NSW COVID-19 - 23 March 2020

Essential Services/Gatherings

The NSW Government has deemed construction sites as places where essential gatherings can take place. This means construction sites are not and should not close and work should continue, unless there is specific guidance from health officials. The relevant Public Order can be seen here.

NECA’s understanding at this stage is that the only valid reason for closure is on the advice of health officials. All electrical work is currently permissible in accordance with all health and safety regulations.

NECA believes electrical contracting constitutes an essential service as set out in legislation, and will be advocating accordingly so work can go ahead when it is safe to do so.  See press release here.

The following non-essential services must close from midday today:

• Pubs, registered and licenced clubs (excluding bottle shops attached to these venues), hotels (excluding accommodation)
• Gyms and indoor sporting venues 
• Cinemas, entertainment venues, casinos, and night clubs
• Restaurants and cafes will be restricted to takeaway and/or home delivery
• Religious gatherings, places of worship or funerals (in enclosed spaces and other than very small groups and where the 1 person per 4 square metre rule applies).

Further details can be seen here.

Essential Energy to allow some outages

NECA understands that Essential Energy will shortly release guidelines that will mean not all planned work is cancelled and some ASP outages can still go ahead.

This comes after Essential announced it would stop all outages early last week.  NECA has been working with Essential so some work can go ahead and we continue to do this as a priority.

We ask members to be patient and adhere to any additional health and safety rules set by Essential.  As a network operator, it is critical it keeps its workforce free from COVID 19.  We believe this can be done while allowing outages to take place.

ASP members should have received direct communications from Essential and the latest updates can be seen here: https://engage.essentialenergy.com.au/level1asp

NSW Government stimulus  

On 17^th March the NSW Government announced a $2.6bn stimulus, including the following measures to support business.  Please note these need to be legislated and are not yet available to claim.  However, NECA is reallocating colleagues whose sole focus will be helping members access support.

 Business support and jobs

• $450 million for the waiver of payroll tax for businesses with payrolls of up to $10 million for three months (the rest of 2019-20). This means these businesses will save a quarter of their annual payroll tax bill in 2019-20
• $56 million to bring forward the next round of payroll tax cuts by raising the threshold limit to $1 million in 2020-21
• $80 million to waive a range of fees and charges for small businesses including bars, cafes, restaurants and tradies
• $250 million to employ additional cleaners of public infrastructure such as transport assets, schools and other public buildings
• more than $250 million to bring forward maintenance on public assets including social housing and crown land fencing
• $500 million to bring forward capital works and maintenance.

Details can be seen here.

Health advice

The latest health advice from the NSW Government can be seen here.

Relevant employment legislation

This situation is presenting unique challenges in terms of employment legislation. 

Fair Work has developed helpful FAQs which can be seen here.

NECA is also advising members and contact details are at the foot of this message.

We have also developed the below guidance on Standing Down employees.

 As at 22 March 2020 at 9:30pm, NECA understands, from a Federal Government point of view, that offices, construction sites and the like will continue to operate for the time being. It should be noted that the individual State Governments may make particular rulings with respect to their own States.

Stand Down under the Fair Work Act

Section 524 of the Fair Work Act 2009 (Cth) (FW Act) provides as follows:

1. An employer may, under this subsection, stand down an employee during a period in which the employee cannot be usefully employed because of one of the following circumstances:

1. industrial action (other than industrial action organised or engaged in by the employer);
2. a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown;
3. a stoppage of work for any cause for which the employer cannot be held responsible.

…

3. If an employer stands down an employee during a period under subsection (1) the employer is not required to make payments to the employee for that period.

In summary, an employee can only be stood down without pay if they cannot be usefully employed because of a stoppage of work (in the case of COVID-19) for any cause for which the employer cannot reasonably be held responsible for. Employers may allow employees, during a stand down period, to use accrued annual leave, RDO’s or long service leave entitlements (if applicable). Further, employees will continue to accrue leave entitlements as usual.

An employer’s decision to stand down employees should be treated cautiously and employers should seek specific advice about their specific circumstances.  For a stand down to occur, the employer must be able to show the following:

1. there is a stoppage of work;
2. the employees to be stood down cannot usefully be employed (which is not limited to the work the employee usually performs); and
3. the cause of the stoppage must also be the one that the employer cannot be reasonably responsible for.

It should be noted that employers cannot stand down employees simply due to a lack of work or a deterioration of business conditions. Further, an employee cannot be stood down because they have contracted COVID-19, but rather should be paid under the relevant employee’s personal leave entitlements (if any). Examples for which an employee may be stood down include (but are not limited to):

1. if there is an enforceable government order or direction requiring the business to close (thereby resulting in no work at all for the employees to do); or
2. if there was a stoppage of work due to lack of supply for which the employer cannot be held responsible.

It should be noted that enterprise agreements and employment contracts can have different or extra rules about when an employer can stand down an employee without pay. Members are encouraged to review these industrial instruments prior to standing down any employees.

Disclaimer: This summary is a guide only and is not legal advice. For more information on legislative or contractual obligations, please contact NECA Legal on 1300 361 099 or email law.clerk@neca.asn.au.