Australia: COVID-19: Border closures - Implications for employers and employees

In brief - The unprecedented COVID-19 Pandemic has seen all States and Territories except New South Wales, Victoria and the Australian Capital Territory impose strict border control restrictions. Due to the evolving nature of this global health crisis, further restrictions are predicted that will further limit movement around the country.

These closures may have significant impact on national businesses, contractors, employers and employees who operate interstate. It remains unclear how long border control measures will remain in place, but Prime Minister Scott Morrison predicts that current restrictions will be in place for up to six months.

As of 1 April 2020, the following restrictions are in place:

Border Restrictions in each State and Territory*

*In addition, restrictions are in place for travel in and out of indigenous communities.

Case Study - Queensland

As most people in Queensland already know, the Premier, Annastacia Palaszczuk, announced a closure of Queensland borders from midnight on Wednesday 25 March 2020 to contain and isolate the spread of COVID-19.

After that date, anyone entering Queensland from the sea, air, rail or by road from another State or Territory is required to self-quarantine for 14 days, unless they are declared an "exempt person". If you are a Queensland resident returning to Queensland from another place within Australia that is not a declared 'COVID hotspot' you are not required to self-quarantine at this stage.

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
• Construction, mining, energy and agribusinesses workers
• Federal, State, or local government workers who are required to enter Queensland and perform official duties

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 (i.e. Court, parole or bail conditions)

Restrictions and self-quarantine measures can still apply to exempt persons who have travelled to certain parts of Australia considered COVID-19 hotspots within the last 14 days as decided by the Queensland Health Chief Health Officer (CHO).

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 have introduced an exemption that 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. We note that all Queensland schools and universities are now closed.

If a resident is considered an "exempt person" they can apply for an 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 $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.

While it may not be necessary to put firm plans in place before further details are released tomorrow, it is important to start thinking about how your business and employees can work while faced with the border closures.

International arrivals

Travellers returning to Australia by sea or air into any State or Territory are required to complete 14 days of quarantine in the city of arrival in accommodation provided by the Government (generally a hotel). A traveller will be required to complete another 14 days of self-quarantine if their final destination is another State or Territory. Failure to self-quarantine may result in significant penalties.

Leave entitlements for employees

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 and are not 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 an 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;
• 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 might be able to negotiate with some 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.

Employers should also understand what benefits might be available under government assistance packages. For further information please read our related article.

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

Fly In Fly Out (FIFO) Workers

At this stage FIFO workers in the construction, mining, commercial fishing, forestry, petroleum, energy or agribusiness industries are still allowed to enter Queensland to work without having to undertake self-isolation measures.

Workers will be required to provide evidence of their FIFO status and who they are employed by. Similarly employers in these sectors will need to comply with the health and safety requirements prescribed by the CHO in relation to social distancing, hygiene and infection control measures to manage risks associated with COVID-19.

FIFO workers who are employed by an interstate company may continue to fly to and from work. However if the workplace is located in a declared COVID-19 hot spot, the person will be required to self-isolate for 14 days upon returning to Queensland.

FIFO employees flying to WA for work purposes, border closures in WA must also be considered. All entries to WA by road, rail and sea are required to self-isolate for 14 days unless deemed an exempt person.

Exemptions apply to essential services and essential workers including health and emergency workers, defence and police, mining workforces, flight crews and freight services of essential goods. Exempt persons will need to demonstrate they meet criteria upon arrival.

Possible future restrictions to FIFO workers

Mining giants in Australia including BHP, Rio Tinto and Fortescue metal are anticipating that greater government restrictions on the movement of FIFO workers will be implemented in the near future. Alternative work arrangements are being implemented to accommodate the widely expected restrictions 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
• optimise hygiene and social distancing on site and on board flights

Some criticism has followed from the CFMMEU in relation to inadequate compensation being offered to workers to relocate interstate in order to keep the mining industry viable and reduce the risk to health and safety. The Queensland Government have instructed mining companies to reduce any mass movement of workers and where possible to have worker live locally to work sites.

Enforcement and Penalties

Under the Biosecurity Act 2015 (Cth) it an offence to fail to comply with a public health directive. This may attract penalties of maximum $63,000 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:

Actions to take going forward

To comply with the duty to protect employees, clients and the community employers should:

• remain up to date with COVID-19 information provided by the Federal Department of Health as well as information provided by State Health Departments;
• undertake risk assessments in respect of the potential effect of COVID-19 on their business, their workforce and the community. If any particular staff members are at particular risk, specific risk management measures should be implemented;
• keep staff updated with control measures;
• advise employees of their personal duty to take all reasonably practicable actions for their own health and safety, and the health and safety of others in the workplace;
• require staff to contact an allocated contact person with any queries of concerns they have relating to COVID-19 and to advise if they have contracted the virus or come into contact with it; and
• comply with the control measures, consider how staff can comply with the control measures, deploy staff to work at home where possible and consider what other arrangements can be put in place for staff who cannot work remotely.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Megan Kavanagh

Natalie Stoll

Workplace relations

Colin Biggers & Paisley