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Employees must legally return from JobKeeper

The JobKeeper scheme has confused many employers and business owners since it was introduced, and now the confusion centres around asking employees to return to the workplace, mainly due to people’s coronavirus Health & Safety concerns.

Perhaps the discomfort with returning to work is also somewhat due to people’s new preference to work remotely, or to continue not performing any work at all during this time. Either way, people are looking for answers on what the employer and employee rights are regarding the refusal to return to work.  

Senior barrister Ian Neil clears up some of the confusion on this hot topic for Dynamic Business readers. In a recent interview, he provided his insight and advice for employers for navigating the uncertain times ahead with coming out of JobKeeper, including having difficult conversations with employees and establishing good practices for Health & Safety.

Essentially, employees must return to work as long as that work is lawful and reasonable. As there is no current legislation on Health and Safety regarding coronavirus, this ‘reasonable’ definition is still subjective and thus probably the cause of confusion. As Ian explains, the risk associated with coronavirus is, in itself, also hard to objectively define – it’s something we have never faced before.

However, with these tips and insights, employers will feel more protected and will be on the right road to helping their employees feel safe and comfortable when returning to work.

Employees are still required to work under the JobKeeper scheme 

A recent survey suggests that over half of Australian workers are uncomfortable in returning to the workplace. As businesses start to revive and ask employees to come back, it’s appearing that coming out of the JobKeeper scheme could actually be harder than going into it.

Ian explains that there is a misconception around JobKeeper and an employee’s lawful duty to perform work.

Employees must legally return from JobKeeper
Ian Neil, Senior Barrister

“There does seem to be a widespread misconception that, because under the JobKeeper scheme workers can receive payment even if they are performing no work, that there’s some feature of the JobKeeper scheme that means that people are not required to work. That’s wrong.”

The JobKeeper does not give employees the right to refuse to work. Ian says, “There are aspects of the scheme that allow changes to be made to the work and responsibility of the employees, including standing them down altogether. But if an employer requires an employee to work, and if that requirement is lawful and reasonable then the employee must obey it, must comply, must to the work.”

The trickier part comes under the definition of “reasonable” – in terms of Health & Safety in the workplace, which is now a much harder thing to define because of coronavirus. Ian explains that for the request to perform work to qualify as “reasonable”, the work must not expose the employee to an unreasonable risk to their health and safety.

Health & safety does relate to JobKeeper – but what is ‘reasonable?’

Ian points out that these definitions are a big issue surrounding JobKeeper and have led to the misconceptions around it.

“All employers have an obligation to take reasonable steps to ensure the health and safety of their employees at work, that has always been so – it was so before the pandemic and it is so throughout the pandemic. The JobKeeper scheme does nothing about that.

“There are lots of features of the scheme that require that the directions that employers give under the scheme be reasonable and not pose a risk to the health and safety of their employees.

“However, what is new, is that the coronavirus poses all sorts of new questions about the health and safety of employees and thus, what is reasonable to ask them to do. And in my view, that is a ticking time-bomb of a problem.”

No legislation for COVID-19 Health & Safety – yet

Regarding whether there was any specific legislation around “reasonable” Health & Safety standards relating to coronavirus, Ian has said that there isn’t any – yet. This is not particularly helpful when it comes to defining the very subjective “reasonable” work that employers are starting to ask employees to return to.

This may be something that comes into play in the future. As Ian says, “There’s a capacity in the law for that to happen, for guidelines to be laid down on what should be done in order to be ‘workplace safe.’”

“There’s no reason why that couldn’t be made in relation to coronavirus but we haven’t seen it yet. There’s an urgent need for something like that.

One of the problems, of course, is that the risk to health and safety that the virus poses is subjective. What objectives are there to say that you have been exposed to it in a way that is unreasonable?

The important point is that employees can’t lawfully or properly be required to expose themselves to a real risk to their health and safety. But the risk has to be real, it has to have some objective basis in fact, it can’t be irrational or at least wholly subjective. There will be many employer cases that fall on either side either the objective or the subjective in that regard.”

What can employers do to overcome this potential refusal problem?

The JobKeeper scheme was utilised by businesses as an economic solution to keep their staff on, so that after the worst of the pandemic hit was over, they could return as usual. The scheme itself did not relate to the Health & Safety of the workplace, or take into account employees’ preferences to work remotely or stay not working, which can be seen as a separate issue to this.

However, unreasonable Health & Safety standards in the workplace can stop an employee returning from the JobKeeper as it is a legal requirement for the workplace to be safe. This debate over what is ‘reasonable,’ as you’re probably gathering, is a sticking point and perhaps will be until legislation is brought in (that goes further than the existing COVIDSafe Guidelines.)

In the meantime, we have asked Ian to share his advice on what employers can be doing.

Although there isn’t a single authoritative source of information about COVIDSafe working arrangements, the first thing employers should be doing is making a serious effort to adhere to COVIDSafe guidelines.

“They must seek out the best health and safety advice in whatever state they’re in and they must make serious efforts to comply with it and to have in place COVIDsafe working arrangements. They need to reassure their employees about that and to be frank and open about it.

“Next, they should have very clear ideas about what they want them to do – about what they want them to do, how much work they want them to do and where they want them to do it. And if there’s a difference between what the business used to require pre-pandemic and what it now requires, then there needs to be some serious thought around why that is so, how that is justified and what the consequences of that might be.”

If an employee refuses to return, dismissal is an available consequence

Much like if an employee refused to perform their work pre-pandemic, the process in handling their refusal is more or less the same now. The scheme and the pandemic hasn’t changed the fundamental features of employment – that employees must do as their employer reasonably and lawfully requires.

If the work is reasonable and lawful, then the employee must do it, and if they don’t dismissal could be the end result.

Ian summarises, “In the end, that conversation is essentially going to be the same now as it was before the pandemic. The only difference is that the pandemic will have introduced new questions about what is and what is not reasonable and that will all depend on what is and what is not safe.”

Tips for employers to protect themselves

Employers must:

  • Make huge efforts to have COVIDSafe plans in place
  • Communicate transparently and clearly with employees
  • Discuss openly changes to roles and structural changes

These action points will help business owners and employers in the event that questions arise regarding health and safety and returning to work.

“If there’s going to be a question of what is or what is not reasonable, and that is dependent on what is and what is not safe, then the employer who has:

  • carefully looked into the question;
  • carefully and diligently followed the guidelines;
  • carefully and clearly explained their position to employees;
  • explained what they have done;
  • reassured them that they have complied with the guidelines

is going to be in a good position. Employers that don’t do those things will find themselves with more difficulties.”

A silk since 2006, Ian has a wide appellate, commercial, inquiries and equity practice, with a particular specialty in employment and industrial law. He regularly appears in commissions and inquiries and conducts mediations and arbitrations in Australia, Hong Kong, and in the London Beth Din.

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Loren Webb

Loren Webb

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