Members of the Waste Contractors and Recyclers Association (WCRA) have being alerted to their responsibilities to employees who may be exposed to Covid-19.
Fishburn Watson and O’Brien (FW&O) law specialists have advised WCRA that members should remind workers of their obligations of the Work Health and Safety Act 2011. FW&O principal, Ross Fox advised that waste contractors and recycling employers with large workforces should consider preparing a COVID safe policy.
He explained that employers in NSW had an obligation to ensure a safe workplace and this meant providing employees with personal protective equipment such as hand sanitiser and gloves.
“It may be prudent for employers to provide personal protective equipment to their employees, particularly those with public-facing duties,” Fox said. He added that many contractual obligations may become difficult to meet as a result of the pandemic.
“This may result in members being unable to comply with contractual and service obligations, such as a lack of staff to drive trucks. It’s important to get legal advice up front on these matters,” he advised.
Fox referred to a Force Majeure clause within many agreements that gives parties special rights if circumstances arise that make it impossible to perform the agreement. The text of each Force Majeure clause is different, so it is important to check specific agreements.
“If the Covid-19 pandemic makes performance of a contract impossible, then it is possible that Force Majeure clauses may apply. Alternatively, the doctrine of frustration of contract may apply to relieve parties of obligations.
“We recommend that any organisation that is considering invoking a Force Majeure clause, seeks specific legal advice as there are often specific requirements and legal impacts,” he said.
Unpaid carers leave
Meanwhile, Fox said that workers without personal or carers leave such as casuals can take leave, but they are not entitled to be paid for it.
“Workers with no accord paid personal/carer’s leave may wish to take paid annual leave instead. Annual leave must be taken by agreement between the worker and the employer, but employers are not entitled to unreasonably refuse a request for annual leave.
Fox has gone further and alerted members to the serious financial impacts on the supply chain and that some may need to delay projects and investment.
“Where members businesses are experiencing financial distress, it is critical to seek advice on protection from creditors and legal obligations to avoid default and personal liability. At this time, personal asset protection is also likely to become critical for members,” he said.