Business NSW has formally written to the state’s treasurer, Dominic Perrottet, seeking urgent changes to legislation to enable workers to access their accrued long service leave now, potentially saving thousands of jobs.
Under the current act, a worker starts accruing long service leave after five years of service, but cannot access that accrued leave until they hit 10 years of continuous employment.
“As part of our proposed changes, to operate only during the pandemic, staff will be eligible to take any accrued leave as a way of potentially keeping their job,” said Business NSW chief executive Stephen Cartwright.
“In my correspondence with the Treasurer, I told him that many of our members are keen to access accrued long service leave provisions by asking staff to take that leave rather than having to stand them down or make them redundant,” Mr Cartwright said.
He explained that based on expert advice from leading workplace relations law firm Australian Business Lawyers & Advisors, it is clear that a simple amendment to section 4 of the act could be developed to achieve this change.
Mr Cartwright also underlined that the amendment Business NSW is seeking is intended to be temporary and would cease to operate at the end of the global pandemic.
“This proposed legislative change is aimed at giving businesses additional options to draw down on their existing provisions, maintain some cash flow and keep employees in ongoing employment during these unique circumstances.
“Some businesses may even be able to keep people employed if they can come up with an arrangement to work for, say, three days a week and then have their employee take the rest of the week as part of their long service leave,” Mr Cartwright explained.
While he praised the state government’s efforts to date, Mr Cartwright said that this initiative could save thousands of jobs.
“We know these are extraordinary times and the government is under enormous pressure to keep finding magical solutions. The Treasurer and Premier have been strong in their delivery of support packages for businesses so far, but this is one initiative that won’t actually cost the taxpayer anything but could save thousands of jobs,” Mr Cartwright said.
As bars, restaurants and clubs shut their doors at noon on Monday, it is estimated that tens of thousands of workers have been left jobless.
Commenting on the closures, the Australian Hotels Association said in a statement that the shutdown would have “a devastating effect” on the 250,000 people it directly employs.
“We saw what an important role hotels play in their communities during the recent bushfires across large parts of the nation. Today’s closure is an unprecedented move which will have a big social impact for months to come,” said AHA national CEO Stephen Ferguson.
Also responding to the closures, the Media, Entertainment and Arts Alliance (MEAA) begged employers to explore “creative ways” to keep people in work rather than “pushing them onto the welfare system”.
“We are concerned that no conditions requiring employers to keep workers in jobs have been attached to the money set to flow to businesses,” said MEAA chief executive Paul Murphy.
“The overriding objective must be to keep people in work, not push them onto the welfare system. All businesses that are receiving government support must do all they can to ensure that the money is used to keep people on the payroll.”
Mr Murphy reiterated that MEAA is also working with other peak bodies in the sector, including Live Performance Australia and Screen Producers Australia, to obtain from the federal government a targeted and specific rescue package for the arts.
‘Huge’ pressure on employers
Workplace relations company Employsure also confirmed that on Monday, calls to its advice line spiked as employers grapple with the entitlements that apply since the COVID-19 outbreak.
Ed Mallett, Employsure’s managing director, explained that there has been a sense of confusion and anxiety in the business community and employers are scrambling to understand various entitlements to employees.
“If you are ordered by the government to fully shut down, and your employees can’t reasonably work elsewhere, you may be in a position to stand them down without pay,” Mr Mallett said.
“The employer needs to be able to show that it is a legitimate stoppage of work, and not just a downturn. This certainly appears to be a legitimate stoppage for many businesses, meaning that unpaid stand-down provisions in the Fair Work Act may well apply given the circumstances.”
Mr Mallett explained that the requirements under the Fair Work Act mean that unpaid stand-downs apply when an employee cannot usefully be employed. However, an employer must show that all steps were taken to find useful employment for the affected employees.
“This doesn’t mean an employer is bound to place employees in positions that are drastically different to their contracted position or significantly change the way they operate the business,” he said.
“However, prior to standing down an employee, you should consider any consultation and notice requirements.”
Mr Mallett urged understanding for employers who “are doing their best to meet an unprecedented challenge”.
“There’s a huge amount of pressure on their business, but they’ve also got employees to think about and legal obligations they must fulfill.”