Coronavirus COVID-19 and a FIFO Workforce in Australia - Update 3
While most of Western Australia’s resources sector has now put in place initial steps to protect its workforce and maintain operations, it is now the time to consider the next steps to preserve and maintain an effective workforce as the West Australian Government tightens the restrictions on the community in response to COVID-19.
Many resources companies have implemented or are in the process of implementing longer roster cycles to minimise changeovers, but restrictions on interstate and regional travel may force resource companies to consider further roster changes or additional local workforce recruitment.
The following update is the third in our 'Coronavirus and a FIFO Workforce in Australia' series. Links to the first two updates can be found at the end of this alert.
Further interstate travel restrictions
With effect from midnight on Sunday, 5 April 2020, Western Australia will close its borders to interstate travellers unless they meet exemption criteria. Until now, FIFO workers travelling from interstate did not need to isolate for 14 days but from midnight Sunday, while they will still be able to enter Western Australia, they will need to isolate for 14 days on arrival.
This will mean further changes for resource projects as they consider whether to extend roster swings or provide accommodation for interstate FIFO workers and their families in Western Australia until the restrictions are lifted.
Introduction of regional travel restrictions
As of 1 April 2020, regional travel restrictions have been implemented restricting travel within the state of Western Australia. Similarly to interstate travel restrictions, certain exemptions have been provided in respect of persons employed or engaged in primary industry and persons who ordinarily travel from one region to another for work purposes for regular periods according to established work schedules (such as FIFO workers).
Further movement restrictions were also effected by the Federal Government on 26 March 2020 in respect of a declared human biosecurity emergency affecting certain remote areas in Western Australia (principally the Kimberley region). Under the relevant determination, an exemption is available for a person that is entering the relevant areas for mining operations, provided the person has no signs of or exposure to COVID-19 and has not been outside Australia in the past 14 days. A person entering a designated area generally has an obligation to take reasonable steps to minimise the extent to which anyone else in the area is exposed to the person.
Recruiting a temporary workforce
Roster changes, requirements to self isolate or quarantine and restrictions on interstate and international travel, may see employers faced with a need to recruit short term or temporary employees.
While casual employees are a flexible option it is important to remember:
- Awards often contain clauses allowing for causal employees to request conversion to full time or part time employees after 12 months; and
- The issue of setting off a casual loading against entitlements to annual leave and personal leave for those subsequently found not to be genuine casuals remains unresolved.
Maximum term and fixed term contracts offer another alternative provided that employers are vigilant in ensuring such contracts:
- Are not automatically rolled over without consideration of whether the employment should be converted to ongoing or ceased; and
- Do not continue past the end date without any notification, such that the relationship becomes an ongoing employment relationship without the employer having regard to the risks.
Such contracts should clearly state an end date and the reason for the fixed or maximum term nature of the engagement. Employers should ensure that there is a process in place to ensure a review of such contracts occurs before the end date.
Labour hire is another option that will be under consideration. While a national scheme to regulate labour hire is under discussion, at this time the regulatory schemes remain state based with Western Australia yet to follow the example set in Queensland, Victoria and the ACT.
Employers should be mindful of the risks that large numbers of new employees on site can present. Employers should ensure that all inductions are carried out properly, new employees are properly integrated into the workplace and where necessary additional training and supervision is provided.
Modern award changes
With shutdowns and maintenance activities being delayed, roster cycles being extended and increasing requirements to self isolate or self quarantine the need for flexibility is increasing.
The Fair Work Commission of its own motion has moved to introduce two changes to 130 modern awards allowing for:
- two weeks unpaid pandemic leave; and
- employers and employees to agree to take up to twice as much annual leave at half the rate of pay.
The special unpaid pandemic leave is available in full immediately, not pro-rated based on the period of service and available to full time, part time and casual employees. As proposed, there is also no requirement on an employee to exhaust accrued paid leave entitlements before accessing the special leave.
While consideration was given to a variation to awards to allow employers to direct an employee to take accrued annual leave it has not been implemented at this stage. The Fair Work Commission has indicated it will expedite any application by consent between parties to vary modern awards to allow for reductions in working hours and changes from full time to part time.
Submissions are being sought on the proposed changes until Monday, April 6 2020 and the changes are likely to be made shortly after that date. The change will be in place until 30 June 2020.
The changes will make it easier for employers and employees to agree arrangements to suit their workplace in the current environment without employers taking on the risk of breach of award claims in the future.
Enterprise agreements
The Fair Work Commission has made it clear that they are available to consider urgent applications for variation of enterprise agreements to assist employers and employees to deliver flexibility to respond to the rapidly changing circumstances presented by COVID-19. Employers should be urgently considering whether a variation to an existing enterprise agreement is necessary to enable them to:
- reduce hours;
- increase roster cycles;
- direct employees to take accrued leave entitlements or to take longer leave periods at half pay;
- allow employees to take unpaid leave;
- reduce wages;
- halt pay increases; or
- implement redundancies without regard to criteria which are no longer relevant.
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;
- Providing clear communication to their employees on the risks to the business and proposed changes to working arrangements;
- Planning for necessary workforce changes over the next 2 to 3 months and commencing consultation processes if required;
- Considering likely award changes and the impact on their business; and
- Considering whether changes to enterprise agreements are necessary.
Please contact Leanne Nickels, Joanne Leveridge or David Kiel if you need assistance.
Links to previous articles in this series:
