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

SEEK content team – updated on 23 August, 2021

The way we work has changed dramatically during COVID-19. Businesses and organisations have had to alter the way they operate. As an employee, you might have questions about what your employer is allowed to do around your pay, leave and hours – and what’s not allowed.

Now that JobKeeper has come and gone, it’s can be difficult to understand what your rights are as an employee, and what your employer is allowed to do around your pay, leave and hours. We’re here with some answers to your questions.

We’ve asked Sam Nottle, an associate lawyer with Jewell Hancock Employment Lawyers, for answers to common questions around current employment rights during COVID-19.

Can my employer make me take annual leave?

Your employer can:

Direct you to take annual leave where that directive is in an applicable award or enterprise agreement;
Require that you take annual leave where that requirement is reasonable, if you’re not covered by an award or enterprise agreement.

Under most modern awards, employers can direct you to take leave if:

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

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

This is a guide for what’s reasonable for employees that aren’t covered by awards or agreements, too, he adds. “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.

“Ultimately, it will depend on the particular circumstances of each case”.

Can my employer force me to get vaccinated?

In some cases, employers may be able to require you to be vaccinated against COVID-19. However, they must consult all employees when creating or changing a policy on coronavirus vaccinations.

Employers can only require you to be vaccinated where:

a specific law requires an employee to be vaccinated
the requirement is permitted in your agreement or employment contract
it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis.

If you are required to be vaccinated against coronavirus and your vaccination appointment is during work hours, your employer should cover your travel costs and allow you time off work to attend.

Disciplinary action may be taken against an employee in the event they fail to follow a lawful and reasonable direction. This will be assessed on a case-by-case basis.

For more information around workplace rights and obligations for COVID-19 vaccinations, visit the Fair Work Ombudsman’s website.

Can my employer stand me down?

Being ‘stood down’ basically means you stop working for a period of time and you’re not paid, but you’re still employed and have entitlements.

There may be some circumstances in which you can be lawfully stood down, once notice and/or consultation has been provided. Check your contract or the enterprise agreement/modern award that applies to you for information – they may include specific provisions about when a stand down is lawful, the consultation requirements and notice.

Generally, an employer can stand down an employee where:

The employee cannot be usefully employed. This depends on the particular circumstances that face the employer, and might include being unable to conduct the normal operations of the business due to COVID-19 restrictions.
There has been a stoppage of work for which the employer cannot be held responsible. This could include COVID-19 government restrictions that prevent normal operations of a business. For example, if you work as an airline pilot, work may have stopped due to stage 4 restrictions and the closure of international and/or state borders.

“Fairness” between the parties also needs to be considered, Nottle says. “For example, if the stoppage of work reduces operational demands of the business by 80%, five employees could stay on reduced hours of 20%, rather than one employee remaining on full-time hours and four employees being stood down all together. Again, this will depend on specific circumstances.”

Your employer doesn’t need to pay you during the stand down period. However, an employer can’t stand down an employee where the employer has already authorised paid or unpaid leave during the relevant period.

Can my employer make me redundant?

The difference between redundancy and being stood down is that redundancy ends your employment, but a stand down does not.

You can be made redundant when:

Your employer no longer requires your job to be performed because of changes in the business’s operational requirements. Those changes can include outsourcing your role, improvements in technology, a downturn in sales or a site closure.
Your employer complies with their consultation obligations in any applicable Award or Enterprise Agreement. This involves meaningful consultation, including an opportunity for the impacted employee to be heard.
It was not reasonable at the time to redeploy you within your employer’s business or an associated entity. What is “reasonable” will depend on specific circumstances. For example, if two employees have been made redundant, but only one of them has the skills for two available alternative roles, it might be reasonable to re-deploy the skilled employee and not the unskilled employee.

Can my employer make me take a pay cut?

Your employer cannot reduce your wage without your agreement, Nottle says.

While your employer can approach you with a proposal to reduce or alter your pay, you do not need to agree.

Can my employer reduce my hours?

For full-time and part-time employees, your employer cannot reduce your hours without agreement, unless it is in the context of a lawful stand down.

Can my employer make me work from home?

Employers are required to follow government directions, including in relation to stay-at-home orders, Nottle says.

“In such an environment, for example where stage 4 restrictions are in place, it is likely to be a lawful and reasonable direction for your employer to direct you to work from home.”

It’s important to remember that failing to follow a lawful and reasonable direction could place your employment at risk.

Can my employer make me return to the workplace?

Generally speaking, employers are required to provide a safe working environment for their employees.

In Victoria for example, employers must provide a working environment that is safe and without risks to health. Equally, employees have a duty to take reasonable care of their own health and safety while at work.

“An employer can direct an employee to return to the workplace, but that direction must be lawful and reasonable,” Nottle says.

What is “reasonable” will depend on the specific circumstances of the working environment and the individual employee (including any pre-existing medical conditions). “What is reasonable will also be driven by government directives.”

For example, if COVID-19 restrictions were partially lifted and employees could return to the workplace, it might be reasonable for an employer to direct its employees to return to the workplace over staggered days, with only half the employees onsite at any time.

“It might be an unreasonable direction if all employees were expected to return to work at the same time,” Nottle says.

Nottle adds that failing to follow a lawful and reasonable direction could place your employment at risk.

Can my employer change my contract?

Changes to your contract are something both you and the employer need to agree on.

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

It’s important to review any proposed contract or your existing contract, he adds. “Employers may seek to define in a contract what is reasonable in certain circumstances. For example, a contract might include a clause as to when it is reasonable to direct someone to take annual leave.”

What can I do if I think something is wrong?

With government directions and public health orders changing all the time, don’t panic if you’re not sure what to do, or what your rights are. Seek advice if you’re concerned that your employer has breached the rules.

You can contact your union (if you’re a member), get further information from Fair Work Australia or seek legal advice from specialist employment lawyers.

There are lots of resources to help you find out more information and get the help you need. Look after your mental health, too, and contact Beyond Blue’s support service if you need to chat to someone.

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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