It is important that you develop a plan, with your employees' involvement, that allows you to flexibly respond to different scenarios during a pandemic.

Any proposals for change must be negotiated with the employee in good faith. An employee cannot be forced into any unilateral changes to his or her employment agreement to address a pandemic situation. If there is a collective agreement in your workplace, you will need to negotiate any proposed changes with the union.

When negotiating any changes to an individual employment agreement an employer must:

• follow any processes set out in the employment agreement around negotiating variations
• provide the employee with a copy of the proposed variation
• advise the employee that he or she is entitled to seek independent advice about the proposed variation
• give the employee a reasonable opportunity to seek that advice
• consider and respond to any issues that the employee raises.

The health risks posed by an influenza pandemic may be severe. While you need to involve your staff in discussions on how to work safely, ultimately you as an employer are responsible and need to ensure that all practicable steps are taken to maintain a safe and healthy workplace.

As a last resort, you can direct people to work in a different way if it is an essential step to maintain health and safety in the workplace. Maintaining health and safety is an implied provision of all employment agreements, impacting on both employers and employees. The contents of an employment agreement cannot undermine an employee's health and safety.

See also information on Varying an Employment Agreement

This advice is given as a guide. Employees and employers are advised to seek their own advice depending upon the circumstances they face.