Can my employer force me to take annual leave?
Annual leave is for rest and recreation. Generally, both parties must agree to the taking of leave so you cannot be directed to access your annual leave unless you are covered by an award, enterprise agreement or employment contract that provides that you may be directed to take annual leave. Your award or enterprise agreement may set out rules around when and if your employer can direct you to take annual leave such as when you have accumulated excess annual leave.
Please take note that if your employer is qualified and has applied for the JobKeeper Scheme, your employer can request that you to take paid annual leave, provided that the request will not result in you having an annual leave balance of less than 2 weeks.
You must consider and not unreasonably refuse such a request. Please read our Fact Sheet on the JobKeeper Scheme to better understand these changes.
If you find yourself in a situation like this, and you have concerns regarding your employer’s direction or request, please get in touch with the WAS team on firstname.lastname@example.org to seek advice.
I can still perform all my duties from home but my employer is still insistent on workers going into the office to work.
What are my rights?
Current government recommendations state that anyone who can work from home should work from home. All employers should be allowing employees to work from home where this is possible.
However, your employer can direct you to attend your workplace as long as your workplace is allowed to stay open, and if it is reasonable that you are required to attend work, which will depend on the type of work you do and your circumstances.
All employees are obliged to follow their employer’s lawful and reasonable directions.
If your employer directs that you must attend work and not work from home, and it is lawful and reasonable, you must obey it.
If your employer requires you to attend your workplace, they must provide a safe working environment for you. You can refuse to do work that is unsafe. For example, if you have a reasonable concern that you would be exposed to a risk to your health and safety where someone in your workplace has just returned from an overseas high risk country or where a colleague has had a family member diagnosed with COVID-19. and your employer has allowed that person to be at work.
Under section 65 of the Fair Work Act 2009 (Cth) certain eligible employees may make a request for flexible work arrangements. Employers can only refuse the request on reasonable business grounds.
I think my employer has gone bankrupt and I am worried they will not be able to pay my wages.
What can I do?
Unfortunately, a number of companies have had to shut down either because of Federal and / or State Government restrictions or because they are no longer profitable due to the Coronavirus. Your employer’s shutdown may be temporary and you should make inquiries to establish whether they intend to re-open (and whether you are still employed). If a company is bankrupt or goes into liquidation, the jobs of that Company’s employees no longer exist and they are therefore redundant.
The Federal Government has a scheme called the Fair Entitlements Guarantee (FEG) Scheme.
This financial assistance scheme is available to eligible employees who lose their jobs because their employer has undergone liquidation or bankruptcy, to get their unpaid entitlements.
This can include:
- Wages (up to 13 weeks of unpaid wages) – capped at the FEG maximum weekly wage;
- Annual leave
- Long service leave
- Payment in lieu of notice (maximum of 5 weeks); and
- Redundancy pay (up to 4 weeks per full year of service).
The scheme does not include superannuation, bonus payments or reimbursement payments.
To find out if you are eligible for the FEG Scheme and to lodge a claim please visit the Attorney-General’s Department Fair Entitlements Guarantee (FEG) page.
My employer has a policy requiring employees to disclose whether they have contracted or been tested for COVID-19. But given that I am working from home and have no contact with the workplace or my colleagues, is it reasonable or lawful for my employer to ask me to do this?
If your employer requires you to disclose whether you have contracted or been tested for COVID-19, this may be a reasonable and lawful request if it is for the purpose of mitigating health and safety risks for other employees. Workplace Health and Safety laws in each state and territory require employers to take every step they reasonably can to eliminate or minimise the risk of workers and others contracting COVID-19.
Nevertheless, if you are to disclose that you have contracted or been tested for COVID-19, your employer and other employees cannot discriminate against you or treat you less favourably on the basis of disability (which can include disease or illness). Further, your employer should avoid identifying you as having contracted COVID-19 to other employees in order to preserve your right to privacy. Employers should only provide information about possible transmission risks to other employees to the extent of managing the health and safety of such employees.
If you are working from home and you contract or are tested for COVID-19, you may choose not to disclose this to your employer if you believe that the request for disclosure is not for the purpose of mitigating health and safety risks for other employees.
If you are a full time or part time employee,
and you are not fit for work because of an illness, you may take your paid personal leave. Generally speaking, you are not required to disclose the nature of your illness. However if your employer has instituted a policy requiring you to disclose whether you have contracted or been tested for COVID-19, your employer may take the view that the policy constitutes a lawful and reasonable instruction and your failure to comply with it warrants disciplinary action. You should be careful in any situation where your actions mean you may be failing to comply with your employer’s policies and / or instructions.
If you are faced with a situation like this, please get in touch with the Workplace Advice and Support team via email@example.com to seek advice.
I think my employer is discriminating against me because of COVID-19.
What can I do?
Australia’s discrimination laws prevent an employer from discriminating against an employee for having a temporary illness like COVID-19. Your employer cannot discriminate against you because you have, may have or previously had COVID-19.
They also cannot discriminate against you because you are caring for someone with COVID-19.
Your employer cannot discriminate against you because you are of a particular race. For example, your employer cannot direct you not to attend work just because of your ethnicity. However, your employer may take reasonable action if it there is a legitimate reason to do so such as to protect the health and safety of other employees or customers.
If you or someone in your family has COVID-19, your employer should consider what reasonable adjustments they can make to accommodate your needs, such as letting you work from home if you have to self-isolate or take care of a family member at home.
However, if you are not able to perform the inherent requirements of your role because you are unwell from COVID-19 or caring for someone who is unwell with COVID-19 your employer may require you to take paid or unpaid leave. Your employer may also require you to provide a medical clearance before allowing you to return to work.
You are protected from discrimination if you work full-time or part-time, are an on-going, fixed term or casual employee or an independent contractor.
If you are faced with a situation like this, please get in touch with the Workplace Advice and Support team via firstname.lastname@example.org as soon as possible.