10.6092/issn.1561-8048/10812
The Australian regulatory response to the COVID-19 pandemic initially involved high levels of cooperation between all levels of government, the Australian Council of Trade Unions (ACTU) and key business groups. The impacts of business closures and restricted operations were quickly seen through widespread stand downs and, increasingly, layoffs of workers. A wage subsidy scheme for affected employees (JobKeeper) left out many casual and migrant workers. Norms of workplace regulation were rapidly adapted to allow businesses to adjust operations and many employees to work from home, while those working in essential sectors contended with overwork and safety concerns. The economy opened up again as the infection rate was brought under control, only to be followed by the re-imposition of even stricter controls in the state of Victoria due to a surge in COVID-19 cases. Four months into the crisis, the early consensus approach to appropriate regulatory settings for employment relations is under significant strain. Contestation over the shape and extent of industrial relations reform has re-emerged, as it becomes clearer that business interests and conservative political forces seek to utilise the pandemic to advance a deregulatory agenda.
application/pdf
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Anthony Forsyth
Italian Labour Law e-Journal
Pandemic leave
COVID-19 and Labour Law: Australia
Text.Serial.Journal
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13
National Reports
2020-04-15
2020-04-15
2020-04-15
2020-09-15
ILLeJ
Anthony Forsyth
2020/04/15
10.6092/issn.1561-8048/10812
RMIT University, Melbourne, Australia
1561-8048
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Pandemic leave
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COVID-19 and Labour Law: Australia
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COVID-19 and Labour Law: Australia                                                  Italian Labour Law e-Journal
Anthony Forsyth                                                                    Special Issue 1, Vol. 13 (2020)
anthony.forsyth@rmit.edu.au                                          Covid-19 and Labour Law. A Global Review
                                                                                                 ISSN 1561-8048
                                                                  https://doi.org/10.6092/issn.1561-8048/10812




                 COVID-19 and Labour Law: Australia
                        Anthony Forsyth*

                                                  Abstract

     The Australian regulatory response to the COVID-19 pandemic has arisen from high levels of
     cooperation between all levels of government, the Australian Council of Trade Unions
     (ACTU) and key business groups. The impacts of business closures and restricted operations
     are already being seen through widespread stand downs and layoffs of workers. A wage
     subsidy scheme for affected employees has been implemented but leaves out many casual and
     migrant workers. Norms of workplace regulation have been rapidly adapted to allow
     businesses to adjust operations and many employees to work from home. Overwork and
     workplace safety remain of concern for those in essential sectors.



     Keywords: Covid-19; Labour Law; JobKeeper scheme; Income support; Home working;
     Stand downs; Pandemic leave.




 1. General Framework.

     As the COVID-19 emergency began to take hold in Australia throughout March 2019,
 federal and state governments responded with increasingly strict measures to prevent the
 spread of the virus and protect the community. The Australian Government declared the
 existence of a human biosecurity emergency on 18 March1. State governments around the
 country declared a state of emergency within their jurisdictions2. The restrictions that
 followed began with Social Distancing Guidelines3, moving progressively to encompass the
 closure of venues including pubs, restaurants, cafes, gyms, cinemas, public sites (e.g.
 libraries, museums), etc and a ban on Australians travelling overseas (with limited
 exceptions)4; new restrictions on returning overseas travellers including an enforced 14-day

 *
   Professor of Labour Law, RMIT University, Melbourne, Australia
 1 Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020.
 2 For example, in the state of Victoria on 16 March: https://www.premier.vic.gov.au/state-of-emergency-

 declared-in-victoria-over-covid-19/ (accessed 9 April 2020). Under Australia’s federal structure, state and
 territory governments play an important role particularly in ensuring public health. Complementary
 emergency responses to the pandemic have been implemented through the National Cabinet (made up of
 federal, state and territory leaders). This article focuses primarily on the response to the COVID-19 crisis at
 the federal level.
 3 Australian Government, Department of Health, Social Distancing Guidance, 15 March 2020.
 4 Prime Minister, Update on Coronavirus Measures, 24 March 2020: https://www.pm.gov.au/media/update-

 coronavirus-measures-24-March-2020 (accessed 9 April 2020).
    Anthony Forsyth                                                                Italian Labour Law e-Journal
                                                                                  Special Issue 1, Vol. 13 (2020)
                                                                     Covid-19 and Labour Law. A Global Review
                                                                                       Section: National Reports




isolation period5; and ultimately, requiring that citizens stay at home unless they need to
shop for food and essential supplies, attend to medical or health needs, work or study (if
this is not possible remotely) or exercise (in accordance with the limits on public gatherings
of no more than two people)6.
   These measures have already had a devastating impact on Australian businesses and
workers. Early data from the Australian Bureau of Statistics show that 49% of Australian
businesses have reported an adverse impact from COVID-19, and 85% expect to be
impacted in coming months7. The enforced closure of non-essential enterprises and new
travel restrictions have resulted in mass stand downs8 of staff, and in some instances
redundancies, especially in the hospitality, retail, entertainment, tourism and aviation
sectors9. Work in many other industries is continuing, but with major adjustments to
business operations to ensure compliance with government restrictions. This includes
schools, universities, professional services, media and public administration, with the
implementation of work-from-home arrangements one of the major employment issues10.
Workers in critical areas such as supermarkets, pharmacies, hospitals, transport,
distribution centres and wider supply chains are facing different issues including greatly
increased workloads and exposure to the risk of coronavirus infection11.


2. Regulatory Interventions to Support Affected Businesses and Workers.

   The Australian Government has implemented several economic stimulus programs
since the crisis began12. The most extensive of these is the A$130 billion JobKeeper
scheme. This enables businesses with at least 30% reduced turnover to obtain a wage

5 Australian Border Force, New Arrangements for Arrivals from Overseas:
https://newsroom.abf.gov.au/releases/new-arrangements-for-arrivals-from-overseas (accessed 9 April 2020).
6 The specific rules and exceptions for these ‘Stage 3 restrictions’ vary in each state and territory. See for

example          Victorian     Government,         Coronavirus        (COVID-19)       restrictions   Victoria:
https://www.vic.gov.au/coronavirus-covid-19-restrictions-victoria (accessed 9 April 2020).
7 Australian Bureau of Statistics, Business Indicators, Business Impacts of COVID-19, March 2020 (Cat. No.

5676.0.55.003):
https://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/5676.0.55.003Main+Features1March%202020
(accessed 9 April 2020).
8 ‘Stand down’ under Australian law is similar to the concept of ‘furlough’ in the UK and USA. An employer

can stand an employee down where they cannot be usefully employed because of a work stoppage for which
the employer cannot reasonably be held responsible (Fair Work Act 2009, section 524(1)(c)). The effect of
this is that the employee remains employed but is not required to work and is not paid.
9 See for example Lucia Stein, ‘Qantas has just stood down 20,000 staff. How can they do that?’, ABC News,

19 March 2020; Patrick Hatch, ‘Star Entertainment stands down 90 per cent of staff after casinos shut’, Sydney
Morning Herald, 25 March 2020; ‘Myer announces it will close down stores and stand down 10,000 staff due to
Covid-19 crisis’, The Guardian, 27 March 2020; ‘Lonely Planet shuts Australian office, staff laid off due to
COVID-19’, Sydney Morning Herald, 9 April 2020.
10 See for example ACTU Centre for Health and Safety, COVID-19 (coronavirus): Workplace FAQs

FACTSHEET (CV01 1.3).
11 For example, members of the United Workers Union took industrial action at a warehouse supplying Coles

Supermarkets over COVID-19 safety concerns and 10-14 hours work-days: see Daniel Lopez, ‘We Can Use
this Crisis to Reconceptualize the Economy’, Jacobin, 1 April 2020.
12 See for example Prime Minister and Treasurer, Economic Stimulus Package, Joint Media Release, 12 March

2020.

https://doi.org/10.6092/issn.1561-8048/10812                                                                    2
     Anthony Forsyth                                                                Italian Labour Law e-Journal
                                                                                   Special Issue 1, Vol. 13 (2020)
                                                                      Covid-19 and Labour Law. A Global Review
                                                                                        Section: National Reports




subsidy of A$1500 per fortnight, in respect of employees as at 1 March who continue
working, are stood down from their employment or are re-hired if made redundant13. The
legislation implementing JobKeeper included provisions that effectively allow employers to
ask, and in some instances direct, employees to accept certain changes in employment
conditions that would otherwise be impermissible under awards or enterprise agreements
(e.g. a reduction in working hours to ensure the employee works only the hours equivalent
to the $1500 payment)14. The Government was originally opposed to introducing an
income support program, but relented after concerted lobbying by the union movement
and even some business groups15. The unions’ campaigning continues, to ensure that
around 2 million workers who are currently excluded can obtain access to JobKeeper
payments16. The Government has also increased income support for unemployed
Australians through a Coronavirus Supplement of A$550 per fortnight17, and made child
care free of charge (to support the child care sector and assist those who rely on child care
to continue working)18.
    Australia’s regulatory framework has been adapted swiftly to enable flexible forms of
engagement in several industries, including work-from-home arrangements, and to provide
new forms of leave for employees who need to self-isolate. Awards regulating working
conditions in the hospitality and restaurant sectors were varied by the Fair Work
Commission (FWC), enabling employees to work across job classifications; and
empowering employers to direct employees to work fewer hours than usual or to take
annual leave on 24 hours’ notice19. Similar changes have been made to the clerical award,
which now includes provisions aimed at assisting employees to manage working from
home at the same time as increased responsibility for children’s schooling20. These changes,
affecting some 3 million workers, were implemented through unprecedented cooperation
between trade union and business leaders21. In addition, the FWC has varied 103 of the 122
industry awards, inserting a new entitlement to two weeks’ unpaid pandemic leave for




13 For further details, see Australian Government, JobKeeper Payment: Frequently Asked Questions, 9 April 2020.
The JobKeeper scheme also covers sole traders (which includes many independent contractors).
14 Coronavirus Economic Response Package (Payments and Benefits) Act 2020, inserting a new Part 6-4C in the Fair

Work Act 2009.
15 Kehoe J., Government to pay workers’ wages for coronavirus, in Australian Financial Review, 28 March 2020.
16 Full-time and part-time employees are covered, along with casual employees employed on a regular and

systematic basis with one employer for more than 12 months: see Australian Government, JobKeeper Payment:
Frequently Asked Questions, 9 April 2020. This excludes many casuals who may have had regular shifts but
changed employers in the 12 months before 1 March, and migrant workers (e.g. international students and
those on working holiday or skilled migration visas) except for New Zealand citizens.
17 Australian Government, Services Australia, More financial support for people affected by coronavirus, 25 March

2020.
18 Prime Minister and Minister for Education, Early Childhood Education and Care Relief Package, Joint Media

Release, 2 April 2020.
19 Australian Hotels Association and United Workers Union [2020] FWCFB 1574, 25 March 2020; Application to vary

the Restaurant Industry Award 2010 [2020] FWCFB 1741, 31 March 2020.
20 Application to vary the Clerks – Private Sector Award 2010 [2020] FWCFB 1690, 28 March 2020.
21 Marin-Guzman D., Hotels, unions ditch work rules for jobs, in Australian Financial Review, 24 March 2020, and

Marin_Guzman D., Workers give up penalties to keep jobs, in Australian Financial Review, 26 March 2020.

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     Anthony Forsyth                                                             Italian Labour Law e-Journal
                                                                                Special Issue 1, Vol. 13 (2020)
                                                                   Covid-19 and Labour Law. A Global Review
                                                                                     Section: National Reports




employees required to self-isolate who cannot access other leave entitlements22. Many
employers have also voluntarily granted new forms of paid or unpaid leave to employees23.




Copyright © 2020 Anthony Forsyth. This article is released under a Creative Commons
Attribution 4.0 International License




22 Application to vary awards on the initiative of the Commission [2020] FWCFB 1760, 1 April 2020 and [2020]
FWCFB 1837, 8 April 2020.
23 ACTU, ‘List of employers who have agreed to two weeks special paid leave’, at:

https://www.australianunions.org.au/cv_good_employers_list (accessed 9 April 2020).

https://doi.org/10.6092/issn.1561-8048/10812                                                                  4
