Coronavirus COVID-19 and a FIFO Workforce in Australia - A Further Update

The following update is a continuation of our 'Coronavirus and a FIFO Workforce in Australia' publication that was previously released.

As the Australian Government and State and Territory Governments continue to implement further restrictions to respond to the threat of COVID-19, the Western Australian resources sector continues to focus on continuing operations while managing risks.

In Western Australia, the Minister for Emergency Services, pursuant to the Emergency Management Act 2005 (WA), declared a state of emergency with effect from 12 am on 16 March 2020. This allows for certain powers to be exercised including directions to be issued by the Commissioner for Police as the State Emergency Coordinator. Various directions have been issued to date, including directions issued on 24 March 2020 providing for restrictions on interstate travel.

Interstate Travel for a FIFO workforce

In Western Australia, the restrictions placed on interstate travellers include a requirement to self isolate for 14 days when someone is arriving into Western Australia.  However, the exemption for Essential Services relevantly includes:

• Persons who ordinarily live or work in Western Australia and travel interstate for work purposes for regular periods according to established work schedules (for example, FIFO workers);
• Any person who is employed or engaged in agricultural or primary industry that requires the person to be physically present in Western Australia;
• Specialists required for industry or business continuity and maintenance of competitive operations where the appropriate skills are not available in Western Australia, where the service is time critical and where the provision of the service requires the person to be physically present in Western Australia; and
• Any person who, in the course of his or her duties is responsible while in Western Australia for critical maintenance or repair of infrastructure critical to Western Australia.

However, these exemptions do not include:

• A person who is showing any Symptoms;
• A person who is a Close Contact (that is, being someone who has had more than 15 minutes of face to face contact or shared a closed space for more than 2 hours with a person who has a positive test result for COVID-19 or otherwise diagnosed with COVID-19 in the period extending from 24 hours before the onset of symptoms); or
• A person who has been tested and is awaiting a test result for COVID-19.

Symptoms are defined as:

•  A fever of 37.5 degrees or above; or
• A history of fever (including symptoms of fever); or
• Symptoms of acute respiratory infection such as shortness of breath, a cough or sore throat.

Employers should seek information from their workforce prior to commencing any travel to ascertain whether they meet the requirements for an exemption for travel to Western Australia without the need to self isolate on arrival.

Changing Roster Arrangements

Employers may be considering changes to roster cycles to minimise changeovers and reduce risks.

Awards such as the Mining Industry Award 2010 and the Professional Employees Award 2010 require employers to consult with employees and their representatives about any proposed changes to roster cycles. The consultation requirements include the provision to employees about the proposed changes and allowing employees and their representatives the opportunity to put forward their views about the proposed changes and the impact on them of those changes, including in relation to family and caring responsibilities. An employer is required to give consideration to any matters put forward.

Awards also usually require an employer to give notice of roster changes. The Mining Industry Award 2010 requires an employer to give 48 hours' notice of a change of days or start and finish times unless otherwise agreed. In the case of shiftworkers an employer is required to give 48 hours' notice of a change in shift roster or a requirement to work a different shift roster unless otherwise agreed between an employer and employee or where operational needs require.

Similar obligations may also exist in enterprise agreements and, where an employer has an enterprise agreement, it is important to ensure any such obligations are complied with. A failure to properly consult or give the required notice period of any changes can lead to breach of award claims resulting in the imposition of a civil penalty or dispute notifications to the Fair Work Commission.

Even if employees are not covered by an award or enterprise agreement, but common law employment contracts are in place, then there is a need to ensure any changes are agreed to and properly documented.

Employers should ensure that appropriate records are kept of any consultation, agreements to change roster arrangements or other changes to roster arrangements.

Stand Downs

The Fair Work Act 2009 (Cth) contains a provision allowing for workers to be stood down without pay in certain circumstances including where there is a stoppage of work for any cause for which the employer cannot reasonably be held responsible and where the employees cannot be usefully employed.

Those provisions do not apply where an enterprise agreement or a contract of employment applies to the employment which allows for an employer to stand down an employee during a period in which the employee cannot usefully be employed. In that situation, the employer needs to consider the relevant clause in the enterprise agreement or contract of employment to determine what rights of stand down exist.

However, in considering whether the stand down provisions apply, it is important to note that there must be a stoppage of work, not just a reduction, and that there must be a direct causal connection between the stoppage of work and the absence of useful work in which the employee can be engaged: See Bristow Helicopters Australia Pty Ltd v Australian Federation of Air Pilots [2017] FWCFB 487.

What should Employers be doing?

Employers should be:

• Staying up to date with the latest warnings and directives from Federal, State and Territory Governments and providing that information to employees;
• Seeking information from their employees prior to employees embarking on any interstate travel to make sure they meet the exemptions requirements to avoid any requirement to self isolate;
• Consulting with their employees on any proposed changes to work arrangements;
• Keeping written records of changes to work arrangements and consultation processes and ensuring that any necessary agreement to implement changes is obtained; and
• Taking legal advice before implementing stand downs to make sure that any stand downs meet the requirements of the Fair Work Act 2009 (Cth) or applicable enterprise agreements or common law contracts.

Please contact Leanne Nickels, Joanne Leveridge or David Kiel if you need assistance.