Issue: November 2020

AUSTRALIA - COVID-19 and Recent Developments in Australian Labor/Employment Law

By: Paul Harpur (faculty, Queensland University – T.C. Beirne School of Law) and Mitree Vongphakdi. This research was assisted by the Social Science Research Council's Just Tech Covid-L9 Rapid Response Grants, with funds provided by the Ford Foundation and the MacArthur Foundation.

COVID-19 and Australia 

As at November 2, 2020, Australia has experienced a total of 27,590 cases resulting in 907 deaths, whereas the United States has experienced 9,024,298 cases resulting in 229,109 deaths. In response to the pandemic Australian Federal and State governments supported a range of lock downs and strong community tracing. In November 2020 a significant number of States have had recorded long periods of no new community transmissions and transmissions from known sources.

At one-point, Melbourne, a city of 5 million, was reporting daily infection counts as high as London. At the time of writing, Melbourne’s daily count consistently remains in single digits and has days of 0 new cases. In contrast, London’s daily count still hits the thousands. Our home State of Queensland’s daily infection counts also hit double digits through March and April, but is now consistently having no new cases.

Australia is largely living with the threat of COVID-19 rentering, but is now opening up.

Economic indicators remain moderately worse off than before the pandemic. The national unemployment rate currently stands at 6.9 percent, having increased from 5.1 percent in February. The S&P/ASX200 is also currently trading at about 5900 points, when it consistently hit above 7000 points back in February.

Supporting Employers and Employees DUring the COVID-19 Shutdown

The Australian Government enacted workplace reforms to support employers and their employees through the pandemic, the most profound of these being the JobKeeper wage subsidy scheme. Introduced in March, under JobKeeper, businesses and organisations with a sufficient reduction in turnover were entitled to fortnightly payments of $1,500 per eligible employee or business participant. The same amount applied to every eligible employee, regardless of hours worked or standard pay rate. This scheme continued unchanged until 28 September 2020.

In light of the improving situation, and no doubt their concern on perpetuating unsustainable government expenditure, the Australian Government made changes to the scheme which took effect on 28 September 2020. Under JobKeeper 2.0, two tiers of payments were introduced, and businesses and organisations were required to re-test their eligibility. Employees of eligible businesses and organisations, working more than 80 hours per fortnight would be eligible for $1,200 every fortnight, whereas employees working less than 80 hours would be eligible for $750. These tiers are to be stepped down to $1,000 and $650 from 4 January 2021. The scheme is scheduled to cease operation at the end of March 2021.

Other reforms were also introduced in relation to pay and leave entitlements for almost all workers. Employees prevented from working by being required to self-isolate, or as a result of government restrictions, are now entitled to at least two-weeks unpaid pandemic leave. Additionally, workers may now elect to take their annual leave at half-pay and double their time off work.

To support flexibility for employers, changes have also been made to laws around standing down workers. Employers are now allowed to stand down employees where the business has been closed following a government direction or where there is a stoppage of work due to lack of supply. Where the previous circumstances do not apply, employers enrolled in JobKeeper have been given wide discretion when directing workers to stand down.

Additional reforms to paid leave entitlements, specific to workers employed in residential aged care facilities have also been introduced. Workers prevented from working as a result of reasons such as being required to self-isolate, exhibiting symptoms of COVID-19, or government action such as the closure of a facility, are now entitled to take up to two weeks paid pandemic leave. Following a recent decision of the Fair Work Commission, the operation of these entitlements have been extended until the end of March 2021. Further, unpaid leave arrangements for health workers outside the aged care sector have also been extended until the end of March 2021.

Workplace Regulatory Responses as Australia Controls the COVID-19 Pandemic

In response to the improving situation, the Australian Government also recently announced a national 3-step plan to ease pandemic restrictions, giving discretion to individual states and territories on when to implement these changes. These changes affect how and when employees are allowed to return to work or the workplace.

Employees are still allowed to work from home if they desire, but workers are increasingly coming into work. Universities have been predominantly delivering classes online for Semester 2 2020, however, their facilities have remained open to students and there is a strong trend towards reopening campuses. Here at the University of Queensland, face-to-face classes and assessment have been facilitated where possible, and staff have begun returning to work on-site. Of course, all working arrangements remain subject to evolving workplace health and safety guidelines.

All workers have been affected by the pandemic and subsequent responses, however, workers with particular vulnerabilities have been left more worse off. The effects of the pandemic have highlighted the power imbalance and systemic disadvantaged faced by people with disabilities, and this has motivated agencies, such as the Australian Human Rights Commission, to release guidelines and take measures to protect these workers.

Overall, the Australian legislative response to the pandemic has been quick and wide-reaching. This has placed Australia in a strong public health and economic position.