Your Rights at Work
Where do I look to find out my work rights?
Minimum terms and conditions for most workers are contained in the National Employment Standards in the Fair Work Act 2009 and the relevant modern award – typically in hospitality this is the Restaurant Industry Award, Hospitality Award, or Clubs Award.
You may have a collective or enterprise agreement in your workplace which provides more generous entitlements. Terms and conditions of your work may also be found in a written contract of employment or workplace policies and procedures.
You have the right to healthy and safe work. Each State and Territory has Work Health and Safety (WHS) laws which provide rights for workers.
The United Workers Union (UWU) is assisting its members in hospitality across Australia, and UWU’s Victorian hospitality initiative, Hospo Voice, is supporting Victorian workers.
What does my employer need to do?
WHS laws require employers to take every step they reasonably can to eliminate or minimise the risk of workers and others contracting COVID-19. This will require employers to have a COVID-19 workplan containing a range of control measures, depending on your venue.
There is no vaccine currently available for COVID-19. The most effective control is to identify potential carriers of the virus and support them to self-isolate to avoid exposing others.
Employers must genuinely consult workers and unions on measures to control the health and safety risks of COVID-19. Workers should be provided with clear direction and guidance about what is expected of them, in particular:
- workers should know when to stay away from the workplace
- what action to take if they become unwell, and
- what symptoms to be concerned about.
We know that the most effective action employers can take is to ask employees to identify potential exposure to COVID-19 and to financially support them to self-isolate with paid special leave.
Financial disadvantage presents a serious barrier to self-reporting and self-isolating, particularly for casuals and low-paid workers, and therefore presents a risk that needs to be controlled through the provision of paid special leave. Casual and low-paid workers who do not have access to paid leave, particularly those with dependents, are likely to experience serious financial pressure to continue to come to work. No worker should be forced to choose between health and safety measures and their paycheck.
Can I refuse to work?
Under WHS laws you have the right to refuse work or cease work if there is a reasonable concern that you would be exposed to a serious risk to your health and safety from an immediate or imminent hazard. A serious risk of exposure to a COVID-19 infection would meet this definition.
If you have an elected HSR at your workplace, an HSR is authorised to direct a worker to cease unsafe work if they have a reasonable concern that a worker would be exposed to a serious risk to health and safety from an immediate or imminent hazard. HSRs should consult and attempt to resolve the issue with the business first, unless the risk is so serious and immediate or imminent that it is not reasonable to consult. If work ceases or is refused, you and/or the HSR must tell your employer as soon as possible.
You may be asked to carry out alternative work, such as working from home. You should comply with this direction, as long as it is safe and appropriate for you to do so.
An HSR may also choose to issue a Provisional Improvement Notice (PIN) which requires an employer to make a change to a work practice to reduce or eliminate a risk. HSRs must first consult with the employer about the issue. After the HSR has issued the PIN, the employer has 7 days to fix the health and safety matter. If the issue is still unresolved after 8 days the HSRs has the right to call in an inspector.
I’m sick and I’ve been directed to stay at home. Is this legal?
Employers can direct employees who have COVID-19 or who are at risk of infection not to come to work for a period of time or until they are medically cleared.
Such directives must be lawful and reasonable, which means employers must act fairly based on factual information about genuine health and safety risks, including the Australian Government’s health and quarantine guidelines. WHS laws require workers and other people at workplaces to comply, so far as they are reasonably able, with a reasonable instruction given by an employer. Workers have a duty to take reasonable care for their own health and safety and to not adversely affect the health and safety of others.
If you are directed to stay at home for health and safety reasons, you must be paid. Employers are not entitled to stand employees down without pay in these circumstances. You should not be asked to use your annual leave or long service leave, as this is for rest and recreation.
If you are a casual employee, you should ask your employer for paid special leave for the period of isolation. You should put this request in writing. You should consider whether there is an enterprise or collective agreement, award, employment contract or workplace policy that affects your entitlements. Even if you do not have an entitlement to apply for l paid special leave in an enterprise agreement or workplace policy, there is nothing stopping your employer from agreeing to provide paid special leave on request.
What if I’m stuck overseas due to a travel ban or required by the government to quarantine or self-isolate?
You should notify your employer of this situation as soon as practicable and request access to paid leave. You should be able to use your existing leave entitlements if you wish. If you have none, you should apply in writing for paid special leave. You should not lose wages as the result of a travel ban.
I’m not sick but I’ve been directed to self-isolate. Is this legal?
Employers may be able to direct employees to self-isolate, so long as such a directive is lawful and reasonable, permitted by any applicable enterprise agreement or award, and necessary to meet WHS obligations.
If you are prevented from coming to work, you must be paid your ordinary salary while the direction applies. Casual workers are encouraged to make a written application for special leave to support them financially during any employer-directed isolation period.
I’m not sick with COVID-19 and do not meet the criteria for quarantine, but I would prefer to stay home.
There are a number of reasons why a worker might wish to take a cautious approach and stay away from the workplace, including their age or a medical condition, or having responsibility for the care of a newborn. If there is a medical reason that you need to avoid attending work, you should obtain medical evidence and apply for paid personal/carers leave if you have it available to you. If you do not have paid personal/carers leave available, or are not entitled to access it in the circumstances, you should apply to your employer for paid special leave in writing, providing reasons. This is not yet a universal entitlement, but there is nothing preventing an employer from implementing a best practice response and agreeing to provide paid leave to all their workers impacted by COVID-19, including casuals. Workers seeking to self-isolate should not be financially disadvantaged for doing so.
You may also ask your employer for a temporary change to your working arrangements, including hours and location. In light of government directives encouraging social distancing, employers should make reasonable accommodations to facilitate working from home. Where this is not possible, employers should extend paid special leave to workers to protect them and others from a risk of infection.
Under WHS laws, you are permitted to refuse or cease work because you have a reasonable concern about an imminent risk to your health or safety. If you are given a reasonable direction to perform alternative work (such as working from home) you should comply with it, as long as it is appropriate and safe for you to do so.
How much sick leave do I have?
Under the NES all employees, other than casual employees, are entitled to a minimum of 10 days of paid personal/carers leave per year. Enterprise agreements, awards, employment contracts or workplace policies should be reviewed in case they have more generous conditions for workers, including casuals.
Your personal/carers leave entitlement accrues progressively throughout the year and accumulates from year to year. Your employer must legally keep a record of how much personal/carers leave you have accrued. An employer cannot force you to use your personal/carers leave. You can access personal/carers leave if you cannot work because of an illness or injury; or if a member of your immediate family or household member requires care or support because of an illness or injury or ‘unexpected emergency’.
Unless otherwise provided in your award or an enterprise or collective agreement, personal/carers leave must be paid at a minimum at your base rate of pay for your ordinary hours of work. Full-time and part-time employees can take unpaid carers leave if they have no paid carers leave left.
You must give your employer notice that you are taking personal/carers leave ‘as soon as practicable’, which can be after the leave has already started. If your employer asks for it, you must provide ‘evidence that would satisfy a reasonable person’ that you or someone you are caring for is ill or injured or experiencing an unexpected emergency. This could include for example a doctor’s certificate or a statutory declaration.
Given the requirement to self-isolate for 14 days, it is likely that workers may exhaust accrued personal/carers leave entitlements. If you are impacted by COVID-19 and have used all your personal/carers leave, you should apply in writing to your employer for paid special leave so that you are not financially disadvantaged.
Schools and childcare may be closed for an extended period and I need to care for my children.
Employers should take positive steps to assist workers to manage any increased family responsibilities arising from COVID-19. Under the Fair Work Act, you can request a change to your hours or work location if you are responsible for caring for a sick child or adult, or a person with disability or a person who is frail and aged. Your employer must discuss and genuinely consider your request and only refuse on reasonable business grounds. A written response must be provided to you. You have this right if you are a casual or non-casual worker with at least 12 months service.
It is against the law for an employer to terminate your employment or treat you less favourably because of your family responsibilities. Contact the United Workers Union (or Hospo Voice, in Victoria) if you believe you have been discriminated against based on increased family responsibilities arising from COVID-19.
Do I have to use my annual leave or long service leave?
Under the NES all employees, other than casual employees, are entitled to a minimum of 4 weeks paid annual leave per year. Shift workers are entitled to a minimum of 5 weeks paid annual leave per year. Depending on your length of service and industry, you may have access to long service leave, including long-term casuals in some states and territories.
Annual leave and long service leave is for rest and recreation. You cannot be directed to access your annual leave or long service leave to cover the cost of isolation or quarantine periods.
Can my boss refuse my annual leave request during the pandemic?
Your boss can only refuse annual leave on operational grounds – not for financial or other reasons. If you are not working, there is no good reason to not pay you your annual leave. If your boss fails to do so they are breaking the law; Hospo Voice members have access to tools and letters to fight underpayment, join here: https://www.hospovoice.org.au/join
I’m a casual employee or work cash-in-hand. What am I entitled to?
Casual employees are generally not entitled to paid personal/carers leave or annual leave. However, if you are directed by your employer not to attend work, or you need to self-isolate, then you should ask your employer in writing to provide special paid leave to cover the period of isolation or quarantine. This is not yet a universal entitlement, but there is nothing preventing an employer from implementing a best practice response and agreeing to provide paid leave to all their workers impacted by COVID-19, including casuals. Workers should not be financially disadvantaged because of quarantine or self-isolation.
Workers in cash-in-and informal arrangements (e.g. you work $20ph cash-in-hand as a dishie, with no documents ever signed) are likely casual employees, and have minimal entitlements to an ongoing job or to leave.
Casual workers caring for someone with COVID-19 can access up to 2 days of unpaid compassionate leave per occasion if an immediate family or household member requires care or support because of an illness or injury or ‘unexpected emergency’. Casual workers with at least 12 months service are also able to request flexible work arrangements to care for a sick child or adult, or a person with disability or a person who is frail and aged.
Enterprise agreements, awards, employment contracts or workplace policies should be reviewed in case they have more generous conditions for casual workers.
I’m being treated unfairly because my employer suspects that I have COVID-19.
A worker must not be harassed or unlawfully discriminated against because of an illness or suspected illness, or because of their race, colour, national extraction or social origin. Under the Fair Work Act, a worker must not be fired because they are temporarily absent from work due to illness or injury.
Employers are permitted to act lawfully and reasonably to mitigate health and safety risks to workers and others. You should contact the United Workers Union (or Hospo Voice, in Victoria) if you feel you have been unlawfully discriminated against or harassed because of COVID-19 impacts.
Can I get workers’ compensation benefits if I’m sick?
Workers who contract COVID-19 in the course of their employment will be able to claim workers’ compensation benefits for any time lost or medical care required.
It may be challenging to prove the required connection with work in light of the growing number of community infections. You should contact the United Workers Union (or Hospo Voice, in Victoria) for assistance if you are unable to work due to a COVID-19 infection caused by work.
How can I access any government benefits?
This is changing regularly. If you are currently not unemployed and not a user of Centrelink then there relevant updates for you are accessible here.