To assist in managing your workforces, we've set out some of the current issues which our higher-education clients are grappling with, as well as identifying further issues which we anticipate universities may be faced with in the future.

Current issues

Cashing out leave

You may be finding an increased number of employees seeking to 'cash out' some or all of their annual and long leave entitlements in the wake of the COVID-19 pandemic if their household is facing a situation where a family member is stood down (without pay) or has their salary or hours reduced.

Employees and employers can agree to an employee cashing out annual leave, but only in limited circumstances.

Employees who are covered by an enterprise agreement (as most of yours will be) or award may cash out leave in accordance with the relevant EA or award, whilst employees who are not covered by an EA or award may cash out leave by agreement, in accordance with the provisions of the Fair Work Act 2009 (Cth) (FW Act).

Either way, the following rules will generally apply for the cashing out of annual leave for any employee:

• There will be a minimum amount of annual leave an employee must have remaining after the cash out (typically 4 weeks);
• An employer must not force or pressure an employee to cash out annual leave or knowingly misrepresent the employee’s workplace rights;
• Each instance of cashing out of a particular amount of paid annual leave must be the subject of a separate agreement in writing; and
• The payment for cashed out annual leave must be at least the full amount that the employee would have been paid if they took the leave at the time it was forgone.

Whether an employee can cash out their long service leave will depend on the applicable state or territory legislation. In Western Australia, Tasmania, South Australia and Queensland (if provided for in an enterprise agreement), long service leave can be cashed out. In Victoria, NSW, ACT and the Northern Territory, long service leave cannot be cashed out under legislation.

Refusing leave requests

Many employees (particularly prior to the JobKeeper Payment announcement) were requesting to take annual leave and long service leave in advance of it accruing. This has presented many challenges to employers that want to support their employees but have liquidity concerns so simply can't afford to approve all leave requests.

Under the FW Act, an employer must not ‘unreasonably refuse’ a request for paid annual leave. Whether denying such a request is unreasonable will depend on various circumstances and is determined on a case-by-case basis. This involves considering the employee’s role and reason for requesting the leave, and the employer’s operations. It may be difficult to refuse an employee’s request to take accrued annual leave in circumstances where they are not required to perform work and would otherwise be on leave without pay and/or stood down without pay. You should seek advice if you are considering refusing such a request.
For employees wanting to take long service leave in advance, the position again depends on the state or territory in which the employee is based. Under long service leave legislation in New South Wales, Western Australia, South Australia and Victoria, an employee can take long service leave in advance. In Tasmania, Queensland, the ACT and the Northern Territory the long service leave legislation does not provide for taking leave before it has accrued.

Access to JobKeeper Payment

On 30 March 2020, the Australian Government announced that it would provide financial support in the form of wage subsidies, known as 'JobKeeper Payments', to businesses to ensure that more Australians remain employed during the COVID-19 pandemic.

As we explained in Understanding the COVID-19 ‘JobKeeper Payments', the announcement of the JobKeeper Payments is intended to enable employers to maintain their connections with employees and be in a position to quickly resume operations.

In circumstances where universities were considering standing down some of their workforce, the Government's announcement may assist in ensuring that relevant employees retain a source of income, and stay connected with the university. However, it's important to note that the JobKeeper payment is only available to employers who have a reduction in turnover of 30% compared to one year ago, for at least one month (for businesses with an annual turnover of less than $1 billion).

The payment is $1,500 per fortnight per eligible employee for up to six months, and it’s paid to the employer. The payment is a flat amount, regardless of the employee's earnings and must be passed on in full to the employee.

Eligible employers will have to provide monthly updates to the Australian Taxation Office (ATO) and to ensure that eligible employees receive, at a minimum, $1,500 per fortnight, before tax. Eligible employers will receive the first payment from the ATO in the first week of May 2020.

Work health & safety issues for workers who have to attend campus

As universities across the country are slowly starting to close their campuses and move to nearly 100% remote learning, issues are arising in relation to requests by employees to attend the campus. Reasons for requests range from collecting certain things (such as documents, equipment, etc), but may also be requests by employees to perform work on campus, where they consider that their work cannot be performed from home. In particular, those undertaking critical research may lodge a request because their research is prejudiced if they can’t access a laboratory.

In circumstances where employees are required to attend the university campus, you should ensure that:

• Approval in advance is given;When necessary and where possible, a rotating roster is implemented to minimise the number of staff onsite at any given time;
• There is appropriate supervision and security;
• High standards of routine environmental cleaning are performed, including regular cleaning and disinfecting of high-touch surfaces such as door knobs, desks and keyboards;
• Any person attending onsite is aware of their obligation to comply with social distancing and other health and safety measures as appropriate. For more information on social distancing, please see the Australian Government’s Department of Health factsheet. Employees must also comply with relevant restrictions in place in their state or territory; and
• The university complies with obligations to consult with workers about identifying and managing safety hazards and risks.

Emerging longer-term issues

While we are all focussed on managing the immediate legal and practical issues arising from the COVID-19 pandemic, it is worthwhile considering some of the issues we anticipate will arise as social distancing, working from home and economic pressure becomes the new norm.

Managing exposure to WHS claims

As many workforces across the country move to remote working, employees' homes are becoming their 'workplaces'. This brings with it a whole raft of issues relating to workplace health and safety obligations, not only in relation to physical safety, but also psychological safety.

As we move to nearly 100% remote working, the risk of psychological injury increases. As employees become more disconnected from their colleagues, whilst dealing with the uncertainty surrounding the COVID-19 pandemic and its impact on their employment and personal circumstances, the risk to mental health is increased. Now, more than ever, it is important for employers to be checking in regularly with employees and ensuring that they have adequate access to appropriate supports.

In this climate, it is recommended that employers seek to:

• Regularly and transparently communicate and share information with employees;
• Provide employees with a point of contact to discuss concerns;
• Refer employees to appropriate channels to support mental health and wellbeing, such as employee assistance programs; and
• Use videoconferencing or other software to engage employees in virtual team activities.

Longer term cost savings

Many universities will have a financial downturn as a result of the potential reduction of overseas students (among other things). There are many employment related cost savings that can be considered to assist with the 'financial hole', including:

• agreed reduction in hours (eg, changing from part time to full time employment for a period of time);
• taking accrued leave (eg, annual and long service leave). While not an immediate reduction in cost, it does reduce the cost on the balance sheet.
• agreed reduction in salary (but being aware not to go under minimums in the relevant EA).
• no pay increases for 2020 (although for most organisations this would require a variation to their EA).
• purchasing of leave.
• in some instances, standing down employees under an EA or the Fair Work Act.

Return-to-work arrangements for casuals

There will come a time when the social distancing, travel and other measures mandated by the Government are removed and, slowly, business will return to normal operations.

As things start returning to 'normal', issues may arise in relation to the engagement of casual employees. Whilst permanent employees might return to normal employment as social distancing measures are lifted, it may take a little longer for higher education providers to resume the need for the engagement of large numbers of casual employees.

To minimise the risk of disputation arising from a casual employee who feels they are entitled to return to work earlier than the university requires, we recommend that the following steps be taken:

• Ensure you engage in regular communication with casual employees during any period they are not required to work about the impact of COVID-19 on normal operations;
• Make no promises about whether, and when, they might be engaged by the university to perform work in future; and
• Where appropriate, encourage casual employees to access government subsidised payments (which may include JobKeeper or JobSeeker), to limit the impact on their income.