covid19-law.com.au
13. Industrial
C. Stand-downs & Redundancies
The financial impact of COVID-19 on businesses has resulted in the standing down of many employees. Under s 524 of the Fair Work Act 2009 (Cth), an employer may stand down an employee during a period in which the employee “cannot usefully be employed” because of, relevantly, “a stoppage of work for any cause for which the employer cannot reasonably be held responsible” (s 524(1)(c)).
The financial impact of COVID-19 is also relevant to redundancies (both as a cause of redundancies and in respect of their implementation). Unlike stand downs, if an employee’s employment is terminated on the ground of redundancies, there are notice requirements and obligations to pay redundancy pay under Division 11 of theFair Work Act 2009 (Cth).
i. Legislation
Commonwealth:
Fair Work Act 2009 (Cth) amended by the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 (Cth):
ii. Case law
The financial impact of COVID-19 on an employer may justify an order reducing its liability for redundancy pay under s 120 of the Fair Work Act 2009 (Cth): Mason Architectural Joinery Pty Ltd [2020] FWC 1897, [5], [6]; JFM Civil Contracting Pty Ltd v Fraser [2020] FWC 2546, [38], [41], [44]-[47]; cf Worthington Industries Pty Ltd v Nael Ablahad [2020] FWC 1912, [3]-[5], [8]-[14], [33]; Print Logistics Unit Trust [2020] FWC 3128, [27]-[31].
However, the pandemic does not alter an employer’s obligation to consult in relation to proposed redundancies: Australian Municipal, Administrative, Clerical and Services Union v Auscript Australasia Pty Ltd [2020] FWC 1821, [38], [43]. Relevantly, the Commission has held that Auscript failed genuinely to consult with staff in relation to planned redundancies (for the purposes of its obligation to do so under an enterprise agreement), because it had already determined that the redundancies would occur when it purported to satisfy its consultation obligation: Australian Municipal, Administrative, Clerical and Services Union v Auscript Australasia Pty Ltd [2020] FWC 1821, [43]. The Commission noted that the purpose of consultation clauses is to ensure that an employer genuinely considers options, so that measures such as redundancy are a last resort ([38]), and that, notwithstanding the impact of COVID-19 on business, employers should continue to treat staff with dignity during the pandemic ([49]).
Government restrictions imposed as a result of COVID-19, which result in an employer's decision not to offer an employee any further casual shifts, is not a termination of employment at the employer's initiative. Without a termination of employment, the Commission does not have jurisdiction to hear an unfair dismissal application: Richard Warren v Moreland Bus Lines Pty Ltd [2020] FWC 3206, [42]-[44].
An extension of time may be granted for a late unlawful termination application under s 773 of the Fair Work Act 2009 (Cth) where the postal service diverted the application due to protocols for handling postal applications in light of the COVID-19 pandemic: Trudy-Ann Howse v Regis Aged Care [2020] FWC 3305, [9]. In the unfair dismissal context, exceptional circumstances warranting an extension of time may include serious family violence experienced by the applicant which was exacerbated by the requirement to stay at home in response to COVID-19: Liam Wilson v Quatius Logistics Pty Ltd [2020] FWC 3110, [15]. However, the COVID-19 pandemic will not justify a late unfair dismissal application where it has not, in fact, prevented the filing of an application and where there has been no change to unfair dismissal laws surrounding COVID-19: Damien Finley v Robert Horvath T/A Sugar Reef Bistro [2020] FWC 3243, [91], [98], [105]; see also Moa Wakuk v JBS Australia Pty Ltd [2020] FWC 3161.
In Martina Williams v Forrest Marketing Group [2020] FWC 3116, the Deputy President was not satisfied that there were exceptional circumstances warranting an extension of time under s 394(3) in part because, when considering the merits of the application, it appeared on the material that the employer had a reasonable explanation for the employee's dismissal, being a significant downturn in business due to COVID-19: [34]; see also Roslyn Hutton v Forrest Marketing Group [2020] FWC 3115, [39]-[40]. A different conclusion with respect to COVID-10 and the merits of the application was reached in Julie Richters v Docs Pharmacy Pty Ltd [2020] FWC 3198, [18].
C. Stand-downs & Redundancies
The financial impact of COVID-19 on businesses has resulted in the standing down of many employees. Under s 524 of the Fair Work Act 2009 (Cth), an employer may stand down an employee during a period in which the employee “cannot usefully be employed” because of, relevantly, “a stoppage of work for any cause for which the employer cannot reasonably be held responsible” (s 524(1)(c)).
The financial impact of COVID-19 is also relevant to redundancies (both as a cause of redundancies and in respect of their implementation). Unlike stand downs, if an employee’s employment is terminated on the ground of redundancies, there are notice requirements and obligations to pay redundancy pay under Division 11 of theFair Work Act 2009 (Cth).
i. Legislation
Commonwealth:
Fair Work Act 2009 (Cth) amended by the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 (Cth):
- New s 789GDC: “Jobkeeper enabling stand down”
ii. Case law
The financial impact of COVID-19 on an employer may justify an order reducing its liability for redundancy pay under s 120 of the Fair Work Act 2009 (Cth): Mason Architectural Joinery Pty Ltd [2020] FWC 1897, [5], [6]; JFM Civil Contracting Pty Ltd v Fraser [2020] FWC 2546, [38], [41], [44]-[47]; cf Worthington Industries Pty Ltd v Nael Ablahad [2020] FWC 1912, [3]-[5], [8]-[14], [33]; Print Logistics Unit Trust [2020] FWC 3128, [27]-[31].
However, the pandemic does not alter an employer’s obligation to consult in relation to proposed redundancies: Australian Municipal, Administrative, Clerical and Services Union v Auscript Australasia Pty Ltd [2020] FWC 1821, [38], [43]. Relevantly, the Commission has held that Auscript failed genuinely to consult with staff in relation to planned redundancies (for the purposes of its obligation to do so under an enterprise agreement), because it had already determined that the redundancies would occur when it purported to satisfy its consultation obligation: Australian Municipal, Administrative, Clerical and Services Union v Auscript Australasia Pty Ltd [2020] FWC 1821, [43]. The Commission noted that the purpose of consultation clauses is to ensure that an employer genuinely considers options, so that measures such as redundancy are a last resort ([38]), and that, notwithstanding the impact of COVID-19 on business, employers should continue to treat staff with dignity during the pandemic ([49]).
Government restrictions imposed as a result of COVID-19, which result in an employer's decision not to offer an employee any further casual shifts, is not a termination of employment at the employer's initiative. Without a termination of employment, the Commission does not have jurisdiction to hear an unfair dismissal application: Richard Warren v Moreland Bus Lines Pty Ltd [2020] FWC 3206, [42]-[44].
An extension of time may be granted for a late unlawful termination application under s 773 of the Fair Work Act 2009 (Cth) where the postal service diverted the application due to protocols for handling postal applications in light of the COVID-19 pandemic: Trudy-Ann Howse v Regis Aged Care [2020] FWC 3305, [9]. In the unfair dismissal context, exceptional circumstances warranting an extension of time may include serious family violence experienced by the applicant which was exacerbated by the requirement to stay at home in response to COVID-19: Liam Wilson v Quatius Logistics Pty Ltd [2020] FWC 3110, [15]. However, the COVID-19 pandemic will not justify a late unfair dismissal application where it has not, in fact, prevented the filing of an application and where there has been no change to unfair dismissal laws surrounding COVID-19: Damien Finley v Robert Horvath T/A Sugar Reef Bistro [2020] FWC 3243, [91], [98], [105]; see also Moa Wakuk v JBS Australia Pty Ltd [2020] FWC 3161.
In Martina Williams v Forrest Marketing Group [2020] FWC 3116, the Deputy President was not satisfied that there were exceptional circumstances warranting an extension of time under s 394(3) in part because, when considering the merits of the application, it appeared on the material that the employer had a reasonable explanation for the employee's dismissal, being a significant downturn in business due to COVID-19: [34]; see also Roslyn Hutton v Forrest Marketing Group [2020] FWC 3115, [39]-[40]. A different conclusion with respect to COVID-10 and the merits of the application was reached in Julie Richters v Docs Pharmacy Pty Ltd [2020] FWC 3198, [18].
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