Hunt & Hunt Lawyers provided a webinar on the supply chain, commercial & employment law issues

24.03.2020 Collins Rex

Russell Wiese and David Thompson of Hunt & Hunt Lawyers recently provided a webinar updating the trade and logistics community of the commercial law and employment issues associated with COVID-19. A summary of the Australian law issues are set out below. The issues will differ from jurisdiction to jurisdiction and it is importation to obtain local advice. If you need assistance with Australian trade law issues please contact Russell at rwiese@huntvic.com.au. If you need employment law assistance, please contact David at dthompson@huntvic.com.au.

CONTRACTING:

  • Assess how COVID-19 impacts your ability to meet contracts, document the impact and your response
  • Assess with the COVID-19 impacts is due to a change in law, regulation, third party action or your own voluntary response
  • Review what contracts you have in place and how those contracts deal with unexpected events
  • When seeking to change the terms of supply/purchase, first see what the contract says
  • Play it safe – if the parties agree to vary the terms of the contract of sale/purchase, document it in writing
  • Ensure that agreeing to short-term variations to a contract doesn’t constitute an unintended waiver of your rights
  • Understand the term ‘Force Majeure’ and how (if at all) this concept affect your rights; also understand how force majeure is applied in different contracts and in different jurisdictions
  • Understand that FM clauses are not necessarily automatic or enforceable
  • Understand the implications of termination of a contract and what damages can be recovered
  • Beware of unfair/discriminatory/one sided contract terms when dealing with small businesses or consumer
  • Ensure no deceptive/misleading statements are made on your website and in any standard documents – statements that were once true, may now be incorrect
  • Make sure you comply with consumer law when changing or cancelling services
  • Know which law applies to your contract
  • Understand the legal concept of frustration of contract, and its implications; the rules around Frustration are much stricter than those around FM
  • Understand the implications for your long-term contracts and how a breach will affect these
  • Be aware of the implications and ramifications of insolvent trading
  • Be aware of the address to which statutory demands are being sent – is anyone there to receive them?
  • Be aware of the implications of Competition Law; you may be in breach if you agree to cooperate with competitors and be judged in a post-COVID-19 world

EMPLOYMENT:

  • Generally, an employee may be stood down without pay during a period in which that employee cannot be usefully employed because there has been a stoppage of work for which the employer cannot be held responsible
  • Be aware of any contractual clauses or enterprise agreements that specifically exclude the above
  • Employers – activate leave provisions, if leave is available
  • Employees – if you have no leave or refuse to activate it, you can be forced to take unpaid leave if there are valid reasons to stand down without pay
  • Be aware of the need to re-activate employments, when conditions improve
  • Government instructed self-isolation does not obligate an employer to pay wages
  • If an employer insists an employee self-isolate, wages remain due if the employee has indicated a willingness and an ability to work
  • Employees are obligated to advise risk (e.g. interstate or overseas travel, exposure to infected individuals, etc)
  • Employees travelling for work are entitled to wages and expenses if they are in a lockdown situation
  • Employees dealing with school closures will generally be entitled to carer leave
  • Employers are required by law to take reasonable O H & S measures to reduce the risk of infection

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