IEUA-QNT MEMBER ADVISORY: COVID-19
To go to the COVID-19 Resource Hub >> click here.
The real potential for COVID-19 to spread more widely in Australia raises questions for workers regarding their rights and entitlements under scenarios ranging from work closure to forced quarantine.
The IEUA-QNT will represent members in the terms outlined below.
This advice will be revised as new updates from Queensland Health become available.
WORK HEALTH AND SAFETY LAWS
Employers are required to provide healthy and safe work, so far as is reasonably practicable. The obligation on the employer is to provide safe/healthy “work”, whilst workers are at work. There are also obligations for an employer to monitor, so far as reasonably practicable, working conditions and the health of workers.
Public health measures are not based on what is ‘so far as reasonably practicable’, but rather a precautionary approach which includes rapid detection, rapid response and then control of sources of infection.
Employers have an obligation to provide information and training for workers regarding potential health risks. This will apply differently across schools e.g. where there are clear infection control procedures in a boarding facility and a day school where the general health advice will be applicable.
If current measures are unable to prevent cases of community acquired infection, employers will have obligations to ensure that workers are not exposed to known cases or contacts. Employers will be required to provide any contacts of cases to public health authorities.
Workers also have obligations to take reasonable care that their acts or omissions do not adversely affect the health of other persons. In the circumstances of an infectious disease/ public health threat this is relevant to those who have COVID-19, are ‘contacts’ or are ‘casual contacts’ [see Note 1 below].
Employers have an obligation to inform all staff of any WHS measures they take in relation to the safety of staff, so workers can fully comply with their own obligations to not put themselves or others at risk.
Workers have rights to refuse to carry out work if the worker has reasonable concern the work would expose themselves to a serious risk from an immediate or imminent exposure to a hazard. The worker needs to have a reasonable concern and there need to be a serious risk. Such risks may include psychosocial risks arising from potential exposure to the virus. Given the public health response, serious risk will be dependent upon if there is a risk of contact with a confirmed case. It is less clear if there is a “suspected case”.
An appointed Health and Safety Representative (HSR) who has completed Provisional Improvement Notice (PIN) training may direct a stoppage of work if the circumstances exist where this appropriate to manage the risk.
Workers who believe on reasonable grounds that their health is at risk can refuse to carry out work. In that instance they need to remove themselves from danger and stay available to undertake other work.
In broad terms, the industrial rights and obligation of most workers are set out in legislation (the National Employment Standards in the Fair Work Act), awards and/or collective agreements [see Note 2 below]. It is often necessary to look at one or more of these to determine what a worker is entitled to.
The following considerations apply to workers who contract, are exposed to or otherwise are affected by, COVID-19 outside of the course of their employment.
Various considerations, including workers’ compensation (discussed above) would apply to workers who are affected by COVID-19 in connection with their employment.
1. Workers who contract COVID-19
For a worker with a confirmed case of COVID-19, the situation is reasonably clear.
A worker on a continuing contract has the right to take accrued paid personal leave to cover any absence.
A person who contracts COVID-19 overseas and remains overseas will have the same rights; however in practical terms, some difficulties may present - particularly with respect to evidentiary requirements.
Employers, in consideration of their broader duties to their entire workforce, would have an obligation to ensure that a worker with a known case of COVID-19 doesn’t attend the workplace.
2. Workers who provide care
A worker may need to provide care if their child’s school or day care is closed. The worker may access personal leave to do so.
Paid personal leave may be taken for caring purposes, including care of children in quarantine status. Employees who have exhausted their paid personal leave can seek access to unpaid personal leave.
If the worker’s personal leave is exhausted the worker could ask their employer access other leave accruals or the employer may ask the employee to work from home in return for additional (special) leave.
Compassionate leave is also available where an illness affects a person’s family or household member.
3. Workers who may have contracted COVID–19
The situation is more complex for workers who suspect, or may be suspected of, having COVID-19.
An employer may direct a worker to remain at home until a medical clearance is obtained. If doing so, the employer would have to continue to pay that worker’s wages. This should be the course adopted when exposure or potential exposure is work related.
Some complexity arises for a worker who (responsibly) self-excludes on the basis of their thinking that they may have contracted COVID-19.
Personal leave is generally available when a worker has an illness or injury. If a worker does not attend work for fear they may have contracted COVID-19, they should seek medical advice and obtain medical certificates to assist them in claiming personal leave.
Alternately, a worker could canvas other options, such as working from home. However, given appropriate caution in endeavouring to contain the spread those workers who are self-excluding should be supported with paid special leave.
4. High risk workers
Some sectors within education will be at an increased risk of exposure. Additional guidance is available to assist those workers.
Some older workers, or workers with immune suppression disorders may be at increased risk of contracting COVID-19.
In the event of an outbreak in Australia these workers should carefully consider their need to attend work and take the necessary precautions to avoid exposure.
If necessary they may consider self-isolation and be provided with ‘special leave’ as outlined above.
5. Workers affected by a Travel Ban
A worker affected by a travel ban (who was not travelling for work) – such as the current ban on incoming travel from China – should be able to draw down on existing leave entitlements and could subsequently have
arguments to make in relation to the General Protections if they are prejudiced in seeking access to those entitlements.
A worker who was travelling for work should not lose wages as the result of a travel ban.
6. School closures and stand downs
The Fair Work Act 2009 (Cth) (FW Act) allows employers to stand down employees in certain circumstances when employees cannot be usefully employed.
This includes where the employer cannot be reasonably held responsible for a stoppage of work but needs to be for reasons beyond a mere downturn in business. In the event of an outbreak of COVID-19 in Australia, where large workplaces are shut down for quarantine purposes, it is possible that employers may seek to rely on stand down provisions.
The scale of the outbreak would need to be significant for this to occur.
The IEUA-QNT would oppose the use of stand-down provisions.
If schools are closed due to the virus, essentially the employer (either of its own initiative or based on directives from government/health authorities) is directing employees not to attend work.
Our union’s view is employees should not be forced to use accrued leave entitlements to be paid during such an absence.
There are several alternatives to stand down, which employers should instead explore. These include the provision of additional paid ‘special’ leave and access to flexible working arrangements, such as working from home.
7. Harassment and discrimination
Employers cannot discriminate against workers on the basis of race or disability (which can include disease or illness).
In addition to this, workers would have actions if they were discriminated against on the basis of being, for instance, from a country with a high incidence of the disease.
This does not prevent an employer acting in relation to a person who presents a particular risk, such as someone who has been to an affected area or who has in fact contracted COVID-19.
8. Workers compensation
Workers’ compensation is a relevant consideration for workers who contract COVID-19 in connection with their employment and is discussed.
Attributing the contraction of COVID-19 to the workplace could present difficulty if COVID-19 is widespread in the community.
While there is no community spread or while numbers are low, it will be possible to trace contacts. If a worker contracts COVID-19 and the contacts can be traced to work, the person will be able to claim workers compensation benefits for any time lost or medical care required.
This will become more difficult once there is evidence of community acquired infection, which is the case for illnesses such as influenza.
However, high risk groups such as health workers, may well be able to apply and obtain workers compensation.
It should be noted that given the requirement to self-isolate for 14 days it is likely that workers may exhaust personal leave entitlements.
It is the view of IEUA-QNT that special leave should be extended to assist all workers who are impacted by COVID-19.
9. Paid special leave and support for casuals
It is the view of IEUA-QNT that specific measures should be provided by employers to support casual workers who are impacted by COVID-19 and employers should be encouraged to provide ‘paid special leave’ for casuals.
In the interests of WHS and public safety there should be no disincentives or barriers to workers who may be impacted by COVID-19 in self-isolating.
Our union is available to provide support to any member who needs specific advice.
Email firstname.lastname@example.org or call 1800 177 938.
Other member advisories:
Acknowledgement: Covid-19 Update ACTU March 2020
If you have been overseas in the last 14 days and are feeling unwell, see a doctor immediately.
The advice below is for anyone who feels well and has travelled through high-risk countries, or been in contact with a confirmed case of novel coronavirus (COVID-19).
If you have been in, or transited through, mainland China, Iran, South Korea or Italy
• You need to self-quarantine for 14 days:
- from the date you departed mainland China or Iran
- from the date you departed South Korea (if you departed on or after 9pm 5 March)
- from the date you departed Italy (if you departed on or after 6pm 11 March).
• If you begin to feel unwell and develop a fever or shortness of breath, a cough or a respiratory illness during your period of self-quarantine you should seek immediate medical attention. Call ahead to your GP or emergency department and mention your travel history before you arrive.
• If you experience any other symptom during your period of self-quarantine you should also seek immediate medical attention. Call ahead to your GP or emergency department and mention your travel history before you arrive.
If you have been in close contact with someone who already has novel coronavirus
• You need to self-quarantine for 14 days from the last date of contact with the confirmed case.
• If you begin to feel unwell and develop a fever or shortness of breath, a cough or a respiratory illness during your period of self-quarantine you should seek immediate medical attention. Call ahead to your GP or emergency department and mention you’ve been in contact with someone with novel coronavirus infection before you arrive.
• If you experience any other symptoms or illness, perhaps due to chronic disease, during your period of self-quarantine you should also seek immediate medical attention. Call ahead to your GP or emergency department and mention you’ve been in contact with someone with novel coronavirus infection before you arrive.
A casual contact is someone who has been in the same general area as someone who has tested positive for the coronavirus while infectious.
A casual contact is someone who has had less than 15 minutes face-to-face contact with a symptomatic confirmed case in any setting; or has shared a closed space with a symptomatic person for less than two hours.
Casual contacts do not need to be excluded from work or school while well. Casual contacts need to closely monitor their health and if there are any symptoms they are advised to self-isolate and contact their doctor. A casual contact who subsequently becomes ill, will need to put on a surgical mask to prevent spreading infections to others.
Where there is potential exposure to COVID-19, workers should advise employers of exposure and the need to isolate in accordance with issued health guidance. Employers should be encouraging self-reporting of such instances and ensuring that there are not barriers or disincentives to reporting. Accordingly, in these instances employers should be providing paid leave to ensure that workers are not financially disadvantaged by making such reports.
Only the Northern Territory Catholic Sector collective agreement contains a provision for leave in certain circumstances associated with infectious diseases.