-19, or are a suspected or confirmed case of COVID-19. Organisations should also monitor signs of illness and, if shown, encourage workers to seek medical attention.
  • Ask your workers to get a medical clearance before returning to the workplace - this should be asked of those workers in an ‘at risk’ category or who chose to self-isolate (for example, if they travelled overseas or were in close or regular contact with a person returning from overseas or who was diagnosed with COVID-19).
The COVIDSafe app

Encouraging your workers to download the COVIDSafe app may be a reasonable precaution to ensure the health and safety of your workers and service users. However, you can’t require your employees or volunteers to download the COVIDSafe app, or exclude them from participating in your organisation for not doing so. Such action is expressly prohibited under Commonwealth law.

Justice Connect member law firm, Hall and Wilcox has provided guidance on this.

​Our Community has published a template crisis policy. You can download a copy of this policy and edit it to meet your organisation's needs.

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4. Could we be held liable if we ask our volunteers to keep volunteering?

An organisation could be held liable in certain circumstances. Organisations have safety obligations under the common law (judge made law) of negligence, under the negligence provisions in state and territory legislation and in many circumstances under work health and safety (otherwise known as occupational health and safety, or occupational safety and health) laws.

To work out how these ‘safety’ laws apply to your organisations, read Part 3 of our National Volunteer Guide  

Under these laws all organisations are required to take action to manage the risk of COVID-19 to workers (including volunteers) and others in the work environment. The outbreak of COVID-19 can be regarded as a foreseeable risk from which community groups are required to take reasonable steps to protect volunteers, and the people the volunteers interact with.

Organisations must comply with national and state or territory public health directions about COVID-19. If your organisation fails to comply with a direction issued by your state or territory government or the federal government in relation to, for example, refusing to allow your workers or volunteers to stop work where directed to by the government, your organisation could face legal consequences. Following these steps should mean there is a relatively low risk of your organisation being found to be liable (for example, in negligence) for any injury, loss or damage suffered by a volunteer as a consequence of COVID-19.

Organisations will need to balance the risk to health and safety against the critical services your organisation provides carefully.

Volunteers may fall into the ‘pandemic insurance gap’. Generally speaking, volunteers are not covered by workers compensation insurance, and are unlikely to be covered by volunteer personal accident insurance in these circumstances. If your organisation has volunteer personal accident insurance, check with your broker about what is and what is not covered, including asking volunteers to work remotely. Also read our COVID-19 resources on insurance.

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5. Should we let volunteers work from home?

It depends. Allowing volunteers to work from home may not be sensible in all situations. If your volunteers require high levels of supervision (for example, engaging with difficult or challenging clients), your organisation may need to consider whether it’s appropriate to ask your volunteers to work remotely. Remember, you have a duty of care to ensure the safety (physical and psychological) of your volunteers and clients, and this can be difficult to monitor if your volunteers are working remotely.

If it’s safe to have your volunteers volunteer remotely, make sure they have the necessary equipment, training, and a safe environment in which to work.

Consider what measures your organisation can put in place to support volunteers. This could include, for example, conducting meetings via video-conferencing and sending work to be reviewed by email.
If any of your volunteers have a confirmed or suspected case of COVID-19, or have been exposed to a confirmed or suspected case, your organisation should encourage them to self-isolate for the recommended number of days for the health and safety of your other volunteers, employees and clients.

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6. If our workers (including volunteers) are working from home, do we need to conduct a safety inspection?

Ordinarily, it would be ideal to have an appropriate person conduct a risk assessment onsite at the worker’s proposed premises of remote working. However, this can be difficult in the current environment.
Instead, we recommend providing a checklist or questionnaire for your worker to complete themselves. This checklist or questionnaire could address elements such as the placement and height of chairs relative to desks, the angle of monitor screens or laptops, and the surrounding environment generally.

If a volunteer or employee requests that your organisation conduct a physical inspection of the premises where they propose to work, consider whether this request is practicable for your organisation. When considering the request, make sure that conducting a physical inspection won’t expose another worker to COVID-19 (for example, if the worker conducts an inspection at premises where there is a suspected or confirmed case of COVID-19).

With the easing of social restrictions, as some workers return to the workplace (see ‘How do we plan our return to work?’), it’s important to support your workers that continue to work or volunteer from home. Addressing mental health issues in a remote working environment is an important part of your WHS duties. Even if a safety inspection is not practicable, you should review your staff’s working from home arrangements regularly.

SafeWork Australia’s Working from home - Workstation Setup Guide, and its resource on managing Mental Health of your staff may be helpful resources to share with your workers.

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7. How do we prepare for a volunteer workforce shortage?

It’s important to consider and identify which functions of your organisation are critical, and which require volunteer assistance to operate smoothly. You can explore options like:
  • changing roster arrangements to ensure adequate coverage of your organisation’s essential functions, or
  • letting employees and volunteers know that you may require their adaptability and flexibility in the upcoming months while your organisation manages the COVID-19 pandemic
Equally, as social restrictions ease, community organisations may see existing or new volunteers return to the organisation. Organisations should consider whether they have processes in place to appropriately recruit and manage new volunteers.
 
You can find more information about recruiting and managing volunteers in Part 5 of our National Volunteer Guide

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8. We are getting lots of interest from people who want to volunteer with us during the COVID-19 outbreak. How do we safely manage this?

If your organisation wants to recruit new volunteers, it should be able to do this if risks are managed carefully. Regardless of the current situation, organisations still have legal obligations to recruit and induct volunteers.

Your organisation could consider reviewing existing recruitment processes to minimise face-to-face contact. For example, your organisation could request applications by email only, and conduct interviews via telephone calls or video-conferencing. Consider moving any onboarding and training processes online. Also consider, for any roles likely to require physical proximity, whether medical clearance should be required as a condition to accepting any applicant.

For more information, read our Part 5 of our National Volunteer Guide  

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9. Should we have a policy that addresses volunteering in a COVID-19 environment?  

If possible, organisations should consider:
  • implementing a Pandemic or Infectious Diseases Plan that is consistent with Australian Department of Health and your state or territory health department information, or
  • adapting an existing risk management plan that takes into account COVID-19 (or similar situations)
It’s important that senior members of your organisation are aware of this plan and their associated responsibilities.
 
Given the rapid evolution of the COVID-19 situation and depending on your circumstances, a specific COVID-19 policy may not be prudent nor effective. However, your organisation could consider other options. For example, if it’s practical, you could appoint a COVID-19 risk manager to be responsible for:
  • monitoring changes and informing senior staff members, and
  • being a point of contact for volunteers (and employees) who are concerned, have any questions or wish to report that they have been diagnosed with, or exposed to, COVID-19
This person could also be responsible for informing volunteers (and staff more generally) of your organisation's response, the measures your organisation has implemented, and how your organisation is managing risk, reputation, workplace culture, mental health and morale impacts in the face of unique, rapidly changing circumstances.
 
As part of your plan to return to work (see ‘How do we plan our return to work?’), you may need to review existing policies, or develop new ones. 
 
Consider whether your current policies appropriately address arrangements to foster safe flexible work, mental health and WHS practices as part of your organisation’s return to work plan. These policies should address these issues for all of your workers, including your volunteers.

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10. Can we ask employees to work from home?

Yes, if an employee is capable of performing their duties from home, or reasonable alternative duties, an employer can direct them to work from home to comply with isolation or quarantine requirements related to COVID-19 (example below). If a casual employee can’t work from home, you may need to consider cancelling their shift (more on casual employees below).

What are reasonable alternative duties depends on the employee’s role, their capabilities and their seniority (among other factors). You will also need to check for any relevant terms in the employee’s employment contract or enterprise agreement about giving an employee alternative duties.

Even as social restrictions ease, governments are encouraging those that can work from home to continue working from home. As your organisation plans its return to work (see ‘How do we plan our return to work?’), consider which employees are capable of performing their duties, or reasonable alternative duties, from home.

Example

Martin works as a fulltime administration assistant at a community organisation. As a result of COVID-19, Martin’s employer directs him to work from home. Martin’s workload has not decreased as a result of COVID-19 and he can safely perform his tasks from home. Martin tells his manager that he would prefer to receive the JobKeeper payment on reduced hours rather than conduct his ordinary fulltime responsibilities. Martin’s manager refuses his request and tells him that, because he can perform his ordinary responsibilities safely from home, he must maintain his ordinary hours and responsibilities. Martin’s employer is not obliged to make JobKeeper payments to Martin in these circumstances and is allowed to direct Martin to work from home. Martin may be able to access accrued leave or discuss changing his position if he wants to reduce his work responsibilities.

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11. How do I make sure we’re meeting our work, health and safety requirements when my employees are working from home?

An employer’s WHS duty to ensure, as far as is reasonably practicable, the health and safety of workers, continues to apply when employees are working from home.

You can minimise the risk of breaching this duty by:

  • giving employees guidelines or a checklist on how to set up a safe home work environment (covering, for example, ergonomic work station set up and location, and using power cords safely)
  • having daily communication with employees and checking in with them regularly
  • if applicable, reminding employees they have access to an employee assistance program
  • suggesting ways for employees to stay connected with their team members and other employees (for example, virtual team morning teas or daily quick check ins)
  • reminding employees how they can access IT support when needed
  • appointing a contact person in the organisation who employees can talk to about concerns
  • providing wellbeing tips, to help employees keep their minds and bodies healthy
  • providing information on how to work effectively and productively from home

Normally, before an employee begins to work from home, the employer would likely conduct a physical inspection of the home office set up to make sure it’s safe. In the current environment, this isn’t possible. So, providing the employee with a checklist and guidelines on how to do this is very important, particularly for employees who are not used to working from home.

SafeWork Australia’s Working from home - Workstation Setup Guide, and its resource on managing Mental Health of your staff may be helpful resources to share with your staff.

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12. Some of our employees now need to care for children at home. Are we obliged to make reasonable adjustments to their work?

If employees can still perform their required duties, with their children at home, employers should support the employee and they should continue to receive their normal salary.

If employees aren’t able to perform their regular duties from home because of child caring responsibilities, the employer is not obliged to make any adjustments to their work or hours of work. It’s the employee’s responsibility to put appropriate child care arrangements in place.

But employers may choose to reach an agreement with the employee to work less hours or work their hours at different times of the day or week. However, any agreement will need to be in accordance with the terms of an applicable Modern Award or enterprise agreement. For example, if you allow evening work, you need to make sure this doesn’t result in an underpayment issue (as the employee might be entitled to receive penalty rates for working those hours). A variation to the employment contract may be required to facilitate the change in hours.

However, if the employee has to take on unexpected child care responsibilities, for example their child’s school or child care centre closes with little or no notice, the employee would likely be able to access paid carer’s leave for a short period on the basis that this amounted to an ‘unexpected emergency’. But, where the employee received at least 2 weeks’ notice of the pending closure, or where the closure is for a lengthy or indefinite period, it will not be, or continue to be, an ‘unexpected emergency’. After this, it would be at the employer’s discretion whether the employee continues to receive paid carer’s leave.

As childcare facilities and schools re-open, you should review any arrangements that were put in place to support staff’s childcare commitments. If interim arrangements are no longer required, or are no longer suitable, they should be revised.

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13. I don't think my employees are actually doing any work from home. How do I deal with performance management in this context?

Effective performance management is still essential even when employees are working from home, and you should follow any performance management policies that are already in place.

An employee’s performance when working from home can be managed effectively by setting up clear expectations and lines of communication. This may include daily catch-ups with employees to check in to see if they are actually doing work from home and setting clear priorities and timelines to complete work.

You could also implement a time sheet system – each day employees list the tasks they worked on and how long they spent on each task. However, timesheets may send a message about lack of trust, so think carefully about using this strategy. If you do start a timesheet system, unless it’s absolutely necessary, don’t only apply it to some employees.

Employers should also be mindful that not all tasks that an employee performed in the office may be easily transferrable to the home. Any modifications to duties should be discussed and clearly communicated – for example: ‘as you can no longer do X, I want you to focus on Y, and here is what that involves’.

Further, a task that might have taken two hours to complete in the workplace might take four hours at home. This should be taken into account in assessing an employee’s performance.

It’s also important to make sure that the employee has the necessary tools to perform their work from home, such as IT capabilities.

It may also be necessary to discuss changing an employee’s hours if they have child caring obligations during the day which prevent them from working during standard business hours (see above).

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14. What do I do if employees refuse to come into work?

Managing your employees’ concerns about returning to work appropriately at the outset is the best way to avoid employees refusing to come into the workplace. 
 
Reasons why employees may be reluctant to come into work may include:
  • concerns about getting to work
  • concerns about the hygiene and safety of the physical work environment
  • childcare responsibilities
  • living with a person who is particularly vulnerable to COVID-19
  • mental health concerns
  • health advice 
Consulting with your employees about their concerns is a part of your WHS duties. You may also need to manage employees’ reasonable concerns in your plan to return to work. But remember – even as social restrictions ease, governments are encouraging workers that can work from home to continue working from home. As your organisation plans its return to work (see ‘How do we plan our return to work?’), consider which employees are capable of performing their duties from home.
 
For organisations that require staff to be physically present (such as essential services with front line workers), organisations need to consider the basis on which its employee refuses to return to work. Where an employee has no reasonable basis to refuse to attend work, any absence would need to be by agreement with the employer. For example, the employer may allow the employee to work from home (if this is practicable), use their annual leave, or grant the employee a period of unpaid leave.
 
If the employee simply refuses to attend work without a reasonable basis, and without the employer’s agreement, the employer may need to advise the employee that a failure to attend work is a breach of their contract of employment, which may lead to disciplinary action, including termination of employment.

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15. We are a community group providing essential front-line services, could we be held liable if an employee is infected with COVID-19 in the course of their employment?

This is possible, but, in the absence of negligence on the part of the employer, liability is unlikely.

The primary common law liability risk for employers will be alleged negligence for breaching your duty of care. An employer may only be liable if it failed to protect an employee by taking reasonable steps to prevent their exposure to the virus.

Failure to take reasonable precaution may include:

  • not acting quickly enough to send an infected employee home
  • not permitting the employee to work from home when this was reasonably practical and there was a heightened risk of infection in the workplace
  • not providing employees with appropriate personal protective equipment, or
  • not implementing appropriate and reasonable safety-related protocols such as providing hand sanitiser and observing social distancing where reasonably practical

Employers are also under obligations at a state and territory level to comply with work, health and safety laws. A failure to take reasonable steps in response to COVID-19, may also amount to a breach of the employer’s statutory duty of care to provide a safe workplace.

For these reasons, all employers must have a multi-pronged COVID-19 response plan in place that is under constant review, and regularly updated and communicated to all workers as the COVID-19 outbreak develops.

The COVIDSafe app

Encouraging your staff to download the COVIDSafe app may be a reasonable precaution to ensure the health and safety of your staff and service users. However, organisations can’t require its employees or volunteers to download the COVIDSafe app, or exclude them from participating in your organisation if they haven’t downloaded the app. Such action is expressly prohibited under Commonwealth law.

Justice Connect member law firm, Hall and Wilcox has provided guidance on this.

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16. If an employee contracts COVID-19, will this be covered by workers’ compensation?

Probably not, but it’s a possibility if an employer unreasonably failed to minimise the risk of an employee’s exposure to the virus or knowingly placed the employee at a greater risk of contracting the virus.

As a general rule, the workers’ compensation insurer would need to be satisfied that the virus was contracted in the course of the employee’s employment and that the employment ‘significantly contributed’ to the employee contracting the virus. In other words, the workplace must be more than just the location where symptoms first presented.

It can be difficult to accurately determine the exact time and place of contracting a virus. This means it may be difficult to determine that the employment significantly contributed to the virus.

However, where an employee’s employment put them at greater risk of contracting the virus, the significant contribution test may be easier to meet - for example, if the employer required the employee to interact with people who had contracted the virus. For this reason, health care workers would likely have a stronger basis to claim their contraction of the virus was work-related.

Each claim would need to be considered on its individual merits, having regard to the individual circumstances and evidence in relation to the claim. Also, read our COVID-19 resources on insurance.

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17. How do I manage my employees’ absences and leave entitlements in a time of crisis?

If you haven’t already done so, prepare a policy for managing coronavirus-related staff absences. Your policy should cover the scenarios you may face, such as:
  • an employee infected with COVID-19
  • an employee caring for someone infected with COVID-19
  • an employee required to care for another who is not infected (for example, children)
  • an employee required to self-isolate because they have travelled to a country with cases or has been in contact with someone who has or may have been infected with COVID-19

We have prepared a fact sheet that considers an employee's leave entitlements in these scenarios.

This fact sheet is based on an article prepared by Maddocks and published on their website.

Changes to modern awards

As a result of COVID-19, 99 Modern Awards have been varied by the Fair Work Commission. 

These changes mean that employees who are covered by these awards are entitled two weeks of unpaid pandemic leave. Covered employees may also be entitled to take twice as much annual leave on half pay (ie an employee takes 2 weeks’ annual leave but is paid for only 1 week).

These changes operate from 8 April to 30 June 2020. 

The Fair Work Ombudsman and Justice Connect member law firm, Lander & Rogers explain these changes.

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18. Must employees use their annual leave if they can’t work from home?

Under the law, leave is framed as an entitlement that employees receive, and employers don’t usually have much power to direct how employees take leave.

Normally, an employee asks for leave under the process set out in their contract of employment, the company policy, or the applicable modern award or enterprise agreement and the employer can only refuse the employee's request if it’s reasonable to do so. Recent changes to the annual leave provisions in most of Australia’s modern awards (above) may also be relevant.

In certain circumstances, employers can compel employees to use annual leave. Subject to meeting the requirements in the Fair Work Act 2009 (Fair Work Act) and any applicable enterprise agreement, an employee can be directed to take annual leave:

  • during a period when the employer is temporarily shutting down or closing its operations or workplace. Employers usually rely on this during the Christmas and New Year period, or
  • when an employee has an excessive amount of accrued annual leave (generally, more than 8 weeks)

If an employer shuts down the whole or a part of its operations due to COVID-19, the employer may be able to direct employees to take annual leave. Employers may have this right under an enterprise agreement, but the enterprise agreement may place restrictions on this right.

For employees not covered by an enterprise agreement or award, the employer may direct the employee to take annual leave only if the direction is reasonable. In most circumstances, it will be reasonable to require employees to use annual leave where the organisation has been forced to shut down as a result of COVID-19.

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19. Can employees be made to take personal leave?

If an employee is unwell, their employer should tell them not to attend work, and if necessary, see a doctor. The employee will be entitled to paid personal leave. If the employee doesn’t accrue personal leave (for example, if they are a casual) or doesn’t have enough personal leave to use, the employer should consider a special leave arrangement or discuss other leave arrangements, including unpaid leave.

In most circumstances, an employer can’t direct an employee to use personal leave if they aren’t sick. Personal leave is available to the employee when they are not fit for work due to a personal illness or injury (and carer’s leave is for when they need to care for or support someone who is ill or injured or who requires care or support due to an unexpected emergency).

If the employer has told the employee not to come to work as a precautionary measure, where the employee has not been diagnosed with any illness and is not showing symptoms, they can’t be forced to use their personal leave.

But, if an employer reasonably suspects an employee is unwell, they can direct the employee to have a medical examination and provide medical clearance before they return to work. This is part of an employer’s work health and safety responsibilities. But risks can arise if the employer’s direction is not reasonable (for example, if there is no sound basis for the suspicion).

As a result of COVID-19, 99 Modern Awards have been varied by the Fair Work Commission. These changes mean that employees who are covered by these awards are entitled two weeks of unpaid pandemic leave. This may also be a suitable leave option.

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20.What if an employee is a carer for someone who is unwell?

If an employee is a carer for someone who is unwell, they should take carer’s leave. Carer's leave comes out of the employee's personal leave balance. If the employee doesn't accrue personal leave (for example, if they are a casual) or doesn’t have enough personal leave, the employer should consider a special leave arrangement or discuss other leave arrangements, including unpaid leave.

All employees, including casual employees, are entitled to 2 days of unpaid carer’s leave on each occasion they need to care for an unwell member of their family or household. Employees may also be entitled to take unpaid pandemic leave pursuant to recent changes to most of Australia’s modern awards (above).

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21. Can we force employees to use long service leave if we have to shut down?

Generally, no. You can advise employees that they may access their long service leave entitlements if they wish to, however, the conditions on which employees can take this leave is subject to the relevant state or territory long service leave legislation. For example, the employee may be required to take a minimum period of long service leave or give a minimum period of notice to the employer.

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22. Can I stand down employees if there is no useful work for them to do?

A stand down isn't the same as a shutdown. Stand downs should only be used by an employer as a last resort because the bar for lawfully standing down employees without pay is very high. Essentially, a stand down will only become an option when the employee cannot be usefully employed.

Where flexible arrangements aren’t an option, the Fair Work Act allows an employer to stand down employees without pay during a period in which they cannot be usefully employed because of:

  • industrial action
  • a breakdown of machinery or equipment if the employer can’t reasonably be held responsible for the breakdown, or
  • a stoppage of work for any cause for which the employer can’t reasonably be held responsible.

Directing an employee who isn’t unwell not to attend work because of concerns about COVID-19 doesn’t meet stand down criteria (it’s not for a cause for which the employer can’t reasonably be held responsible).

However, there may be some circumstances where the stoppage of work by an employee due to COVID-19 is for a reason for which the employer can’t reasonably be held responsible. For example, if employees can’t perform their duties due to a quarantine ban on them entering a client or customer’s workplace.

The income-depriving consequences of a stand down is severe for employees and can expose the employer to liability for breach of contract and breach of the Fair Work Act. The JobKeeper scheme may also be an option for eligible organisations and employees. For this reason, stand downs should only take place in accordance with specific legal advice.

Finally, even if the legal criteria for a stand down without pay are met, the employer should still ask: ‘should I do this and, if so, for how long?’

Employers should refer to the Fair Work Ombudsman’s resources on an employer’s obligations to employees who have been stood down.

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23. What if I have to cancel casual employee shifts because of a COVID-19 outbreak?

In most cases, employers can cancel a casual employee’s shift, or even end their employment, for any reason with very little notice. This is because, unlike for permanent employees, employers are not under a legal obligation to make sure casual employees receive regular shifts.

However, there are compelling reasons why employers shouldn’t rush to cancel casual employees’ shifts, or not pay them, including:

  • Employees who have worked for one employer on a casual basis for over 1 year may be regarded as a long term casual employee. Long term casual employees who have a reasonable expectation to continue their employment with you are entitled to ask for flexible work arrangements and there may be good reason to consider this option (see below).
  • It’s unlawful to cancel a casual employee’s shifts for a discriminatory reason. A valid reason to cancel a casual employee’s shift is to ensure the health and safety of staff or service users. Cancelling a casual employee’s shift because you suspect, without any proper evidence, that the employee is more likely to spread COVID-19 because of their cultural background is not a valid reason.
  • Some organisations are paying casual employees even if their shifts are cancelled. This is because, if a casual employee is not guaranteed any income if they don’t work, they may be less likely to be honest with their employer about feeling unwell. Recognising this, some organisations are making discretionary leave payments to casuals to encourage them to stay home if they aren’t feeling well, without compromising their pay. This may also be done to encourage the casual employee to want to continue working for the employer.
  • As disruptive as COVID-19 is, organisations should do their best to adapt and persevere through these difficult months. As part of this, many organisations are encouraging employees, including casuals, to work from home. Casual employees may be able to perform their same responsibilities, or even different and more pressing tasks, from home. Adapting in this way may be beneficial for both the employee and the organisation.

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24. Our income has reduced because of COVID-19 and we are looking at reducing hours of paid staff. Can we ask volunteers to perform the work of our paid staff instead?

Many organisations are facing a reduction or a potential reduction in income because of COVID-19.  This is prompting organisations to consider whether they can maintain the current level of service delivery or the current level of employee hours. Some organisations are querying whether they are legally allowed to replace paid staff with volunteers in order to continue the current level of service delivery.
 
Whether your organisation can lawfully substitute volunteers for paid staff will depend on the reason why the paid employees' hours were reduced. This should be approached with caution; it's a complicated topic and we strongly recommend that your organisation seek legal advice. We also encourage organisations to treat volunteer positions with respect and in accordance with Volunteering Australia’s National Standards for Volunteer Involvement
Reason 1: You have reduced your paid staff hours under a JobKeeper enabling stand down direction 
If your organisation has qualified for JobKeeper, your organisation may have also made the decision to reduce employee hours or days of work by way of a JobKeeper enabling stand down direction (which provides increased flexibility around standing down employees by measures such as reducing their ordinary hours or days of work). 
It will not be lawful to replace paid staff with volunteers if the reason for reducing the employees' hours was the availability of, or the wish to introduce, volunteers to do the work instead.  This is because employees can only be lawfully stood down under JobKeeper arrangements if the employees could not be usefully employed as normal due to matters attributable to COVID-19 or government initiatives to slow its transmission.
If however, you reduced an employees’ hours in line with JobKeeper arrangements and subsequently identified that volunteers could temporarily assist by volunteering additional hours to keep up with service demand, then this might be lawful. 
If this is the case, it is important to clear with your employees that: 
  • the reasons for the reduced hours are directly related to COVID-19 government initiatives (and have evidence to support this), not a desire to have volunteers do the work instead
  • volunteers are assisting as a temporary measure to help the organisation manage during the current crisis and to ensure service continuity, and
  • you will revisit this arrangement as soon as the Job Keeper arrangements end (currently 28 September 2020).  
This approach will help reduce the risk of legal claims against the organisation such as adverse action claims under Part 3-1, General Protections of the Fair Work Act 2009 (Cth).
Reason 2: You have reduced your paid staff hours under an award or by agreement 
If, your organisation intends to reduce hours of paid employees by agreement, or your organisation has the power to reduce the hours of your employees without employee agreement (this power may be derived from the employment agreement or an applicable award for example), then it would likely be lawful for volunteers to temporarily perform the work previously performed by paid employees. 
If this is the case, it is important to clear with your employees that:
  • the reasons for the reduced hours are directly related to COVID-19 government initiatives (and have evidence to support this), not a desire to have volunteers do the work instead
  • volunteers are assisting as a temporary measure to help the organisation manage during the current crisis and to ensure service continuity , and
  • you will revisit this arrangement in the near future
This approach will help reduce the risk of legal claims against the organisation such as adverse action claims under Part 3-1, General Protections of the Fair Work Act 2009 (Cth).
We have set out two scenarios below to show the potential risk exposure from different responses to economic pressure. 
 
Scenario 1
An organisation is under economic pressure and considers ways to cut costs. The organisation identifies certain employees who have significant entitlements under a modern award (or enterprise agreement or policy) that are costly to the organisation. The organisation decides to dismiss those employees and use volunteers to perform the same roles in substance and title that those employees were previously performing.
This direct substitution is a high-risk manoeuvre. Both the process of selecting employees to substitute by identifying employees who have generous entitlements, and the choice to directly substitute those employees with volunteers performing identical roles exposes the organisation to the risk of a legal claim such as adverse action claims under Part 3-1, General Protections of the Fair Work Act 2009 (Cth).
 
Scenario 2
An organisation is under economic pressure and will be the subject of a funding cut of 20% for the next financial year. In preparation, the organisation assesses the measures it will take, bearing in mind that demand for the organisation's services is forecasted to increase. The organisation determines to reduce its costs across the board, including wages. It retrenches some employees and doesn’t renew some fixed employment contracts. To address the anticipated increased demand in services, the organisation decides to expand its volunteer workforce. The organisation restructures its operations. As a result, new roles are created. The volunteers brought in don’t perform the same roles as those previously performed by paid employees. The organisation also introduces new volunteer positions with different role titles and role descriptions.
By not selecting employees due to their entitlements under a policy or industrial instrument and by restructuring positions to avoid a simplistic substitution approach, Scenario 2 carries a lower risk than Scenario 1 of exposure to claims under Part 3-1, General Protections of the Fair Work Act 2009 (Cth).
 

25. The demand on our services has increased because of COVID-19. Are we allowed to ask our paid staff to volunteer extra hours to meet service demand?

It’s possible, but not recommended to ask your employees to volunteer to work additional hours without pay. There is a risk that it may be difficult to distinguish between an individual's paid work and unpaid voluntary work. This puts your organisation at risk of legal claims such as claims for underpayment of wages and other employee entitlements.

If you organisation decides to implement or allow this practice, your organisation would need to be confident it could reduce these risks to manageable levels. For example, as a bare minimum, you would likely need a separate written agreement with each individual employee dealing with the voluntary arrangement, specifying relevant matters such as what the voluntary work involves and when it is to be done. You would also need a system in place such as a time or attendance recording system that allows your organisation to confirm when an employee is doing voluntary work and that it can be clearly distinguished from their paid work. We also strongly recommend that the work performed as an employee is kept completely separate, and looks completely different to the work performed as a volunteer.

Alternatively, or in addition, while logistically difficult, it’s still possible to recruit new volunteers in this climate. But you must ensure the recruitment process complies with applicable State and Federal Government directions and public health orders. Introducing new volunteers to your workforce may alleviate some of the challenges your organisation is currently facing.

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26. How do we plan our return to work?

This question is relevant for all workers (paid and unpaid). 
 
SafeWork Australia has published information to support organisations plan their return to work. We recommend you review these resources.
 
Your return to work plan should be a carefully staged process:
  • Think about the size of your workforce and how many people are likely to be returning to the physical work environment. Considering your physical work environment (see ‘What WHS issues should we think about when planning our return to work?’), work out how many of your workers could reasonably return to your premises. 
  • Conduct a risk assessment using our Risk Management Guide. Assess the risks associated with your workers returning to your physical environment. Among other things, your assessment must factor in your physical premises, your workers’ roles and their interactions with your clients. 
  • Determine how to manage interactions with stakeholders external to your organisation.
  • Consult and communicate with your workers. Understanding the concerns of your workers, and taking precautions to manage these concerns is an important part of your legal duties. Tell your workers about the safety measures you are taking to ensure their health and safety as part of their return to work.
  • Consider your hygiene and cleaning practices. Use applicable SafeWork Australia resources on cleaning to prepare the physical environment. Access to hand sanitiser and PPE is only a small part of preparing your physical environment. 
  • Review and prepare your policies. Consider whether your current policies appropriately address arrangements in place to foster safe flexible work, mental health and WHS practices.

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27. What work health and safety issues should we think about when planning our return to work?

This question is relevant for all workers (paid and unpaid).
 
There are many parts to an organisation's WHS duties, particularly as it prepares its workforce to return to work. 
 
Remember that governments are encouraging workers that can work from home to continue working from home. As your organisation plans its return to work, consider which workers are capable of performing their duties, or reasonable alternative duties, from home. 
 
There are a number of factors that influence how to appropriately bring workers back to the physical work environment. It’s possible that a measure to promote the health and safety of your workers as they return to work (such as staggered start times) may produce other unintended health and safety risks (such as workers using public transport late at night). 
 
Your organisation may want to form a suitably qualified committee to guide the organisation through these questions. Where necessary, you may also need to seek expert advice.
Checklist – factors to consider in your return to work plan
The physical space
  • How can the space be arranged in a way to keep 1.5 metres between workers?
  • What is the maximum number of people we can have in the office at any given time so that each has 4 metres squared?
  • How do we manage clusters of people around end-of-trip facilities (such as waiting for a lift)?
  • How do we manage safe spaces around bathrooms and toilets?
  • How do we manage safe practices around lifts, doors and entrances to work environments (such as ramps)?
  • How do we manage safe practices in offsite work locations (such as work vehicles)?
Transport to work
  • For riders, runners and walkers, how do we manage end-of-trip facilities?
  • For drivers, is there a carpark? Who pays the parking fee? Is contactless payment available?
  • For people arriving by car share service or taxi, how do we ensure their safety? Who pays for the service?
Cleaning and hygiene
  • Who is responsible for regular cleaning of the workplace?
  • What cleaning arrangements and products are being used?
  • What PPE is available? And when should it be used?
  • How would we respond to a confirmed or suspected case of COVID-19?
  • How do we manage shared working spaces?
Working from home
  • How do we maintain the ongoing health and safety of workers who are working from home?
  • How do we support long term working from home arrangements for workers that don’t return to the workplace?
  • How do we support workers that remain working from home while some have returned to the workplace?
  • How do we ensure the appropriate ergonomic setup for those working at home?
Mental health
  • How do we support workers in this transitional period?
  • How do we provide ongoing connection to workers who remain working from home?
  • How do we support workers adjusting to being back in the workplace after being socially isolated?
  • How do we support workers with existing mental health issues?

The National COVID-19 Coordination Commission has published a resource 'My business's COVIDSafe plan' to help businesses operate during the pandemic.

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Other useful resources

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Read our resources on employees and volunteers for more information about your obligations. Please contact us if these don't answer your specific query.
Last Updated: 05 August 2020