Thinking | 8 May 2020

COVID-19 alert: what does the PM’s new 3-step plan mean for employers?

By Melinda Bell and Jessica Kamleh

This article was updated on 28 May 2020 after its original publication on 8 May 2020.

Today, 8 May 2020, the Federal Government released its highly anticipated plan to ease restrictions that have been in place to stop the spread of COVID-19.

Restrictions are intended to be eased in 3 steps, with all steps planned to be completed by July 2020. You can read a copy of the detailed ‘3-Step Framework for a COVIDSafe Australia’ (3 Step Plan) here.

With Step 1 easing restrictions on restaurants, cafes and retail shops, employers will be eager to reopen their doors to customers as soon as possible. However, while the Federal Government has proposed the 3 Step Plan, the timing of each step is actually up to each State and Territory.

That means it’s important for employers to ensure that they understand the restrictions which apply in the State or Territory in which they operate. For example, the Northern Territory government has already released its own roadmap (its stage 1 having already commenced on 1 May 2020).  Current restrictions can be accessed on each State and Territory health department’s website.

Over the coming weeks, we’ll be publishing a series of articles to help you make sense of the changing landscape for employers. In the meantime, key points for employers from the Prime Minister’s press conference include:

Employees must continue to work from home ‘if it works for you and your employer’

Steps 1 and 2 require employees to work from home ‘if it works for you and your employer’. This is subject to the rules in each State and Territory – for example, at 28 May 2020, Northern Territory workers can return to the workplace in most circumstances, regardless of whether work from home is a viable option.

Employers should continue to monitor the effectiveness of work from home arrangements. If working from home is proving ineffective for your business or for some employees, the 3 Step Plan may provide some flexibility for employers to reach agreement with employees to return to the workplace.

Employers can also expect to see employees coming forward to discuss alternate ways of working such as returning to the office, working from an alternative location, or adopting a hybrid approach to work from home some days. Employers should engage with employees regarding their return to work and carefully consider matters raised by employees, this may include receiving legal advice on a case by case basis.  Our Back to Work article series provides further guidance on these issues.

Above all, however, when returning employees to the workplace employers must ensure that they’ve put measures in place to ensure that it’s safe for employees to return. Social distancing and other COVID-19 safe practices will continue to apply for the long-term. Safe Work Australia has released practical guidance on this, and as part of our update series we’ll be publishing articles in the coming weeks to help employers comply with work health and safety (WHS) requirements.

A full return to the workplace is envisaged for July 2020

Step 3, which the Federal Government hopes will be completed by the end of July, will see a ‘return to the workplace’. No details on this have been announced, but it at least provides employers with an opportunity to plan for workforce return over the next 3 months.

Employers should develop a ‘COVIDSafe plan’

The 3 Step Plan includes a statement that workplaces must ‘develop a COVIDSafe plan’. As at 28 May 2020, the Federal Government’s National COVID-19 Coordination Commission has developed a 14-page COVIDSafe plan template for employers. It provides a checklist of WHS obligations and other tips and resources for getting back to work. While the plan provides helpful guidance, employers are not currently legally required to complete a COVIDSafe plan. We encourage employers to treat the COVIDSafe plan as only one part of the back to work framework, as it does not incorporate applicable State or Territory requirements which must be considered by employers.

In any case, even without the PM’s formal call for a COVIDSafe plan, employers should already be planning a gradual return to the workplace in light of the proposed Step 3 timing. You should seek legal advice to assist you, as there have been significant changes to legal obligations, including to the Fair Work Act 2009 (Cth), modern awards and WHS recommendations which will impact upon proposed return to work arrangements.

Avoid public transport in peak hour

All 3 steps of the 3 Step Plan require employers to avoid requiring their employees to use public transport in peak hour.

This may require a gradual return to work, continued work from home where practical or creative approaches such as shift work arrangements or staggered start times.

It’s likely that your modern award or enterprise agreement requires you to consult with employees before making such changes to working arrangements. We recommend seeking advice to understand your obligations in this changing landscape.

JobKeeper is not intended to be long term

The PM has reiterated that the JobKeeper scheme is not intended to be a long term program. It will be reviewed at the end of June 2020, and is set to expire at the end of September 2020. Employers should not rely on further stimulus packages to be announced after that date.

It’s important to remember that these points are simply guidance from the Federal Government, and that each State and Territory will announce more detailed rules in the coming weeks.

In these uncertain times, it’s crucial to comply with your obligations under the Fair Work Act 2009 (Cth) and any applicable modern award or enterprise agreement. Navigating the complexities thrown up by returning employees to the workplace is likely to present challenges for many employers. For practical guidance on how to manage those challenges, contact us to discuss your business and its needs.

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