Workers’ rights to keep in mind during lockdown

Workers’ rights to keep in mind during lockdown

Much has been said by employer groups surrounding entitlements for employers during lockdowns within South Australia, but what about employees and their entitlements?

Workers may feel pressured to follow instructions from their employer under these stressful circumstances. However, it is important to keep in mind your rights as a worker and more importantly, understand your entitlements. Below are six of your rights as a worker which may potentially be available to you.

  1. Annual Leave – You cannot be forced to use your annual leave during an unpaid stand-down.
  2. Sick/Carer’s Leave – If you are sick or caring for someone whilst on unpaid stand-down then you can use your sick/carer’s leave and be paid for that leave. This is otherwise known as personal/carer’s leave.
  3. Re-crediting your Annual Leave – If you are on annual leave and you are either sick or caring for someone then your annual leave should be re-credited, and that leave should instead be called personal/carer’s leave.
  4. Injured worker compensation – If you are an injured worker and have been stood-down without pay then you should be entitled to receive compensation from your employer’s insurer.
  5. Reduced hours or duties – If you have been advised your hours or duties are being reduced or diminished permanently then this may give rise to a redundancy payment.
  6. Casual worker – If you are a casual worker then now is the time to see whether you can request a conversion to permanent work. The Federal Government changed this criteria recently but as a general rule, if you have been employed on a casual basis for 12 months with your current employer you have a right to request, and potentially be made permanent.

Outside of the above rights, there are several other forms of compensation or entitlements you may be able to claim, including:

  1. Long Service Leave – If you are struggling to make ends meet, check whether you have Long Service Leave Entitlements, or any other statutory entitlements available to you.
  2. Leave – You can enquire with your employer what leave is available to you in your circumstance.
  3. Timely Pay Slips – All workers have to be provided with timely pay slips advising not only of the wage that is being paid to you, but also has to show an accrual of your leave entitlements.
  4. Injury entitlements – If you have been injured at work in the past then make sure you are not missing out on any entitlements through the insurer.
  5. Unfair Dismissal – You have 21 days to make an application for unfair or unlawful dismissal so if you think your contract has been terminated or adversely affected then get in contact with your union or Boylan Lawyers.
  6. Liquidation or Bankruptcy – If your employer goes into liquidation/bankruptcy then the Fair Entitlements Guarantee (FEG) may provide you the accrued entitlements, including wages and leave entitlements that your employer cannot afford to pay.

If you are struggling with your current income during lockdown, you may be eligible for other financial Covid19 support, including:

  1. Pandemic Leave Disaster Payment – A $1500.00 payment from the Commonwealth Government to a worker for each 14-day period a worker is required to quarantine and cannot work due to quarantine (conditions apply).
  2. Covid-19 Disaster Payment – On 28 July 2021 workers can receive $375.00 per week if they are unable to work between 8 and 20 hours a week and $600.00 a week if unable to work for over 20 hours a week.
  3. SA Covid-19 Cluster Isolation Payment – Unlike the disaster payment this payment is a one-off payment of $300.00. You are eligible if you must self-isolate due to being in a cluster area and is to compensate you whilst awaiting your result.

Check your eligibility on the SA Government website here: www.covid-19.sa.gov.au/school-and-community/financial-support-for-individuals

 

Andrew Wright is a Partner at Boylan Lawyers, expert in industrial relations for workers, and the pre-selected Labor candidate for the Seat of Stuart.

 

Boylan Lawyers puts the rights of South Australian workers first. If you want more information about your rights as a worker during the Covid19 lockdown, contact our team of experts on (08) 8632 2777. It costs nothing to ask a question.

 

 

Andrew Wright
Employment Lawyer & Partner
Boylan Lawyers

Contravening Parenting Orders During COVID-19 Lockdown

Contravening Parenting Orders During COVID-19 Lockdown

Co-parenting COVID-19 | Boylan Lawyers

COVID-19 has caused a great wave of issues throughout our community. One of those issues has been the significant increase in disputes regarding the care of children in separated families. Some parents have elected to depart from the usual care arrangements without consultation with their counterpart. This has resulted in a variety of disputes concerning the contravention of an order whereby a parent has intentionally failed to comply with an order.  It has also aggravated issues that would have otherwise remained dormant. 

The increased of the rising disputes is evident by the need by the Family Court to create a special Court list for parent related disputes that arise due to the coronavirus. [See: http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/about/news/jpd032020]

The general comments by the Family Court have been that parties need to use common sense as a result of their response to the challenges created by the pandemic.

Unfortunately, such common sense is not always possible among parents because there is a level of animosity which makes it very difficult for reasonable discussions to take place. 

What is in the interest of the child remains the paramount consideration.  Family Law Act 1975 (Cth) sub-div. F div. 13A pt. V11, s. 43(1)

Kardos & Harmon [2020] FamCA 328 (7 May 2020) is a recent judgement in the family Court which highlights the need for parents to be pragmatic when dealing with the COVID-19 pandemic.

In that matter, the father lived in Brisbane and made an application that final orders had been contravened by the mother who resides in Adelaide. The mother contended that the circumstances of the COVID-19 pandemic provided a reasonable excuse for her not to travel to Brisbane to deliver the child.  The court found that the mother had not contravened the final orders and had established that she had a reasonable excuse for non-compliance with them. The Court went on to vary the final orders to facilitate the father spending time with the child. The net effect of the court’s orders were that the father would need to travel to Adelaide, and be subject to quarantine requirements, should he wish to see the child however in the event that he did not travel to Adelaide then the child would have make up time with him at a later date.

Kardos & Harmon provides some guidance to parents in different states or territories, but it becomes more difficult for those within the same state.  In those cases, whether there is a reasonable excuse is a far more difficult question to answer.  Those parents who tie themselves to the public health notifications (such as https://www.sahealth.sa.gov.au/wps/wcm/connect/public+content/sa+health+internet/conditions/infectious+diseases/covid+2019/coronavirus+disease+2019+covid-19), which are considered by the Court, will most probably find it difficult as the restrictions ease.   Not long ago most state governments were considering whether schools would be open or not and parents choosing to keep children at home for their safety. Things have changed dramatically since then and now what was once a reasonable step would now be seen as unreasonable.  This should cause great alarm for those parents who have acted unilaterally to contravene orders under the guise of a reasonable step in response to COVID-19.  In hindsight, their actions will not be viewed positively.

Different judges will have different interpretations of when a party is acting from a health and well-being approach as opposed to capitalising or taking advantage of the crisis. It would depend on the context and history of the particular matter and the nature of the contravention.  The result is that parents must seek legal advice to understand their position in light of their specific circumstances. Those who are opportunistically taking advantage of some of the restrictions should be immediately cautioned and asked to reconsider their position. 

In addition to getting specific legal advice about parents breaching orders because of COVID-19 restrictions, there are also resources that can help guide parents with the difficulties of managing parenting during the pandemic. One of those resources has been produced by the Law Council of Australia and can be found below. It provides practical steps that can assist parent’s with coping. 

The time taken to traverse the Family Court system is increasing exponentially with these matters.  There is always an opportunity to privately mediate the issues in order to reach a pragmatic compromise however if that is not possible then matters must be advanced as a priority rather than being delayed as each day goes by. 

Property Market Update with Economist Dr Craig Emerson

Property Market Update with Economist Dr Craig Emerson

The current and future state of the property market is top of mind for all of us. Renowned Economist Dr Craig Emerson, provides an update on the status of the houseing market and what we can expect in the months ahead, as industry navigates the COVID-19 outbreak.

What about the Worker? Fair Entitlements Guarantee (FEG) and COVID-19

What about the Worker? Fair Entitlements Guarantee (FEG) and COVID-19

Covid-19 | Boylan Lawyers

The International Labour Organisation (ILO) has suggested that 1 billion workers globally are at risk of a pay-cut or losing their job. Of that billion, 25 million jobs are likely to be lost globally in the foreseeable future.

Recent predictions suggest Australia’s jobless rate will double – so over 10% of the population will be without a job. 800,000 Australian businesses appear to be in significant strife after registering for the JobKeeper payments.

Unfortunately, there are many businesses that simply cannot last, and indeed haven’t been able to last, even up till now. As such they will close and may do so with significant debt.

It’s the debt that cannot be repaid that requires the business to go down the track of bankruptcy. There is no denying this is devastating for the business but spare a thought also for the employees working for that business.

What happens to workers, who were relying and had budgeted on their next fortnights wage?

Or what happens to their entitlements that accrue as a result of being loyal employees over the many years, such as entitlements (that’s right, entitlements) to Annual Leave and Long Service Leave?

What about a further entitlement to ‘notice’ if their employment abruptly comes to a halt?

All the above are part of the National Employment Standards (NES) which are clearly articulated within the pages of the Fair Work Act. They are rights that workers have under Commonwealth law, and dare I say it, International law.

FAIR ENTITLEMENTS GUARANTEE

Under The Fair Entitlements Guarantee Act 2012, workers who are unable to recover their statutory entitlements from their employer due to an insolvent event (enters administration and then liquidation), are able to be reimbursed that shortfall from the Federal Government.

The entitlements workers can claim back from the Government if the employer is unable to pay due to their insolvency consists of:

  1. Wages (capped at 13 weeks)
  2. Annual Leave
  3. Long Service leave
  4. Payment in Lieu of Notice
  5. Redundancy pay (capped at 4 weeks per year of service)

The amount a worker is entitled to be paid will be determined according to the existing terms in the employment contract but the application for assistance needs to be made no later than 12 months after termination, or the insolvency event (whichever is longer).

Stand downs

Continuity of service still applies with respect to a stand down under s524 of the FWA and so workers are not entitled to redundancy pay and therefore notice. Indeed, they are not entitled to a wage during their time in ‘limbo’.

Whilst the worker in the short term can access the increased job seeker payment, it must be borne in mind that enhanced job seeker payment will soon expire. Stand downs are also for a limited duration (though we do not know exactly how long) and so workers who are not reinstated within a reasonable time should be paid a redundancy through their employer, and if the employer cannot afford to pay, through FEG.

Workers shouldn’t have to wait twice!

The insolvent event requirement under FEG is the second waiting game that workers would have to endure. That criteria worked to an extent prior to the pandemic, but it must, like the rest of society, be flexible and change with the times. If you let workers wait too long, then the adage of ‘too little too late’ is obliviously clear!

Employers Paying Less Than The Minimum

Section 119 of the FWA articulates out how much a worker is to be paid for a redundancy. It’s the bare minimum a worker can receive for a redundancy. Any EA’s or contracts of employment are subjected to the best-off overall test (BOOT) and therefore must ensure they are at least the same as, or better than s119.

Despite what I have said above Section 120 of the Fair Work Act 2009 provides an exception to the bare minimum under s119.

It allows an employer to reduce a redundancy payment by up to 100%, if amongst other things they can establish significant financial difficulty (not an ‘insolvent event’). And so even though the employer avoids bankruptcy, the worker may not.

Mason Architectural Joinery is a Sydney business who recently requested respite (likely as a result of the downturn in business due to the pandemic) from the FWC by making an application under s120 FWA. Their application was successful such that the 7 weeks redundancy the worker would have received was reduced to 1 week.

No FEG would apply to the worker as the Order of the FWC provides the new statutory entitlement as 1 week.

Whilst there isn’t an immediate issue with the FWC assisting a business to remain open, there is an issue if it’s at the expense of the worker.

What of the scenario where the FWC allows a reduction for the employer under s120 but then bankrupts the individual in the process?

There must be a widening of the scope of FEG whenever the FWC decides that businesses should be given respite under s120 at the expense of the worker.

Whilst this issue is pertinent now, I suggest any FWC Order reducing a worker’s minimum entitlement under s120 be at the expense of the government, not the worker.

‘Presuming’ COVID-19 arises from work

‘Presuming’ COVID-19 arises from work

Nurse Doctor COVID 19 | Boylan Lawyers

If a nurse, cleaner, doctor, or any other profession working ‘on the front line’ assisting with the Covid-19 virus contracts the virus, then these vulnerable workers should be protected as much as possible under State, Territory or Commonwealth workers compensation laws.

Under the Return To Work Act 2014 (RTW Act) South Australia has a list of jobs and medical conditions that are presumed to have occurred (deemed injuries) because the injury or disease occurred when they were undertaking a task that is likely to have caused that injury or disease. Unless there is proof to the contrary from the insurer/employer (the reverse onus) then the claim for that injury is accepted.

Covid-19 must be included in that list, at least for workers such as nurses, doctors and cleaners who are working in ‘high-risk’ areas, or the front line as mentioned above. Section 9 is the evidentiary provision under the RTW Act

“An injury isn’t compensable unless it can be established on the balance of probabilities it arises from employment

As it stands, our State legislation requires a worker who contracts the virus prove they contracted it from work. Imagine then a nurse working in a clinic who tests and/or treats Covid-19 cases. The law as it stands says the nurse would need to establish, they contracted the virus from work, on the balance of probabilities. That may be difficult if for example other members of the nurse’s family (or friends) also contract the virus around the same time as they did.

S188(1) assists to some extent;

“ An injury…that develops gradually or is a disease will be taken to have occurred when the worker first becomes totally or partially incapacitated for work by the injury”

However, the worker still needs to establish the injury creating the incapacity is ‘a work injury’ as defined under s7(1) of the Act;

“This Act applies to an injury if (and only if) it arises from employment”

 Section 9(4) of the RTW Act allows Regulations to be made ‘on the recommendation, or with the approval of the Corporation’ to add a job and an illness/disease to schedule 2 Injuries.

As an example, Asbestosis is a schedule 2 injury. The worker who contracts Asbestosis need only show they had worked with asbestos previously. So surely contracting Covid-19 should be considered in the same light?

There are 24 schedule 2 injuries at present and that number must be increased to 25 and have retrospective effect.