How to have a merry Covid Safe Christmas

Largely as a result of the pandemic, spending on clothing, footwear and accessories is set to be down 12.2 per cent and department stores are expected to experience a 2 per cent decline on a year ago, according to figures from Roy Morgan. In the lead up to Christmas, retailers are no doubt hopeful that they will recoup some of the losses suffered by crippling lockdowns and general impacts of Covid-19. 

However, with the period of higher volumes of customers and staff soon to be before us, retailers must be aware of their obligations to maintain Covid-safe businesses to protect customers and staff. To make things more complicated, requisite Covid-Safe measures differ from state to state due to different governments mandating different measures, and these measures can change quickly depending on the state of play of the coronavirus. 

Covid Safe measures

All retail premises in Victoria are currently permitted to be open, however they must have a CovidSafe Plan and meet strict density requirements (being one person per four square metres). A CovidSafe Plan is a document prepared by a business which helps them protect their staff and customers and prepares them for a suspected or confirmed case of Covid-19 in the workplace. 

This can be compared to New South Wales where restrictions on retail are more relaxed than in Victoria. There, retailers are encouraged to register as Covid Safe.  To register as Covid Safe, a business must have completed a Covid-19 Safety Plan, with maximum capacity of one customer per four square metres of publicly accessible space for retailers (excluding supermarkets, food markets and grocers). 

Retailers must be aware of and comply with any density requirements for the states in which they operate (which may change from time to time), and ensure foot traffic into the business does not exceed these density requirements during the high volume Christmas lead-up. As retailers typically open their businesses for longer hours in the lead up to Christmas, this year, businesses may consider extending their trading hours for the Christmas period, lease arrangements permitting, to accommodate for density requirements and to spread out the times that customers enter the store. 

Retailers should also consider how to manage employee enquiries or objections to Covid Safe measures, including wearing face masks, social distancing, requiring employees be tested for Covid-19, additional cleaning requirements and managing difficult customers. Management should be fully trained and prepared should these sensitive issues arise.  

Employers can direct their employees to be tested for Covid-19 and attain a negative result before commencing work, however any such request should be reasonable in all circumstances. For example, retailers in higher risk industries (such as supermarket work premises) may be able to validly ask their staff to complete weekly Covid-19 tests, however for a standard retailer in a low-risk industry, this could be seen as unreasonable. 

Penalty rates

In extending operating hours, retailers need to ensure they adhere to penalty rate requirements specified by applicable industrial instruments. For example, the General Retail Industry Award 2020 provides additional wage loadings (referred to as ‘penalty rates’) for employees who work after 6.00pm on Monday to Friday and on Saturdays, Sundays and Public Holidays. In addition, for employees covered by the General Retail Industry Award, casual penalty rates increased for retailers from 1 October 2020, and a 1.75 per cent increase to the national minimum wage will commence on 1 February 2021.

On top of these penalty rates, employees may also be entitled to overtime payments where they work outside the span of ordinary hours or in excess of their ordinary hours per week (generally speaking, 38 hours per week for full-time employees, or the agreed number of hours for part time employees). There are many instances where penalty, overtime rates and other allowances in industrial instruments can be enlivened, therefore receiving individual expert advice tailored to each retailer’s specific situation is recommended. 

Managing mental health

It is also worth considering the impact working longer hours have on employees’ mental health, particularly considering the tribulations experienced in 2020. Many employees, particularly in Victoria, may have been stood down or worked reduced hours for a large portion of 2020, and an increase in working hours in the lead up to Christmas could be a ‘shock to the system’.  

Employers need to be aware that they have a legal obligation to provide a safe and healthy work environment for all employees, as far as reasonably practicable, which includes considerations of both physical and psychological safety of employees.  Should employers notice changes in an employee’s behaviour or engagement at work, they should take the time to understand these behavioural changes and put reasonable measures in place to avoid any negative occurrences that may stem from it.

End-of-year celebrations 

The office Christmas party is going to look very different this year. End-of-year celebrations are often a time when typical employee behaviour changes, which can be facilitated by good spirits and alcohol. While most functions go off without a hitch, occasionally employers find themselves dealing with a mess to clean up the day after, which can include allegations of sexual harassment, discrimination, bullying, violence and injuries. 

A work-sponsored end-of-year function is an important part of the employment relationship and often assists in building strong working relationships, however it is important to note that employers still own a duty of care and obligations to staff at these functions to ensure the health and safety of their people.

Prevention is always better than cure, so before any work-related event, employers should remind their staff of appropriate behaviour at the event and ensure their business has workplace policies in place including those dealing with standards of conduct, consumption of alcohol at work events, discrimination, harassment and bullying.  

Retailers should ensure Covid Safe measures exist at the end-of-year function, which may include temperature checks, masks, social distancing, good hygiene, monitoring intoxication levels, and recording attendance for contact tracing. Staff should be made aware of the Covid Safe measures before the event, directed that they need to follow the right measures and asked to stay home if they are feeling unwell. 

It is also worth ensuring the venue of the function is safe and appropriate, controls alcohol consumption, and if the venue is a shared (rather than a private venue) and/or should you have other stakeholders attend, such as suppliers or families of staff, remember that it can be harder to control the behaviour of third parties. 

Should an incident happen at an end-of-year function, employers should seek advice before taking any next steps if they do not have a clear understanding of all the legal risks at play – it is very easy for an employee to lodge an unfair dismissal claim if sacked due to an incident which occurs outside of the workplace. 

The lead up to Christmas can be a challenging time for employers navigating the legal responsibilities they have to their staff and customers, however with proper planning and a sensible approach, employers can minimise their risk, and have a successful end to 2020.