Employee’s Leave Entitlements & Flexible Working Arrangements

COVID-19 or Coronavirus has had a tremendous impact on the global economy and the employment sector in particular.

In the present circumstances, it is important that the employers and the employees are aware of their workplace rights and obligations.

Enforcement of Safety Measures

The employers should keep up to date on any guidelines issued by State, Territory, and Federal governments and relevant authorities regarding Coronavirus.

Pursuant to Part 2 of the Work Health and Safety Act 2011 (Cth), the employers, as far as reasonably practicable, have a responsibility to provide a safe and healthy work environment for the employees. The employers have an obligation that their actions or failures to act do not have any negative effect on the health of the employees.

The World Health Organization’s guidelines for organizations may also be helpful for employers for maintaining the safety and the welfare of the employees.

Work from Home

Pursuant to the Part 3.1 of the Work Health and Safety Regulations 2011 (Cth) and the Model Work Health and Safety Laws, employers must implement appropriate control measures to contain the situation, even if it means that they have to require their employees to work from home. Even if the employees are working from home during this period, the employer is still responsible for their health and safety, therefore, it is prudent to implement a robust Work from Home Policy in place.

An employer, for the health and safety of others in a workplace, may direct an employee to work from home until they provide the employer a medical clearance certificate. If the employee insists to work during this period, they will have to be paid for this period but if the employee is required to self-quarantine themselves under the government orders, the employer may not have to pay them for this period, unless they use their leave entitlements.

Flexible Working Arrangements

Pursuant to s 65 of the Fair Work Act 2009 (Cth) (the FWA) an employee, who has been employed for more than 12 months can request the employer, in writing with the proposed changes, for a flexible working arrangement due to reasons, such as :

• disability;

• family violence;

• providing support to family member suffering from violence;

• providing care to a child;

• the employee is 55 years or older; or

• the employee is a carer within the meaning of the Carer Recognition Act 2010 (Cth).

Permission for a flexible working arrangement is subject to the approval of the employer and the employment contract between the employer and the employee. The employer must reply in writing to this request within 21 days and may only refuse by providing a reasonable ground.

Leave Entitlements

An employee’s entitlement to paid leave depends on what type of employee they are. Only permanent, fixed term, and regular and systematic casual employees are entitled to paid leave pursuant to the relevant modern awards, enterprise agreements or the employment contracts.

The different types of employees and their general leave entitlements have been discussed in a separate article entitled “Types of Employment Relationships and the Relevant Entitlements”.

Long Term Sick Leave

Pursuant to s 352 of the FWA, an employer must not dismiss an employee because the employee is temporarily absent from work because of an illness or injury. Pursuant to Regulation 3.01 of the Fair Work Regulations 2009 (Cth), the employee must provide a medical certificate of such illness to the employer within 24 hours of becoming ill or within a reasonable period, if not possible. The employer must not terminate the employment of such employees if:

• they have been absent from work for less than 3 consecutive months or less than three months in the last 12 months;

• they have taken their entitled paid sick leave, or unpaid sick leave or the combination of both during this time; and

• they can provide evidence of their sickness.

Pursuant to s 351 of the FWA, the employer must not discriminate against an employee by terminating their employment because of a mental or physical disability.

It was held by the Federal Circuit Court in McGarva v Enghouse Australia Pty Ltd [2014] FCCA 1552, that the employer does not have an automatic right to terminate the employment of a an employee when they are absent due to an illness for more than 3 months. The employer must consider the following grounds before making that decision:

• whether the employee is fit to return to their duties;

• when will they be able to return;

• will the employer have to make alternate arrangements or modifications so that the employee is able to work;

• how long the employee has been employed;

• the size of the organization; and

• the length of the employee’s absence.

In R v Aurizon [2014] FWC 22, the Fair Work Commission held the dismissal of the employee was fair as the employee was absent from the work for more than a year and there were no reasonable prospects of his returning to work.

The Employer should implement a robust Long Term Sickness Policy in place for these circumstances.

Next Steps

If you require any employment law advice at this time, feel free to contact us for a free consultation on (02) 9262 5495 or (03) 8899 7870; visit our Website; Like our Facebook Page.

This article is written by Nyeilza Dutt and settled by Damin Murdock. This article is not legal advice and should not be relied upon as legal advice. All articles found on this website are intended to provide informative information, nevertheless, in many instances legislation and case law has been simplified and/or paraphrased. If you would like personal legal advice based on your current circumstances, you should contact MurdockCheng Legal Practice for a free consultation.