Australia: Update On COVID-19 Border Closures - Implications For Employers And Employees

In brief - The unprecedented COVID-19 pandemic has seen all states and territories impose border and movement restrictions. These restrictions may have significant impact on national businesses, contractors, employers and employees who operate across state lines or within restricted zones.

This article was updated on 7 August 2020 to reflect the most recent changes to border controls in Queensland and workplace restrictions in Victoria.

It remains unclear how long border control measures will remain in place, but it is predicted that closures may be in place for as long as 6 months.

As we recommended in March and April 2020, employers must again reconsider if/how work can continue, what flexible arrangements might be needed and how worker and client safety can be assured within the various restrictions, which as at 5 August include:

Case Studies

Queensland

The Queensland Government has implemented amongst the most stringent border control measures to combat the spread of COVID-19. From 8 August 2020, any person entering Queensland who has been to Victoria, NSW or the ACT in the previous 14 days will be denied entry, all other people will be permitted entry. Of those returning from hotspots, only Queensland residents and those considered "exempt persons" will be permitted to cross the border into Queensland.

The following restrictions apply:

• Queensland residents who are returning to Queensland from overseas must self-quarantine for 14 days in a nominated place (ie, a hotel) as instructed by a relevant government officer.
• Queensland residents returning from a known COVID-19 hotspot* within Australia will be required to self-quarantine even if deemed an exempt person.
• Queensland residents returning from another place within Australia that is not considered a COVID-19 hotspot are not required to self-quarantine.

*A COVID-19 hotspot is a place where a cluster of COVID-19 cases have been identified which is declared by the Queensland Government's Chief Health Officer (CHO). Currently, Victoria and Greater Sydney are declared hotspots, however, from 1am Saturday 8 August, all local government areas in NSW and the ACT will also be declared COVID-19 hotspots.

Exempt persons include the following critical services:

• National and state security workers
• Essential health and emergency services
• Transporters of goods and freight, including food
• Critical maintenance and repair services to critical infrastructure
• Critical resource sector employees (see below)
• Federal, state, or local government workers who are required to enter Queensland and perform official duties

It is anticipated that exemptions will also be afforded to persons on compassionate and other grounds, including:

• persons needing to obtain access to essential medical treatment including visitors of terminally ill family members
• interstate boarding school students returning home
• carers or relatives of dependent individuals in Queensland
• persons required to travel by law (ie, Court, parole or bail conditions)

People who meet the criteria to be deemed an exempt person are encouraged to apply online for a Queensland entry pass to reduce delays when crossing the border.

These restrictions allow for the continuation of delivery of essential goods and services for Queenslanders.

Exemption for border communities

To ease the burden on residents who live near a Queensland border, the Queensland Government will reinstate the exemption which allows people who live near the border of Queensland, NSW, SA or the NT who ordinarily work in Queensland to continue to travel for that work or study.

For example, residents and workers who live on the Coolangatta-Tweed border will still be permitted to cross the border to attend work or access essential services.

Importantly, this exemption is not restricted to people working for essential services. However, workers are required to remain in Queensland for only as long as reasonably necessary for work.

The exemption extends to persons living in border communities who traverse the border to access essential goods and services or for the purposes of child care and education.

If a resident is considered an "exempt person" they can apply for a Queensland entry pass to freely cross the border. Heavy freight vehicles carrying goods do not need a pass and may freely cross the border. Please see https://www.qld.gov.au/border-pass to apply for an entry pass. Queensland residents are not required to apply for an entry pass.

Enforcement officers will monitor road entries, rail and sea ports. An entry pass will need to be displayed by exempt persons or employment details of FIFO workers. Failure to comply with a direction of an enforcement officer or quarantine measures may attract a fine of $13,345 for individuals and $66,672.50 for corporations. Enforcement officers can issue an "on the spot" fine for lesser amounts ($1334.50 for individuals, or $6,672.50 for corporations).

Where your business provides services on both sides of a state border, you will need to consider how you will be able to provide services if your staff cannot freely travel.

Where work from home arrangements are available, employers should activate these plans as soon as practicable. Where no such arrangements are possible, employers should commence discussions with staff immediately as to what leave or other arrangements might be put in place while the border remains closed.

Fly In Fly Out (FIFO) Workers

Queensland

From midday Friday 10 July, anyone can enter Queensland unless they have been in a COVID-19 hotspot in the previous 14 days. Resources workers coming to Queensland must complete a Border Declaration Pass in the 7 days before they enter the state.

Resource sector FIFO employees must complete a border declaration pass when entering Queensland, and will no longer require an exemption for travel, if travelling from a state or territory other than Victoria, NSW or the ACT.

Quarantine requirements will continue to apply to any FIFO workers who have:

• COVID-19
• been overseas
• been in contact with a known case of COVID-19, or
• symptoms of COVID-19

Any workers who are travelling from/have been to a COVID-19 hotspot in the previous 14 days will no longer be able to quarantine in Queensland, and will be turned away at the border.

Exceptions apply only to people entering Queensland for essential activities. As the concept of "critical resources sector employees" has been removed from the latest border restrictions direction, resource sector employees may not fall under the "essential activity" definition.

Western Australia

FIFO employees flying to WA for work purposes need to consider WA's tough border closures. WA borders are closed to anyone unless deemed an exempt person. Exemptions apply to essential services including health and medical, emergency services, freight workers, people providing specialist skills, judicial services and on compassionate grounds. Exemptions are also being made for FIFO workers and their families, however, they must self-isolate for 14 days every time they re-enter the state.

Protection Measures

Miners in Australia, including BHP, Rio Tinto and Fortescue Metals, anticipated these restrictions and have implemented alternative work arrangements including:

• instituting flexible roster arrangements to minimise flights and interstate movement and to allow for self-quarantine requirements
• performing temperature checks at airports, reducing the number of workers on site at any one time and extending dining hall times to reduce numbers and maximise social distancing
• relocating families to the state or territory in which they work to remove the need to fly interstate
• optimising hygiene and social distancing on site and on board flights

Victoria

While Victoria has not implemented any significant border controls (possibly because other states and territories have), the state has the toughest lockdown restrictions in Australia.

Metropolitan Melbourne

It is important that employers in metropolitan Melbourne consider the stage 4 restrictions which took effect on 2 August 2020.

From 11:59pm Wednesday 5 August, workplaces in Melbourne must be closed unless:

• the workplace is part of a permitted activity, or
• all employees are working from home

Please see: https://www.dhhs.vic.gov.au/business-industry-stage-4-restrictions-covid-19 for a list of permitted activities.

Employers who require their staff to attend a work site must issue a worker permit to their employees - this is the employer's responsibility.

To issue a worker permit, employers will need:

• name, ABN, company address and trading name
• the name and date of birth of the employee
• the employee's regular hours and place of work
• to meet all eligibility criteria, including that the business is a permitted activity
• to meet all relevant legal obligations
• to have a COVID-19 safe plan in place, and
• to authorise a person or people to issue the worker permit

Workers permits can be downloaded from: https://www.dhhs.vic.gov.au/permitted-worker-scheme-covid-19

Penalties of up to $19,826 (for individuals) and $99,132 (for businesses) will apply to employers who issue worker permits to employees who do not meet the requirements of the worker permit scheme or who otherwise breach the scheme requirements.

Regional Victoria

While less stringent restrictions remain in place in regional Victoria, employers must respect the Stage 3 Stay at Home restrictions which took effect from 11:59pm on Wednesday 5 August 2020.

As a consequence of those restrictions, people in regional Victoria may only leave their home for four reasons:

1. to shop for food and essential goods or services
2. provide care, for compassionate reasons or to seek medical treatment
3. to exercise or for outdoor recreation with your household, or one other person, and
4. for work or study

Though Victorians (outside of Melbourne) may leave their home for work, employers are being urged to establish systems to allow employees to work from home wherever possible.

Leave entitlements for employees

The real difficulty for employer and employees is what leave might be available where employees cannot attend work because of border closures or lock down restrictions.

If a staff member is not able to attend work because of the border closures or quarantine measures, employers need to understand what entitlements might be available:

• Where an employee cannot attend work because of the border closures, and they are not unwell or caring for a member of their household, personal/carer leave provisions will not apply.
• Where an employee has a right to accrued paid leave under a Contract, Award, the National Employment Standard or an enterprise agreement (for example annual leave, long service leave), an employer might reach agreement with the employee to start accessing that leave from Wednesday if they can no longer attend work.
• Non-permanent employees (such as casuals), new starters and employees without any leave accruals may not have an entitlement to paid leave if they cannot attend work because of border closures or lock down restrictions.
• Where an employee can work from home during the border closures or quarantine (because they are not unwell), arrangements might be able to be made to support them to do so. In that case, the employee might continue to be paid as per usual.
• Where an employee cannot attend work, it will not give rise to a stand-down for the purpose of the Fair Work Act 2009 (Cth).

Employers and employees may be able to negotiate with staff to take leave in advance or afford other types of paid leave arrangements to keep employees engaged at this difficult time.

Where an employer can afford to make such arrangements, the terms of such arrangements should be made clear and confirmed with the employee in writing, along with any recovery provisions should the employee resign from their employment.

Employers should also understand the benefit available under government assistance packages including the Jobseeker and JobKeeper payments.

Where some employers were not eligible earlier in the year, as the effect of further restrictions is realised, more employers will likely become eligible.

New JobKeeper provisions were announced on 7 August 2020. We will be issuing an update in regards to those provisions shortly.

Either way, it is important that employers take steps to communicate with workers now about how the border closures will affect their work.

Enforcement and Penalties

Under the Biosecurity Act 2015 (Cth), it is an offence to fail to comply with a public health directive. This may attract penalties of a maximum $66,600 fine or up to 5 years imprisonment or both. Each state and territory has imposed significant penalties for failure to comply with self-quarantine measures imposed under the various Public Health Acts as below: