Leading Australian law firm Clayton Utz has drawn up a major briefing note with a title sounding almost like a sci-fi movie: Covid-19 Response. Coronavirus is a so-called Black Swan, an unexpected event that has a significant and long-lasting effect on the world’s economy. Other Black Swans include 9/11, the global financial crisis of 2008 and Brexit.
The Clayton Utz document covers all the key concerns of business during the pandemic – such as workplace law, healthcare and safety, privacy, contractual compliance, insurance, and tax and finance.
Consumer law: retailers may consider putting up the prices of goods in greater demand because of coronavirus. But Covid-19 Response warns that the Australian Competition and Consumer Commission is likely to step in if it suspects “price gouging”, which includes increases so excessive that they are considered unfair and “against conscience”.
Contracts: coronavirus may prevent companies from fulfilling their contractual obligations. Businesses should decide whether they suspend work, terminate the contract or seek to vary the terms, such as pricing. They should also assess their contracts to determine whether they contain force majeure provisions – that is, unexpected events, such as the pandemic, preventing companies from meeting their contractual obligations.
Employment: companies should carry out a risk assessment to ensure the health and safety of their staff; consider the perception of risk, reputation, culture and mental health impacts against evidence of genuine risk of infection; and manage the impact on operations. Practical tips to prevent the spread of the virus include removing unpackaged food from work kitchens, placing antibacterial gel through the workplace, putting up posters encouraging staff to wash their hands regularly, disinfecting desks, telephones and keyboards often, encouraging staff not to shake hands and telling staff who have mild respiratory symptoms, such as coughing and sneezing, to stay home.
Privacy: the pandemic raises many privacy issues, particularly around the disclosure of personal health information, which is not allowed under the Privacy Act. Personal information, such as where a worker is going on holiday, can only be collected if it is “reasonably necessary”. Finance: material adverse change clauses – contractual attempts to allocate risks to a lender because a Black Swan event has affected the borrower’s ability to repay a loan – may come into play during the coronavirus outbreak. What is “materially adverse” varies greatly from borrower to borrower.
Insolvency: the pandemic has already pushed some companies over the edge into bankruptcy. If a company is in trouble, Clayton Utz urges early engagement and transparency with lenders and contractual counterparts – agreements could include refinancing, forbearance or even a standstill on enforcement, and conservative but achievable recovery plans.
Insurance: it is possible that loss of revenue – through disruption caused to a business by such things as staff absenteeism, cancellations and non-payment of debts – will not be covered. Covid-19 Response lays down key practical steps, including:
• Review your insurance policy
• Notify your insurer or broker that you will be lodging a claim – but don’t be pressured into estimating the amount at this stage
• Record in a diary a chronology of events – what happened, what you did to stabilise the impact on business and what you did to start operating again
• Determine how much cash is needed to finance the business during any shutdown
• Consider how your operations have changed and collate all costs of coronavirus
Education: schools and universities should do their best to stop the spread of the disease, including self-isolation; alternative means of learning, such as online; and practising good hygiene. Teachers should extend deadlines for students in isolation and consider alternative ways of holding exams, rather than gathering students together in one room.
Airports: the key risk points for the spread of coronavirus throw up a host of complicated issues, including protecting public-facing staff and obligations to businesses operating inside airports.
Taxation: business should monitor whether they are eligible for tax relief – for example, the Queensland Government is allowing payroll tax payment and filing deferrals. Companies should consider asking for a deferral because of hardship caused by the pandemic. TQ
The full Covid-19 Response report by Clayton Utz can be read at claytonutz.com