Hitch Advisory principal Olivia Hitchens contends that if retailers are going to be the ones deciding to close doors during lockdowns, they should be able to legally stand down their staff.
During the beginning of the NSW lockdown when essential retail was left up for interpretation and no government mandate to close was given, retailers were facing a legal question of whether or not they could legally stand down their staff.
Hitchens said that according to the Fair Work Act, to legally stand down staff, a business has to encounter a stoppage of work that's out of their control.
"So obviously, COVID is something beyond the retailer's control and whatever restrictions the government impose are beyond their control, everyone's clear that that's the case," she said.
"But the question was, at the beginning of the NSW lockdown - where retail was told they could continue to trade - whether there was a stoppage of work, and whether that ability to trade was a true stoppage.
"One of the things that the Fair Work Act says, is just because your business deteriorates, or there's a downturn, or less sales than normal, or it may not be viable to be open, that's not a stoppage, it almost requires a total stoppage.
"So that was really hard for retailers because most of them were standing there in empty shops, paying rent, paying wages, with no customers," she said.
However, Hitchens adds that moving forward, if retailers are to encounter another lockdown where the decision to close lies with them, the stand down of staff should be considered legal.
"Where we don't have a clear list of essential retail versus non essential, then I'd like to see, retail being able to self diagnose," she said.
"I'm essential or I'm not.
"If they take the decision to close, they should have the ability to stand down. I think that would be really fair approach," she said.
When it comes to navigating the current restrictions, Hitchens added that aside from standing down staff, the main concerns from retailers are rent payments and health and safety in stores.
"Retailers should speak to their landlord as soon as possible, explain their situation and put it in writing.
"Detail and explain how they're using the premises or not, and try and negotiate an outcome as best you can.
"When it comes to safety, you really have to have awesome policies, procedures and processes to make sure your people are safe if you're going to get them to come to work.
"And if they're working from home, same thing, you still have to have procedures, and you have to treat everybody equally and fairly," she said.
Olivia Hitchens is the exclusive legal advisor to the Australian Retailers Association and its members.