In brief - The unprecedented COVID-19 Pandemic has seen all States and Territories except New South Wales, Victoria and the Australian Capital Territory impose strict border control restrictions. These closures may have significant impact on national businesses, contractors, employers and employees who operate interstate.

This article was updated on 7 April 2020 to reflect the most recent changes to border controls in WA and QLD, including FIFO workers.

It remains unclear how long border control measures will remain in place, but it is predicted that closures will be in place for up to six months. It is essential that employers consider alternate working arrangements to accommodate for these closures and to protect the health and safety of persons in the workplace.
 
As of 7 April 2020, the following restrictions are in place:

Border Restrictions in each State and Territory*

Queensland (Qld)

Only Queensland residents and 'exempt persons' will be permitted to cross the border. Only 'critical resource sector employees' will be permitted to enter. All interstate arrivals from COVID-19 hotspots or overseas arrivals must self-quarantine for 14 days.
See - https://www.qld.gov.au/about/newsroom/queensland-border-restrictions

New South Wales (NSW)

No current state-based travel restrictions however all Australians are advised to cancel or postpone non-essential domestic travel.
See - https://preview.nsw.gov.au/covid-19/travel-and-transport-advice

South Australia (SA)

All travelers arriving interstate are required to self-quarantine for 14 days unless exempted such as essential services.
See - https://www.sahealth.sa.gov.au/wps/wcm/connect/public+content/sa+health+internet/health+topics/health+topics+a+-+z/covid+2019/covid-19+response/travel+restrictions+in+south+australia+-+covid-19

Victoria (Vic)

No border restrictions currently in place. Stage 3 restrictions. Non-essential domestic travel is restricted and people are urged to stay at home.
See - https://www.dhhs.vic.gov.au/victorian-public-coronavirus-disease-covid-19

Western Australia (WA)

From 5 April 2020, only exempt persons will be permitted to enter WA. Persons seeking an exemption must complete an exemption application form.
See - https://www.wa.gov.au/government/document-collections/covid-19-coronavirus-state-of-emergency-declarations

Tasmania (Tas)

All non-essential travellers arriving in Tasmania will be required to enter self-isolation for 14 days in government provided accommodation on arrival in Tasmania.
See - https://www.coronavirus.tas.gov.au/travellers-and-visitors/coming-to-tasmania

Australian Capital Territory (ACT)

No border restrictions to travellers within Australia but domestic travel is not advised.
See - https://www.covid19.act.gov.au/

Northern Territory (NT)

All non-essential travellers arriving at Territory borders must self-quarantine for 14 days upon arrival in a designated location unless covered by an exemption category.
You must be able to prove your status as an essential traveler
See - https://coronavirus.nt.gov.au/community-advice/border-controls

International Arrivals to anywhere in Australia

Travelers returning to Australia by sea or air into any State or Territory are required to complete 14 days of quarantine in the city of arrival in accommodation provided by the Government (generally a hotel). A traveler will be required to complete another 14 days of self-quarantine if their final destination is another State or Territory.  Failure to self-quarantine will and has resulted in significant penalties.

 
*In addition, restrictions are in place for travel in and out of indigenous communities.
  
Case Study - Queensland

The Queensland Government has implemented amongst the most stringent border control measures to combat the spread of COVID-19.  From 3 April 2020, only Queensland residents and those considered "exempt persons" will be permitted to cross the border into Queensland. The following restrictions apply:

  • Queensland residents who are returning to Queensland from overseas must self-quarantine for 14 days in a nominated place (ie a hotel) as instructed by a relevant government officer.

  • Queensland residents returning from a known COVID-19 hotspot* within Australia will be required to self-quarantine even if deemed an exempt person. 

  • Queensland residents returning from another place within Australia that is not considered a COVID-19 hotspot are not required to self-quarantine.

 *A COVID-19 hotspot is a place where a cluster of COVID-19 cases have been identified which is declared by the Queensland Government's Chief Health Officer (CHO).
 
Exempt persons include the following critical services:

  • National and State security workers

  • Essential health and emergency services

  • Transporters of goods and freight including food

  • Critical maintenance and repair services to critical infrastructure 

  • Critical resource sector employees (see below)

  • Federal, State, or local government workers who are required to enter Queensland and perform official duties

 Exemptions will also be afforded to persons on compassionate and other grounds including:

  • Persons needing to obtain access to essential medical treatment including visitors of terminally ill family members

  • Interstate boarding school students returning home

  • Carers or relatives of dependent individuals in Queensland

  • Persons required to travel by law (i.e. Court, parole or bail conditions)

People who meet the criteria to be deemed an exempt person are encouraged to apply online for a Queensland entry pass to reduce delays when crossing the border.
 
These restrictions allow for the continuation of delivery of essential goods and services for Queenslanders.
 
Exemption for border communities
 
To ease the burden on residents who live near a Queensland border, the Queensland Government have introduced an exemption that allows people who live near the border of Queensland, NSW, SA or the NT who ordinarily work in Queensland to continue to travel for that work or study.
 
For example, residents and workers who live on the Coolangatta-Tweed border will still be permitted to cross the border to attend work or access essential services.
 
Importantly this exemption is not restricted to people working for essential services. However workers are required to remain in Queensland for only as long as reasonably necessary for work.
 
The exemption extends to persons living in border communities who traverse the border to access essential goods and services or for the purposes of child care and education.
 
If a resident is considered an "exempt person" they can apply for a Queensland entry pass to freely cross the border. Heavy freight vehicles carrying goods do not need a pass and may freely cross the border.  Please see https://www.qld.gov.au/border-pass to apply for an entry pass. Queensland residents are not required to apply for an entry pass.
 
Enforcement officers will monitor road entries, rail and sea ports. An entry pass will need to be displayed by exempt persons or employment details of FIFO workers. Failure to comply with a direction of an enforcement officer or quarantine measures may attract a fine $13,345 for individuals and $66,672.50 for corporations.  Enforcement officers can issue an 'on the spot' fine for lesser amounts ($1334.50 for individuals, or $6,672.50 for corporations).
Where your business provides services on both sides of a state border, you will need to consider how you will be able to provide services if your staff cannot freely travel.
 
Where work from home arrangements are available, employers should activate these plans as soon as practicable. Where no such arrangements are possible, employers should commence discussions with staff immediately as to what leave or other arrangements might be put in place while the border remains closed. 
 
Leave entitlements for employees

  • If a staff member is not able to attend work because of the border closures or quarantine measures, employers need to understand what entitlements might be available:

  • Where an employee cannot attend work because of the border closures, and they are not unwell and are not caring for a member of their household, personal/carer leave provisions will not apply;

  • Where an employee has a right to accrued paid leave under an Award, the National Employment Standard or an enterprise agreement (for example annual leave, long service leave) an employer might reach agreement with the employee to start accessing that leave from Wednesday if they can no longer attend work;

  • Non-permanent employees (such as casuals), new starters and employees without any leave accruals may not have an entitlement to paid leave;

  • Where an employee can work from home during the border closures or quarantine (because they are not unwell), arrangements might be able to be made to support them to do so. In that case, the employee might continue to be paid as per usual.

  • Where an employee cannot attend work, it will not give rise to a stand-down for the purpose of the Fair Work Act 2009 (Cth).

Employers might be able to negotiate with some staff to take leave in advance or afford other types of paid leave arrangements to keep employees engaged at this difficult time. Where an employer can afford to make such arrangements, the terms of such arrangements should be made clear and confirmed with the employee in writing. 

Employers should also understand the benefit available under government assistance packages including the Jobseeker and Jobkeeper payments.

Either way, it is important that employers take steps to communicate with workers now about how the border closures will affect their work.

Fly In Fly Out (FIFO) Workers

Queensland

From 4 April 2020, only "critical resource sector employees" will be permitted to enter Queensland from interstate. This includes only personnel who are critical to the ongoing operation of the resource activity or the resource supply chain.
Critical resources sector employees are people who cannot work remotely (from an interstate location) and cannot be replaced by local workforce, and:

  • are essential to the safety of the workforce; or

  • are essential to operations; or

  • their absence from the site would result in a significant impact to production; or

  • they must undertake time-critical work.

Examples include nursing and medical services, workers involved in technical operations, maintenance and repair of plant and infrastructure, fire and rescue and mining rescue teams and workers required to undertake safety maintenance and compliance activities.
See - https://www.business.qld.gov.au/industries/mining-energy-water/resources/covid-19/restrictions-fifo-travel

Workers will be required to provide evidence of their role, FIFO status and who they are employed by. Employers in these sectors will need to comply with the health and safety requirements prescribed by the CHO in relation to social distancing, hygiene and infection control measures to manage risks associated with COVID-19.

Western Australia

FIFO employees flying to WA for work purposes need to consider WA's tough border closures. WA borders are closed to anyone unless deemed an exempt person. Exemptions apply to essential services including health and medical, emergency services, freight workers, people providing specialist skills, judicial services and on compassionate grounds.  Exemptions are also being made for FIFO workers and their families however they must self-isolate for 14 days every time they re-enter the State. 

Protection Measures

Mining giants in Australia including BHP, Rio Tinto and Fortescue metal anticipated these restrictions and have implemented alternative work arrangements including:

  • instituting flexible roster arrangements to minimise flights and interstate movement and to allow for self-quarantine requirements

  • performing temperature checks at airports, reducing the number of workers on site at any one time and extending dining hall times to reduce numbers and maximise social distancing

  • relocating families to the State or Territory in which they work to remove the need to fly interstate

  • optimise hygiene and social distancing on site and on board flights

Enforcement and Penalties

Under the Biosecurity Act 2015 (Cth) it an offence to fail to comply with a public health directive. This may attract penalties of maximum $63,000 fine or up to 5 years imprisonment or both. Each state and territory has imposed significant penalties for failure to comply with self-quarantine measures imposed under the various Public Health Acts as below:   

State / Territory

Authorising Act

Penalty for breaches

New South Wales

Public Health Act 2010 (NSW)

$11,000 fine or 6 months' imprisonment

Queensland

Public Health Act 2005 (Qld)

Fines up to $13,345

Victoria

Public Health and Wellbeing Act 2008 (Vic)

$20,000 for individuals and $100,000 for companies

Western Australia

Emergency Management Act 2005 (WA) and Public Health Act 2016 (WA)

$50,000 fine or possible imprisonment

South Australia

Public Health Act 2011 (SA)

Maximum fine of $25,000

Australian Capital Territory 

Public Health Act 1997 (ACT)

$8,000 fine

Northern Territory

Notifiable Diseases Act 1981 (NT)

Fine of $1256 or 6 months' imprisonment

Tasmania

Guided by the Australian Government

$16,800 fine or 6 months' imprisonment

Actions to take going forward

To comply with the duty to protect employees, clients and the community employers should:

  • remain up to date with COVID-19 information provided by the Federal Department of Health as well as information provided by State Health Departments;

  • undertake risk assessments in respect of the potential effect of COVID-19 on their business, their workforce and the community. If any particular staff members are at particular risk, specific risk management measures should be implemented;

  • keep staff updated with control measures;

  • advise employees of their personal duty to take all reasonably practicable actions for their own health and safety, and the health and safety of others in the workplace; and

  • require staff to contact an allocated contact person with any queries of concerns they have relating to COVID-19 and to advise if they have contracted the virus or come into contact with it.

  • comply with the control measures, consider how staff can comply with the control measures, deploy staff to work at home where possible and consider what other arrangements can be put in place for staff who cannot work remotely.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.