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Is that legal? What your boss can and can’t do during COVID-19

Is that legal? What your boss can and can’t do during COVID-19

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We’re living and working in uncertain times, and as an employee you might have questions about what your employer can and can’t ask of you. 

Here Sam Nottle, an associate lawyer with employment law firm McDonald Murholme, answers four common questions about what employers are allowed to do when it comes to leave and entitlements during COVID-19.

  1. Can my employer make me take annual leave?
  2. Can my employer make me take a pay cut? 
  3. Can my employer reduce my hours?
  4. Can my employer make me work from home? 

Can my employer make me take annual leave?

If your employer is an eligible JobKeeper employer they can:

Request that you take paid annual leave, as long as you keep a balance of at least two weeks of paid annual leave.

If your employer asks you to take annual leave:

  • You must consider the request; and
  • You must not unreasonably refuse the request.

“What is reasonable or unreasonable is determined by  the circumstances of a situation,” Nottle says. “For example, it may be reasonable for an employer to request an employee with five weeks accrued annual leave to take an entire week of annual leave.”

But Nottle notes that it may not be reasonable to make the same request of an employee with three weeks of accrued annual leave “because the employee would be left with a leave balance of two weeks or less”.

In the example above where an employee has three weeks of accrued annual leave, Nottle says they may be able to reasonably refuse to take annual leave if (for example) they already had two weeks annual leave booked in the next month.

If your employer is or is not an eligible JobKeeper employer they can:

  • Direct you to take a period of annual leave where that directive is written into either your employment contract, award or enterprise agreement.
  • If you are an award or enterprise free employee, your employer can require that you take annual leave where that requirement is reasonable.

Most modern awards provide for a direction in two circumstances:

  • You have an excessive annual leave balance; and/or
  • The business is shut down for a particular period.

“An excess annual leave balance is, generally speaking, about eight weeks of accrued annual leave,” Nottle says.

“This provides guidance for where a requirement is reasonable for award or enterprise agreement free employees as well. For example, a reasonable requirement may be that you take annual leave while the business is shut down over the Christmas and New Year period.”

Can my employer make me take a pay cut?

If your employer is not an eligible JobKeeper employer, they can’t force you to take a pay cut.

Regardless of whether your employer is an eligible JobKeeper employer, they cannot reduce your base hourly rate of pay without your agreement.

“The new JobKeeper provisions of the Fair Work Act say employees must be paid the same base rate of pay – calculated on an hourly basis – as they received prior to any JobKeeper enabling direction,” Nottle says.

However, your JobKeeper employer may be allowed to reduce your hours of work, which will result in a pay cut.

For example: “If you are remunerated $60,000 per annum to perform full-time duties, and your days of work are reduced to four days per week, you will receive remuneration of $48,000 per annum for 4 days of work per week,” Nottle says.

Can my employer reduce my hours?

If your employer is not an eligible JobKeeper employer they can’t force you to work reduced hours without your agreement.

If your employer is an eligible JobKeeper employer, they can request you reduce your hours of work if:

You cannot be usefully employed for your normal days or hours during the JobKeeper period because of changes to business that are attributable to:

  1. the COVID-19 pandemic; or
  2. government initiatives to slow the transmission of COVID-19.

An example of this is that the government orders a restaurant cannot serve patrons and you are employed as a bartender at that restaurant.

  • implementing the stand down direction is safe, with regard to the nature and spread of COVID-19; and
  • you are entitled to one or more JobKeeper payments during the stand down direction period.

“An employer must give at least 3 days written notice and consult with the employee. It is not a direction – it is a request,” Nottle says, “which means the employee must consider and not unreasonably refuse the request. There should be a genuine engagement from both sides. But again, what is reasonable or unreasonable will depend on your individual circumstances.”

Can my employer make me work from home?

If your employer is or is not an eligible JobKeeper employer, ordinarily it cannot force you to work from home unless your award, enterprise agreement or contract of employment provides for such a direction.

Generally speaking, Nottle says that employees must comply with directions that are lawful and reasonable.

“In the current COVID-19 environment, it is likely to be a lawful and reasonable direction for an employer to direct an employee to work from home,” he says. “Employers must comply with their obligations under workplace occupational health and safety regulations.”

If you can’t work from home then your employer might tell you to take steps in order to comply with OH&S obligations. “For example, your employer might direct you to avoid taking public transport or altering start times so that you avoid the peak hour public transport times.”

“An employer can also ask you to sign a new contract and you can agree,” Nottle says, “but they cannot direct or force you to sign a new contract.”

If your workplace is an eligible JobKeeper employer, a direction to work from a place different from your normal place of work may be given where:

  • The new location is suitable for your duties;
  • If not your home then a place that doesn’t require you to travel a distance that is unreasonable in all the circumstances;
  • The performance of duties at the location is safe and within the scope of the employer’s business operations; and
  • You are entitled to one or more JobKeeper payments during the relevant period.

What can I do if I think something is wrong?

If you think your employer has breached the rules, then seek help. You can contact your union (if you’re a member), seek further information from Fair Work Australia or seek legal advice from specialist employment lawyers.

Information provided in this article is general only and it does not constitute legal advice and should not be relied upon as such. SEEK provides no warranty as to its accuracy, reliability or completeness. Before taking any course of action related to this article you should make your own inquiries and seek independent advice (including the appropriate legal advice) on whether it is suitable for your circumstances.

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