Your rights and responsibilities

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Private Sector and Aged Care

Last updated 31 January 2022.

Please note the advice provided on these pages is intended as general advice. If you have specific concerns, please contact the Duty Officer to discuss your particular circumstances by email [email protected]

Additional information can be found at the Fair Work Ombudsman website. 

A. This will depend on the reason that you were sent home.

If you are sent home from work to self-isolate to avoid a risk of contaminating others, then you are serving your employer during this time, even if you are not working. Where an employer directs a full-time or part-time employee not to work, the employee would ordinarily be entitled to be paid while subject to the direction. That entitlement “to be paid’ while directed not to work, is an entitlement “to be paid’ without reduction of any leave balance.

Casual employees are not entitled to be paid. The ANMF, along with other Trade Unions, is calling on the Federal Government to provide financial support for all workers impacted by COVID-19.

If you are sent home from work to avoid social contact, then you should make arrangements to work from home (if possible). If that is not possible, then you are following a direction from your employer and as such are serving your employer during the time that you are home. As above, a full-time or part-time employee would ordinarily be entitled to be paid while subject to the direction. Casual employees are not entitled to be paid.

If you are sent home from work because you cannot be usefully employed (there is no work for you to do) because of COVID-19, then your employer may stand you down, with or without pay. If you are stood down without pay, you may be able to access accrued annual leave entitlements. Some enterprise agreements in the private acute sector permit the employer to direct an employee to take annual leave where the hospital is at low occupancy or low activity, or during periods of shutdown. If you experience the above, please contact the ANMF (SA Branch) Duty Officer on 8334 1900 to get further advice.

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A. Whether you can be directed to undertake different duties will depend on your employment contract and what has been agreed to in terms of the scope of your duties.

For example, if you were employed as a Nurse Educator, but your contract or job specification includes, ‘providing clinical nursing care’, then you could be directed to perform clinical nursing duties.

If you experience the above, please contact the ANMF (SA Branch) Duty Officer on 8334 1900 for further advice.

A: In the first instance, we would encourage these other staff to explore options with their employer for working from home. These staff who have been sent home are serving their employer during that time at home, even if they are not working. Where an employer directs a full-time or part-time employee not to work, the employee would ordinarily be entitled to be paid while subject to the direction. That entitlement “to be paid’ while directed not to work, is an entitlement “to be paid’ without reduction of any leave balance.

Casual employees are not entitled to be paid. The ANMF continue to call on the Federal Government to provide financial support for all workers impacted by COVID-19.

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A: A casual employee is entitled to accept or reject offered shifts at will. There is no obligation for a casual employee to accept a shift.

However, it is recommended that you discuss your personal circumstances with your employer to explore any options for being rostered in a different ward or worksite, so as to avoid a reduction in your income.

A. An employer has an obligation to make sure everyone at work is safe, so they can ask for a medical clearance where it is reasonable. In the case of COVID-19 concerns, this will depend on the circumstances, but should really only be in a situation where:

  • a worker may have been exposed to a confirmed case of coronavirus; or
  • a worker may have travelled, transited or left a specific country.

A. An employer may in certain circumstances be required to direct an employee to get tested to comply with obligations under a work health and safety law. A term of an enterprise agreement, other registered agreement, policy or employment contract may also permit an employer to require an employee to get tested.

Where there is no requirement under a public health order, work health and safety law, enterprise agreement or employment contract, an employer may still be able to direct an employee to get tested in some circumstances. Requirements, or directions, need to be lawful and reasonable. An employer’s direction is more likely to be lawful and reasonable where the current public health advice is for the employee to get tested.

A. Rapid antigen testing is a fast and simple test used in Australia that can indicate if someone is likely to have COVID-19. Where employers implement rapid antigen testing in the workplace, requirements must be lawful and reasonable.

A. Private sector employers cannot direct an employee to take annual leave unless the relevant enterprise agreement or modern award permits such a direction. Some enterprise agreements in the private acute sector permit the employer to direct an employee to take annual leave where the hospital is at low occupancy or low activity, or during periods of shutdown.

If you experience the above, please contact the ANMF (SA Branch) Duty Officer on 8334 1900 to get further advice.

A. Employers should take positive steps to assist workers to manage any increased family responsibilities arising from COVID-19.

Permanent employees and regular and systematic casual employees who have a reasonable expectation of continuing employment who have completed 12 months service with their employer, can request “flexible working arrangements” in certain circumstances.

Circumstances include, for example, employees who are the parent of, or responsible for the care of, a child who is of school age or younger or a “carer” within the meaning of the Carer Recognition Act 2010. See section 65 of the Fair Work Act 2009 here. 

Your employer must discuss and genuinely consider your request and only refuse on reasonable business grounds which will include a consideration of the operational needs of the workplace. A written response should be provided to you.

 

A. Workers who contract COVID-19 in the course of their employment may be able to claim workers' compensation benefits, which can include payments for time lost and reimbursement of medical expenses.

However, it may be challenging to prove that work was the significant contributing cause of the injury in light of the growing number of community infections. You should contact the Duty Officer for assistance if you are unable to work due to contracting COVID-19 at work.

A. Members who have pre-existing health conditions or are aged over 65 years are encouraged to have a discussion with their line manager in the first instance to negotiate suitable work arrangements including location and/or duties.

A. The Fair Work Act 2009 allows employers to stand employees down without pay in certain circumstances when employees cannot be usefully employed. An unpaid stand down may also be permitted by an employment contract or term of an enterprise agreement.

If you and/or your colleagues are stood down, you should contact our Duty Officer by emailing [email protected] immediately.

There are several alternatives to standing down staff, which employers should also explore. These include:

  • access to accrued paid leave (e.g. annual leave);
  • negotiating with employees to change rosters or hours of work (by agreement only); and
  • transfer to other sites and flexible working arrangements, such as working from home.

The effect of a stand-down is that you remain employed, although you are not required to perform work and you are not paid during the period of the stand-down. However, you continue to accrue annual leave and personal leave entitlements while you are stood down.

For more information visit the -Fair Work Ombudsman website.

A. For permanent employees:

  • If you are not required in your usual area of work, your employer may direct you to perform alternative duties. The direction to undertake alternative duties must be reasonable in the circumstances, taking into account whether you are provided with appropriate orientation and relevant training, and the nature and scope of your substantive role.
  • If you are not required because there is no meaningful work for you to do:
    • you cannot be forced to take Leave Without Pay or Personal/Carer’s leave;
    • where allowable under an industrial instrument, you may be directed to access Long Service Leave and/or annual leave. Certain conditions and notice periods may apply to such a direction. For example, under the Long Service Leave Act 1987, an employer may direct an employee to take that leave by giving at least 60 days’ notice.
  • You may choose to access any accrued leave by applying in the usual manner.
  • You must be paid your contracted hours unless you access any leave without pay.
  • You may agree with your employer to temporarily change your hours or days of work. Any agreement should be recorded in writing, including the end date of any agreement.

For casual employees:

Casuals do not have the right to a minimum number of shifts and are not entitled to be paid if they are not working. The ANMF continue to call on the Federal Government to provide financial support for all workers impacted by COVID-19.

A. If you have been tested for COVID-19 because you are unwell, part-time or full-time employees may use paid Personal/Carer’s leave. Casual employees do not have access to paid Personal/Carer’s leave. Your employer may require you to provide a medical certificate or other reasonable evidence to support the taking of this leave.

If you were tested for COVID-19 for another reason, and are otherwise fit for work, you may be entitled to claim unpaid pandemic leave under your modern Award. If you are a Nurse covered by the Nurses Award 2020 (here), or a Personal Care Worker covered by the Aged Care Award 2010, (here),  you should see Schedule X for access to unpaid pandemic leave. This leave is currently available until 30 June 2022 and provides up to 2 weeks unpaid leave if you are required by the government or medical authorities, or on the advice of a medical practitioner, to self-isolate and consequently are prevented from working.

If you are covered by an enterprise agreement, please contact the Duty Officer for further advice.

A. If an employee is required to go to a COVID-19 testing facility to get tested for COVID-19 by their employer (but it isn’t required under a public health order), they’re entitled to get tested on work time and be paid for the time as if they had worked. A requirement to complete a Rapid Antigen Test before your shift should also take place in paid time.

A. Employees who are considered to be “vulnerable” are encouraged to have a discussion with their line manager in the first instance to negotiate suitable work arrangements including location and/or duties.

Throughout the COVID-19 pandemic, the following people have generally been considered to be “vulnerable”:

1. Aboriginal and Torres Strait Islander people, 2. People aged over 70, 3. People who are pregnant, 4. People with one or more specific pre-existing medical conditions, and 5. People with disability.

More information about groups at greater risk is availablehere.

A. If you are covered by an enterprise agreement, you should check to see if it contains any entitlement to paid or unpaid pandemic leave.

If you are a Nurse covered by the Nurses Award 2020 (here) or a Personal Care Worker covered by the Aged Care Award 2010(here), or a Personal Care Worker covered by the Aged Care Award 2010, (here),   you should see Schedule X for access to unpaid pandemic leave. You will be entitled to take up to two weeks unpaid leave if you are required by government or medical authorities or on the advice of a medical practitioner to self-isolate or are unable to work because of measures taken by government or medical authorities in response to the COVID-19 pandemic. You may also take your annual leave at half pay.

A. Please read through the FAQs published on the AHPRA website concerning the effects of COVID-19 on registration. You can find themhere.

Should you have further concerns, you can contact AHPRA directly or contact the ANMF Duty Officer to seek advice by email [email protected]

 

A. On 14 August 2020, the Emergency Management (Residential Aged Care Facilities No 7) (COVID-19) Direction 2020 came into effect and prevented Personal Care Workers from working at multiple Residential Aged Care Facilities, unless a 14-day break occurred between work undertaken at each site.

This prohibition was in place for approximately four (4) months, until 14 December 2020, when the Emergency Management (Residential Aged Care Facilities No 17) (COVID-19) Direction 2020 commenced. In that Direction, and all subsequent Directions, the restrictions on

Personal Care Workers working across multiple Residential Aged Care Facilities was relaxed.

Personal Care Workers are currently required to limit such work arrangements to the “extent reasonably possible.” Employers should have regard to individual circumstances when considering a request to work across sites. Employers may keep registers of staff who are working across multiple worksites. This is set out in the Emergency Management (Residential Aged Care Facilities No 45) (COVID-19) Direction 2022, availablehere.

We are seeking that, where it is necessary to implement limitations, employees are not financially disadvantaged. We encourage affected members to discuss with your manager what they plan to do in terms of mitigating the loss of any shifts or hours and contact the ANMF Duty Officer to seek advice by email by email [email protected]

A. All persons who are employed to work at a Residential Aged Care Facility must be vaccinated against COVID-19. /a>

A person is vaccinated against COVID-19 if the person has received at least two doses of a COVID-19 vaccine approved by the TGA or all dosages of a recognised COVID-19 vaccine in accordance with dosage schedule recommended by ATAGI for that vaccine, and within 4 weeks of becoming eligible in accordance with ATAGI guidelines, receives a third dose (booster) of a TGA approved COVID-19 vaccine.

If you do not meet these requirements, you must not enter or remain on the premises of a Residential Aged Care Facility in South Australia.

This is set out in the Emergency Management (Residential Aged Care Facilities No 45) (COVID-19) Direction 2022, availablehere.

The Emergency Management (Residential Aged Care Facilities No 45) (COVID-19) Direction 2022 came into effect at 12:01am on 29 January 2022, and revokes the Emergency Management (Residential Aged Care Facilities No 44) (COVID-19) Direction 2021.

There is an exemption to the COVID-19 vaccination requirement if the person has a medical certificate or letter from a legally qualified medical practitioner certifying the exemption and the Chief Public Health Officer or her delegate has endorsed the exemption.