The challenges of COVID-19 have touched every element of our lives: for most employers this has meant dramatic changes to the way their staff work and for some, it has also meant that there is insufficient work to keep all their staff meaningfully employed.

Unlike employees in gyms, pubs and clubs, schools are able to provide ongoing work for the vast majority of staff but there may be areas where this may not be feasible, such as in relation to relief teachers, casual sports coaches, music tutors, and perhaps even more critically, in relation to some permanent staff such as school nurses, outdoor education staff, maintenance staff, and some administration staff.

Where there is insufficient work there are some brutally simple options ranging from paying individuals to stay at home even if there is no work, to terminating staff, whether by way of redundancy in the case of permanent staff, or in the case of casuals, terminating their employment after providing the requisite notice.

However, on the assumption that:

• life will return to normal at some point, and
• no one wants to lose good staff, but
• the financial reality means that neither the school nor most parents have unlimited funds, and in fact may be undergoing severe financial stress over the coming months,

there are more options and opportunities. However, not all of them will be applicable, and you may need to seek legal advice before being particularly creative.

Awards, Enterprise Agreements and Contracts of Employment

Any changes to an employee’s duties, hours, and conditions, will still need to be navigated through existing legal frameworks including Awards, Enterprise Agreements, and each employee’s contract of employment. The good news is that the Fair Work Commission and governments are very aware of the need to support employers and employees in weathering the pandemic and are making changes to improve flexibility on an almost weekly basis, so it is very important to stay up-to-date with any changes.

The Fair Work Commission has already made changes to Awards to facilitate responses to COVID-19, and will be having expedited hearings in relation to changes to Enterprise Agreements, although the rules for changing Enterprise Agreements midstream are currently rather onerous. Changes to an employee’s contract of employment can be more directly negotiated and agreed between the parties.

JobKeeper Payment

The Federal Government’s JobKeeper Payment has received enormous publicity and a huge injection of taxpayer money and is designed to enable businesses to retain both permanent and long-term casual employees even if their hours have been cut as a result of COVID-19. This is a temporary scheme applying to eligible employers who have an aggregated turnover of less than $1 billion and whose estimated turnover falls or is likely to fall by more than 30 percent (or aggregated turnover of $1 billion or more with a 50 per cent fall in turnover). The employer must have been in an employment relationship with eligible employees as at 1 March 2020 and be able to confirm that each eligible employee is currently engaged in order to receive JobKeeper Payments.

The Fair Work Act has also been amended to support the JobKeeper Payment by providing employers who are eligible to participate in the JobKeeper Payment scheme to be able to direct employees to change hours of work, including days and times of work, annual leave arrangements, performance of duties, and the location where their work is to be performed.

On the current definitions, most schools are unlikely to be “eligible employers” as given the nature of school fee payments it would be difficult to establish that the school’s estimated turnover will drop by 30 per cent. However, the amending legislation provides the federal Treasurer with the power to vary eligibility requirements without the need to recall Parliament.

The JobKeeper Payment could however be available to any contractors, including self-employed tutors, who provide services to the school who meet the eligibility criteria.

For more information see the JobKeeper Payment details on the business.gov.au website.

Stand Down

The Fair Work Act provides that standing down staff - directing staff to take leave without pay - is only permissible where the employee cannot be usefully employed as a result of something for which the employer cannot reasonably be held responsible. The closure of gyms and pubs as a result of an enforceable government direction is an example where a stand down would be legitimate. Original advice from the Fair Work Ombudsman was that stand downs as a result of a downturn in business were not justifiable, however, the most recent advice from the Fair Work Ombudsman has broadened the reasons justifying a stand down.

We understand that a number of schools have taken this step and those stand downs have been challenged in the Fair Work Commission. It is likely that there may be further changes to the Fair Work Ombudsman’s advice as the effects of the pandemic spread, and decisions emerge from the Fair Work Commission. In addition to the Fair Work Act provisions on stand downs, some Enterprise Agreements may also contain stand down provisions which would need to be considered in the current circumstances.

A key point to note is that employees should not be stood down if they can be “usefully employed” by being provided with alternative duties. Consulting with staff is an important step in finding alternatives to stand downs.

Taking Leave

Where a school is unable to provide sufficient work for permanent staff, one option is for the employee to take paid or unpaid leave. Unfortunately, this option is not available for casual staff. The conditions for directing staff to take leave or staff opting to take leave is subject to restrictions in contracts of employment, and applicable Awards and Enterprise Agreements, however, this is a time when there appears to be greater leeway being allowed provided the employee and the school agree.

Last week the Fair Work Commission amended most Modern Awards, including the Educational Services (General Staff) Award, to enable annual leave to be taken at half pay for twice the duration (for example, four weeks of annual leave at full pay can be taken as eight weeks of annual leave at half pay). The Educational Services (Teachers) Award was also amended but only as it applies to teachers in early childhood services operating for at least 48 weeks per year. Annual leave can generally be taken once it has accrued and both parties agree to the timing.

The conditions for taking long service leave are more rigid, with legislation in each state/territory providing that the employee must have worked for a lengthy period (five years, seven years or even 10 years) before they can access any pro rata long service leave. However in the last few weeks, for example, the New South Wales Long Service Leave Act was changed on a temporary basis as a response to COVID-19. The NSW Act now allows long service leave to be taken with a much shorter notice period as well as in shorter blocks (one day at a time) where this has been agreed between the employer and the employee. The Victorian Long Service Leave Act already allows for long service leave to be taken one day at a time, or for twice as long as the period to which they are entitled, at half their ordinary pay.

Where there is still some work for an employee but not enough for their full day or shift, it may be possible for the employee to be paid for the actual hours worked and take annual leave or long service leave for the balance. An example would be where the person originally worked for five days a week, but there is now only enough work for three days, then the person is paid for the three days and takes the remaining two day a week as paid leave.

It is also an option, and worth discussing with employees, for employees to take leave without pay for that balance of time when they cannot be gainfully employed, for example, where they need or want the time to care for children who are not at school or childcare.

Changes in Hours

Some staff may welcome the opportunity to reduce their hours temporarily or move to part-time work to be with children who would normally be in school or childcare. This may be worth considering for teachers who may need to spend more time with their own children; if they reduce their hours by moving to part-time, the slack could be taken up by job-sharing with casual/relief teachers.

Changes in Duties

A school may consider altering the duties of both permanent and casual staff when their duties are no longer sufficient to maintain their original hours of work. In the case of permanent staff this is subject to any restrictions in their applicable contract of employment, Award or Enterprise Agreement. However, if this is done in consultation and by agreement with affected staff, this can be an excellent way of building skills and sustainability by having a number of people able to perform particular functions and roles– which is particularly important should key people become ill.

The usual requirements still apply when assigning new duties: the employee must be able to perform the work safely, and it must be within their capacity, expertise and any necessary qualifications/licensing/registration requirements. Staff may require further training and supervision to enable this to be done successfully. Naturally, any working with children checks or equivalent must also be observed.

Rates of pay may need to be considered in relation to casual staff who may be asked to perform work which attracts a lower pay rate.

Project Work

Where staff have the ability and now have the time, this is an excellent opportunity to complete those projects which were ‘nice to have’ but for which there used to be no time during the normal day. This could be an excellent time to conduct audits, such as about personal information collected and retained by the school, review processes or policies, review and catalogue records and set up registers such as risk registers, compliance registers, chemical registers or hazard registers. It is also a wonderful opportunity to go through the mysterious boxes at the back of the storeroom to see if they contain useful information that should be converted into electronic format or a school history or shredded.

Professional Development

Perhaps the most positive way of using spare time is to look at areas of professional development that would assist the school and its staff to better meet the needs of the future. This is also an opportunity to discuss expanding the skills and duties of some staff which may improve their longer term career prospects as well as benefiting the school. Online courses, both short and long, are becoming more prevalent as more and more organisations adapt to the COVID-19 restrictions and opportunities.

Interim Final Thoughts

COVID-19 has forced the most dramatic review of how we conduct our work. Not only do we have to manage the challenges of finding the best way of delivering education to our students within the restrictions of social isolation and interconnectivity, but schools have to find a way of navigating the needs of individual staff members who themselves may be balancing hugely changed working conditions while simultaneously supervising their own children, all while ensuring they have enough toilet paper.

As with all disruptive events, there are opportunities. Some staff will welcome reduced hours because this will give them more time with families or their hobbies. Some will welcome the opportunity to learn new skills or take on new duties that they would not otherwise have had the chance to do. This won’t work for everyone but it is enough to start a conversation which could lead to better outcomes now and in the longer term.