While there was considerable jubilation when the trans-Tasman bubble opened on 19 April, it was on a “flyer-beware” basis, leaving travellers responsible for any costs, delays or quarantine restrictions, should the borders suddenly close due to a Covid-19 outbreak.
Since that time, NSW, Victoria and Western Australia have all had to push pause on the bubble due to outbreaks, while Wellington was put into Alert Level 2 on 23 June. These intermittent disruptions could be the new normal for some time to come.
Many employers are left wondering where employment laws sit in these uncertain conditions, and who is ultimately responsible for their employees, should they get stranded overseas.
The first question is, can an employer refuse leave to an employee planning to take a trans-Tasman holiday? The question of when employees take leave is always a matter of negotiation between the employee and the employer (other than in certain circumstances when they cannot agree, and an employer gives the employee two weeks’ notice that they must take leave). Pre-pandemic, however, what the employee did while on leave was entirely up to them.
With the uncertainty of an employee getting trapped across the ditch for an unknown length of time, employers may be forgiven for being wary of any leave requests that involve trans-Tasman travel. Some corporates swiftly instituted policies informing employees that if they got stuck, it could result in the termination of their employment; however, instituting a blanket policy, rather than taking an employee-by-employee stance, may be a bridge too far.
Whether an employer is obliged to continue paying an employee who is unable to attend work, comes down to whether the employee is ready, willing and able to work, and that will largely depend on the position the employee holds.
If there is one noticeable employment change that has emerged from the pandemic, it was how easy it was for many employees to work remotely. If an employee can work remotely, should they get stuck, then this may imply it is unreasonable not to let them go, provided they are prepared to take whatever equipment needed to allow them to work remotely either from Australia or in quarantine, should the need arise. Issues such as who should be responsible for any equipment security and insurance should be discussed prior to departure.
Where an employee holds a position that cannot possibly be performed remotely, then it is arguable that a stranded employee may be ready and willing to work, but in fact, is not able to. In these situations, the employer is not obliged to continue paying the employee (though they may choose to), however, other options such as offering the employee to take additional leave or going on leave without pay should be discussed, before considering termination of the employment relationship. These considerations should be discussed with the employee prior to the employer granting leave, likewise the issue of whether the employee has sufficient leave and/or money to cover the costs and delay a change in Covid-19 status on either side of the border may give rise to.
Finally, there is the situation where an employee is sent overseas on business, and then gets stranded. Although there are no judicial decisions (that I am aware of) that have dealt with this situation as yet, it is likely that the employee’s predicament is directly related to performing his/her role, likewise, the costs that arise from a change in border status. As such, the employer would likely be expected to cover the wages and costs associated with the overseas assignment.
Employers need to consider how they will deal with these various scenarios before they occur and develop a policy with built-in flexibility to accommodate the numerous variations that occur in the different employment relationships within the organisation.
