Workplace COVID-19 developments - Weekly wrap-up – 24 April 2020

For most employers, this week has been a time for consolidation and planning after finally seeing a slowdown in the raft of changes by Governments and regulators in response to COVID-19.

However, there are still a number of important changes to report on this week, particularly in Victoria where the State Government passed an ‘Omnibus’ bill yesterday, making sweeping changes across many areas including environmental regulation, workers' compensation and the Courts. We outline some of the more significant (but mostly temporary) changes that will impact Victorian workplaces in our brief summary below.

Over the next few days our wonderful Sparke Helmore colleagues will also be releasing further updates on many of the other changes introduced in Victoria including to residential and commercial tenancies and planning laws, so stay tuned for those. 

It hasn’t been a completely quiet week on the national stage though, with the JobKeeper rollout continuing and key application dates now only days away. We outline these important requirements in the below summary, as well as provide a brief overview of the first applications made by employers to the Fair Work Commission to vary redundancy pay since the outbreak of COVID-19. We round out this week’s update with a short piece on proposed COVID-19 workers' compensation changes in NSW and SA. 

As always please reach out if you have any queries. Also keep an eye out on our website for insights from our colleagues, including COVID-19 related articles this week from our Banking and Finance, Cyber Risk and Commercial Insurance teams, as well as a great new podcast from our Government Commercial team talking through the many and varied issues in Government procurement and contracting in the current environment.

**In breaking news, the National Cabinet has today released nine principles to assist businesses to return to work in the COVID-19 environment. We will provide more information regarding the principles next week.** 

Stay safe.

Victorian COVID-19 changes: the COVID-19 Omnibus (Emergency Measures) Bill 

Yesterday, the Victorian Parliament passed the COVID-19 Omnibus (Emergency Measures) Bill 2020 (Vic) making sweeping but temporary changes to numerous areas of Government and regulation to assist in the response to COVID-19. 

We outline some of the more significant changes for Victorian employers below. 

Environmental regulation

In one of the biggest changes, the commencement of Victoria’s new environmental regulatory regime under the Environment Protection Amendment Act 2018 (Vic) (New Act) has been delayed 12 months. 

The New Act was due to commence substantive operation on 1 July 2020, but commencement has now been postponed to 1 July 2021. 

The Environmental Protection Agency released a statement yesterday saying that the decision to delay the commencement "is part of the government’s focus on delivering a comprehensive suite of initiatives designed to ease the burden on business, industry and Victorians as they address the impacts" of COVID-19.  

These changes mean the Environment Protection Act 1970 (Vic), associated regulations and statutory policies, including state environment protection policies and waste management policies, remain in place until at least 1 July 2021. 

No juries for criminal trials: Judge alone trials for certain offences in Victoria

Numerous changes, most to last six months, have been made to the Victorian criminal justice system in response to COVID-19. This will impact occupational health and safety prosecutions, particularly those in the County Court.

The biggest of these changes to impact workplaces is the introduction of Judge alone trials for indictable offences. This change brings Victoria into line with other States that already hold Judge alone trials for certain indictable (serious) criminal offences. However, the temporary change will only apply in Victoria where all accused parties consent and the Court considers it is in the interests of justice to make the order. For the first time in Victoria, this means safety prosecutions heard in the County Court may be determined by a Judge alone, rather than by a Judge and jury. 

A new right of appeal relating to the decision whether or not to hold a Judge alone trial has been added to the Criminal Procedure Act 2009 (Vic), and appeal procedures have been modified for appeals from verdicts in Judge alone trials. 

Other changes include the ability for Victorian courts to determine issues ‘on the papers’ without an appearance by the parties and providing Magistrates’ Court Registrars greater powers to adjourn or abridge criminal proceedings. Broad ranging changes to the Oaths and Affirmations Act 2018 (Vic) have also been made, including to allow certain things normally required to be done in the presence of another person (such as swearing and affirming affidavits) to be done by video link, and broadening the circumstances where scanned hard copies of documents and electronic copies of documents will be acceptable. 

Workers’ compensation

In the workers’ compensation area, the Bill increases the notice period for the termination of weekly payments for partially incapacitated workers at the conclusion of the 130 week period from 13 weeks to 39 weeks, with the effect that many workers will receive an additional entitlement to 26 weeks of compensation. 

This change will apply to termination notices issued on and after 1 December 2019 until six months after the legislation takes effect. 

The Bill is silent in relation to whether partially incapacitated workers may also access JobKeeper or JobSeeker entitlements. In its present form, eligible workers may be entitled to both weekly compensation and one of the new social security entitlements during the increased notice period. The Bill is silent in relation to whether employers and self-insurers will be provided with premium or payment relief respectively.

JobKeeper applications open, and first fortnightly submission dates nearing

We have reported extensively on the JobKeeper payment in our previous updates, including on eligibility requirements and on the associated changes to the Fair Work Act 2009 (Cth). 

There have been no major JobKeeper changes announced this week but importantly, enrolment for the payment opened on 20 April 2020. Prior to enrolment opening, more than 850,000 employers and sole traders had registered their interest in the scheme. 

The requirements for employers are quite complex, and there are a number of important dates and requirements fast approaching that employers should be aware of.                                                                                                                                                                                  
The first JobKeeper fortnight commenced on 30 March and if an employer wishes to make JobKeeper payments to employees for one or both of the first two JobKeeper fortnights, the Australian Tax Office recommends employers enrol before the end of April. 

Also by the end of April, the JobKeeper employee nomination notice must be sent to eligible employees to complete and return and employers must have paid each eligible employee at least $1,500 (before tax) per JobKeeper fortnight or a combined payment of $3,000 to be eligible. 

Finally, employers must reconfirm their eligibility for JobKeeper payments each month, and review and update their number of eligible employees if there have been any changes. 

Extensive resources to assist with the JobKeeper payment process are available on the Australian Tax Office website. 

Applications to the Fair Work Commission to vary redundancy pay for incapacity to pay

If an employer cannot pay redundancy pay to an employee whose position has been made redundant, it may apply to the Fair Work Commission to reduce the amount owing. Employers may also apply if the employer has obtained other acceptable employment for the employee. 

The Commission recently delivered two decisions ([2020] FWC 1897 and [2020] FWC 1912) following applications to vary redundancy pay since the outbreak of COVID-19. Both applications arose because the respective employer alleged it could not afford to pay the prescribed amount of redundancy pay due to the economic downturn attributable to COVID-19. The Commission granted one application and dismissed the other.
 
In the successful application, the employer generated zero revenue in the two months after the employee was made redundant. The employee was paid 3 weeks’ in lieu of notice and was able to find a more lucrative job just six days after his redundancy. The Commission found that the employer could not afford the full redundancy payment and that the employee was not disadvantaged. The redundancy payment was reduced from 7 weeks’ pay to 1 weeks’ pay.

In the hearing of the application that was dismissed, the employer submitted that it currently had the means to make the full redundancy payment, but was concerned about the uncertainty of its future cash flow. The Commission dismissed the application on the basis of that admission.
 
Employers should bear these provisions in mind if they are concerned about their ability to pay redundancy pay during the COVID-19 crisis. However, these decisions demonstrate that the Commission will still apply careful analysis and the existing principles in this area to any application. COVID-19 does not provide an automatic right to reduce an employer’s obligation to pay redundancy pay. 

Safety and compensation considerations – COVID-19 as a deemed workplace ‘injury or illness’? 

COVID-19 continues to change the way we work. It also may increase the potential for work-related injury and illness claims (such as for alleged exposure to COVID-19 in the course of work activities and/or psychological injury due to new activities or locations). There have been mounting calls for adaptations to the framework for assessing and determining workers' compensation claims to better support employees. 

In both NSW and SA, legislative amendments have recently been proposed seeking to insert a presumption into existing workers' compensation schemes so that employees in certain industries and workplaces (such as healthcare, education, retail and hospitality) that contract COVID-19 are automatically deemed to have sustained this ‘injury and illness’ as a result of their work. This is likely to expedite the claim approval as it will be considered a workplace ‘injury and illness’ unless there is evidence to the contrary. 

While it remains to be seen whether these (and any other) amendments will pass, employers should be mindful of the existing obligations to proactively manage potential risks to health and safety, notify workers' compensation insurers of potential work-related injury and illness claims and to facilitate any appropriate return to work arrangements. 

Additional information on the interaction between COVID-19, workers' compensation and workplace safety obligations is available on the SafeWork Australia Website.