What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 23 March 2020 – 29 March 2020

Coronavirus and Discrimination Laws

Law firm Gilchrist Connell has published an information sheet updating employers on their rights amid the COVID-19 pandemic. The information sheet, authored by solicitors Joel Zyngier, James Duffy and Sarah Wood, answered the following:

Do Employers Have to Allow Employees to Work from Home? What Are Their Obligations to Employees When Working from Home?

In certain instances, employers must allow employees to work from home. This includes:
• if the employer cannot provide a safe working environment otherwise; and
• if it would be safer for the employee and their colleagues for them to work from home.
Employers may also be required to permit working-from-home arrangements where an employee requests it for family or carer reasons. Employers must be mindful not to dismiss a claim for flexible working arrangements where that would amount to discrimination. Section 65 of the Fair Work Act 2009 (Cth) provides that certain eligible employees may request flexible work arrangements and their employers can only refuse on reasonable business grounds. State and territory anti-discrimination and equal opportunity legislation also generally require the employer to grant such a request, unless it would impose an unjustifiable hardship upon a business to do so.

Is Direct and Indirect Discrimination A Risk?

Yes. Employers should ensure they take all necessary steps to not breach anti-discrimination and equal opportunity legislation during this crisis. This has already emerged as an issue, with the Australian Human Rights Commission (AHRC) confirming that it has received COVID-19 related discrimination complaints from workers of ethnic, or perceived ethnic backgrounds. This is a reminder that conduct may be unlawful even if it arises from a genuinely held fears about COVID-19.
To ensure employers are not subject to discrimination complaints, they should ensure they do not make any directions based on an employee’s race or ethnicity. Such directions include instructing an employee to work from home or to refrain from attending work. Employers should also ensure that directions and decisions based on an actual or perceived medical condition are made in line with anti-discrimination legislation.
Additionally, employers must be cautious to avoid indirect discrimination. In other words, they must not implement policies, requirements or conditions which appear equal, but which disproportionately discriminate against certain groups of employees. These types of policies, requirements or conditions are only permitted when they are reasonable in all the circumstances.

Can Employers Require Employees to Stay Away from The Office?

Yes, employers can require employees to refrain from coming into work. However, this is only that action is reasonably necessary to reduce or eliminate the risk of COVID-19 at the workplace. Occupational and work health and safety legislation in each State and Territory require employers to provide and maintain safe work environments and adequate facilities so far as is reasonably practicable. This duty now extends to minimising the risk of contracting and spreading COVID-19 in the workplace. One way an employer can discharge this duty is by directing some or all employees to work from home. Alternatively, workplaces can encourage working-from-home arrangements on a rotating basis. For example, spending half of the week in the office and the other half at home, or employees rotating in the office in weekly cycles.

Do Employers Have to Pay Employees Who Are Directed Not to Attend Work?

Mostly, yes. An employee who is directed not to attend work in order to protect the health and safety of others must be paid, even if they cannot be provided with work otherwise.

If an Employee or Their Family Member Is Sick With COVID-19, What Do Employers Have to Do?

Employees who are sick with COVID-19 or have been in close contact with infected persons must not attend work. It is incumbent on employers to send sick employees’ home in order to discharge their OHS and WHS duties. However, employers must be careful to avoid unlawful discrimination in doing so. In sending employees home they must ensure that they are acting reasonably, based on government and health practitioner advice at the time.