In Part 2 of our Covid Support Series with POP Business, Lawyer Damin Murdock covers all the important legal issues facing businesses throughout lockdown and beyond.

1. COVID-19 Business
Support: Legal
Questions Answered
21 July 2021
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2. 2
About Lawpath
The legal industry’s traditional model has
created a barrier to much needed legal
services for so many Australian businesses.
Through the power of technology, we’re
paving the way for businesses to get the
access to legal protection they deserve, at a
fraction of the time, cost and complexity.
To date we’ve helped over 200,000
businesses save $100m+ in legal fees.

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Today’s Speaker
Damin Murdock
● Principal at Lawpath Legal
● Co-Founder: MurdockCheng Legal Practice
● Top Commercial Lawyer on lawyer network
● Expertise in business law, consumer law, litigation, IP law & more

4. Disclaimer:
This webinar is general information only and does
not substitute for the need to obtain legal advice on
specific circumstances.

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What we’ll cover
● Residential Tenancies
● Commercial Leases
● The Fair Work Act
● Leave allowances for staff who are self-isolating, in
quarantine or ill
● What you can do if an employee has COVID-19
● Implementing remote working
● Legal requirements for redundancy & standing down
employees

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Before We Start...
We value your input!
We encourage you to ask questions to ensure you get as much out of
today as possible
Setting expectations
Although we would love to answer every question we
unfortunately won't have the time to cover every one that
we receive. We will provide options for contacting Damin
and the Lawpath team to discuss specific matters at the
end of this session

7. 1. Residential
Tenancies

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Residential Tenancies (NSW)
What is it?
From 14 July 2021 to 11 September 2021, tenants are protected from eviction, unless that eviction / termination is
due to the sale of premises, illegal use of premises, damage to property, hardship (on owner/landlord), end of fixed
term
Eligibility
1. Evidence household is impacted by COVID-19 and lost employment, hours of work or reduced income because of
COVID-19, with a 25% or more reduction in household income, in comparison from 26 May to 26 June period
2. To meet the requirements for 60 day stop on evictions and the longer six-month restrictions, a household needs to
demonstrate they are impacted by COVID-19.
3. Continue to pay at least 25% of rental payments
4. Landlords can seek a rebate of up to $1,500
For more information, visit:
NSW https://www.fairtrading.nsw.gov.au/resource-library/publications/coronavirus-covid-19/property/moratorium
VIC https://www.consumer.vic.gov.au/resources-and-tools/advice-in-a-disaster/coronavirus-covid19-and-your-rights

9. 2. Commercial
Leases

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Commercial Leases (NSW)(VIC)
New South Wales
On 14 July 2021, the NSW Government enacted the Retail and Other Commercial Leases
(COVID-19) Regulation 2021 (the Regulation)
What is it?
A landlord cannot take a “prescribed action” (eviction, right of re-entry, recovering security bond,
terminating lease), during the “prescribed period” (13 July 2021 to 20 August 2021), without first
proceeding with mediation
Eligibility
Only to those businesses which are eligible for the Micro-business COVID-19 Support Grant,
the COVID-19 NSW Business Grant and/or the Job Saver Grant
Victoria (No further information)
Continue to follow https://www.vsbc.vic.gov.au/

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NSW GRANTS
Micro-business COVID-19 Support Grant
Turnover of $30,000 to $75,000 and revenue decline of 30%
COVID-19 NSW Business Grant
Grants of $7,500 where there is a decline in revenue by 30%
Grants of $10,500 where there is a decline in revenue by 50%
Grants of $15,000 where there is a decline in revenue by 70%
The prescribed period of decline in revenue over a 2-week period between 27 May 2021 to 17
July 2021
Job Saver Grant
Grant of up to 40% of the weekly payroll, with a minimum payment of $1,500 per week up to a
maximum of $10,000 per week, where revenue has declined by 30% of more
For more information:
https://www.service.nsw.gov.au/transaction/2021-covid-19-business-grant

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ALL STATES GRANTS
Unlike the 2020 Federal Government grant schemes, at present, it is State based. For
more information regarding your States, please visit:
https://business.gov.au/risk-management/emergency-management/coronavirus-informatio
n-and-support-for-business/coronavirus-state-and-territory-information-and-assistance

13. 3. Employment
Law

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Fair Work Act
Vaccinations in the workplace
On 28 June 2021, all residential aged car workers must receive first vaccine by mid-September 2021
Ms Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156 (Barber) and Jennifer Kimber v Sapphire Coast
Community Aged Care Ltd [2021] FWC 1818 (Kimber) cases and principles:
● Terminating employee on grounds of refusing flu vaccination was not an unfair dismissal
● Employers are allowed to give “lawful and reasonable direction” to employees
● Employers are allowed to take disciplinary action for failing to comply with a lawful and reasonable direction
● When having consideration to an employers paramount duty under Work Health and Safety legislation to keep
employees safe in the workplace, this paramount duty is of critical importance;
● Factors to consider (not exhaustive) (a) the need to ensure safety and welfare; (b) control methods; (c)
whether the vaccination policy was implemented and considering medical conditions of staff; (d) consultation;
and (e) period of implementation (f) procedural fairness
● Take caution as this case is specific to the childcare industry

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Fair Work Act
Forced Shutdown
FAIR WORK ACT 2009 - SECT 524 - Employer may stand down employees in certain circumstances
An employer may, stand down an employee during a period in which the employee cannot usefully be
employed because of a stoppage of work for any cause for which the employer cannot reasonably be held
responsible, unless an Award or employment contract has procedures in place or are contrary to this
section, in which case, must follow the procedures in the employment contract and/or Award
FAIR WORK ACT 2009 - SECT 525 - Employee not stood down during a period of authorised leave
or absence
An employee is not taken to be stood down under subsection 524(1) during a period when the employee is
taking paid or unpaid leave that is authorised by the employer; or is otherwise authorised to be absent from
his or her employment.

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Fair Work Act
Annual Leave
FAIR WORK ACT 2009 - SECT 92 – Cashing out of annual leave
Paid annual leave must not be cashed out, except in accordance with section 93 or 94 of the Act
FAIR WORK ACT 2009 - SECT 93 & 94 – Cashing out of annual leave
Paid annual leave must not be cashed out if the cashing out would result in the employee's
remaining accrued entitlement to paid annual leave being less than 4 weeks and each cashing out
must be by a separate agreement in writing

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What if an employee tests positive for
COVID-19?
● You cannot dismiss an employee simply for having COVID-19
● Section 352 of the Fair Work Act says "an employer must not dismiss an employee
because the employee is temporarily absent from work because of illness or injury."
● Regulation 3.01 of the Fair Work Regulations also provides "it is not a temporary absence
if the employee's absence extends for more than 3 months or the total absences of the
employee, within a 12 month period have been more than 3 months (exclusive of an
absence on paid personal/carer's leave or workers compensation)".
● You can enforce self-isolation provisions that have been legislated by the government,
i.e. you can prevent them from coming into work if they are sick.

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Unpaid pandemic leave
● Most of the Modern Awards have established, and extended, unpaid pandemic leave
entitlements, until 31 December 2021.
● It allows for an additional 2 weeks’ of unpaid leave where an employee is required to
self-isolate.
● It allows for employees to take 2 x their annual leave entitlements, at half pay (ie, if an
employee has 2 weeks annual leave, that employee can receive annual leave payments for a
period of 4 weeks, at half their weekly salary)
● For more information if your Modern Award has been extended, please visit:
https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/changes-to-work
place-laws-during-coronavirus/unpaid-pandemic-leave-annual-leave-changes-in-awards

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Working from home (WFH)
If your employees will be working from home, you should have policy in place because:
● You are liable for Occupational Health and Safety of Staff whilst at work (this includes if
employees are at home)
● You are required to have a safe working environment, free from hazards
● You should state which insurance will apply - WorkCover or Home Public Liability Insurance
Be sure to monitor and communicate with staff regularly through:
● Maintaining time recording
● Having clear KPI requirements recorded and having regular meetings/check-ins
● Using remote working tools such as Slack, Zoom, and WorkflowMax
Current circumstances have meant that many businesses need to implement measures to allow their
employees to work remotely

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Redundancy
● Redundancy occurs where an employer no longer requires the person’s job to be
performed by anyone because of changes in the operational requirements of an employer
AND the employer has complied with any Modern Award requirements to consult
● A redundancy needs to be genuine in order to be legal
● Redundancy is not a genuine redundancy where the employer could have taken
reasonable steps to redeploy the employee into another position
● Casual employees are not entitled to redundancy pay

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Redundancy
Grounds for Refusal
You must consider the legitimacy of the refusal to attend work
Legitimate concerns include lawful compliance with Government sanctions; people at risk (see
Department of Health - People at Risk); evidence they can expose other people at risk; evidence
that the employee could be exposed if attended work; evidence the employer has failed to minimize
risk; employee is acting reasonably
Unreasonable or Unlawful Refusal
Consider disciplinary action; warning letters; flexible work arrangements; standing down employee
and if only necessary, dismissal but risking General Protection Application on grounds that the
dismissal is an adverse action due to the employee exercising a legitimate workplace right to safety
(get legal advice)

22. COVID-19 Resources Hub:
https://lawpath.com.au/blog/covid-19-resources
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https://lawpath.com.au/legal-advice-plan
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