The newly introduced JobKeeper scheme and subsequent changes to the Fair Work Act 2009 (Cth) have now come into effect. The changes made to the Act gives employers and their employees more flexibility during the Corona Virus pandemic. Importantly, the changes in the Act only apply to those employers who qualify and remain qualified for the JobKeeper scheme, and those employees who are in receipt of the JobKeeper payment from the Australian Taxation Office.

JobKeeper enabling directions

Eligible employers may give eligible employees a number of directions called JobKeeper enabling directions. Prior to giving an enabling direction, an employer is required to discuss with their employee and must give the employee at least three days’ written notice of their intention to give the direction, unless a lesser notice period is genuinely agreed to. The employer must keep a record of the discussion.

In addition to the individual requirements of each provision, which are outlined below, a JobKeeper enabling direction will not apply to an employee if the direction is unreasonable in all of the circumstances.

By way of example, a direction to work different hours or days may be unreasonable if the impact of this direction would not allow the employee to undertake their caring responsibilities. Likewise, to change an employees’ work location may be unreasonable if the distance the employee must travel to the new location is too far away.

An enabling direction must be written and will be considered in effect until it is either withdrawn, revoked by the employer, replaced by a new JobKeeper enabling direction or until the amendments to the Act cease on 28 September 2020. Any employee who is subject to a JobKeeper enabling direction will continue to accrue leave entitlements as if the direction had not been given.

  1. JobKeeper enabling stand down direction

An employer can give an employee a stand down direction, directing them to:

  • not work on a day or days they would typically work
  • work for a reduced period than they would ordinarily work on a particular day
  • work a reduced number of hours (including reduced to nil).

For a JobKeeper enabling direction to be given, the employer must:

  • show that the direction is safe having regard to the nature and spread of Corona Virus; and
  • ensure that the employee could not be usefully employed for their usual days or hours of work because of changes to the business due to the pandemic, or government initiatives implemented to slow the virus’ transmission.

Employees whose hours have been reduced as a result of a JobKeeper stand down direction must not have their base rate of pay reduced below that which would have applied if the JobKeeper enabling direction had not been given. Employees subject to a JobKeeper stand down direction are able to request permission from the employer, which must be considered and not unreasonably refused, to seek secondary employment, training or professional development. This means an employee could receive the $1,500 JobKeeper payment from one employer and use the rest of their available time to engage in other paid work, training or professional development.

An employee may take authorised paid or unpaid leave (for example, annual leave) during all or part of a period that the stand down period would otherwise apply.

  1. Employee duties and location of work direction

An employer may give an employee directions about their duties and location of work. An employer may direct an employee to do any duties if it is within the employee’s skill and competency, safe and reasonably within the scope of the employer’s business operations.

Further, the provisions authorise an employer to direct an employee to perform duties at a place that is different from the employee’s normal place of work, including the employee’s home, if the place is suitable for the employee’s duties and the duties to be performed at the place are both safe and reasonably within the scope of the employer’s business operations.

It is important to note that a JobKeeper enabling direction relating to an employee’s duties or location of work will have no effect unless an employer has information that leads them to reasonably believe the direction is necessary to continue the employment of the employee.

JobKeeper Agreements

  1. Changes to days of work by agreement

An employer may request that an employee change their working days or usual times of work (as distinct from reducing the number of hours of work) if it is safe and reasonably within the scope of the employer’s business operations. Once a request is made, the employee must consider the request and not unreasonably refuse the request.

  1. Taking paid annual leave by agreement

An employer may request an employee to take annual leave if complying with the request will not result in the employee having a balance of paid annual leave of fewer than two weeks. Once requested, the employee must consider the request and not unreasonably refuse the request.

An employer and employee may also agree for the employee to take twice as much paid annual leave, at half the employee’s rate of pay.

Disputes

Under the amendments, the Fair Work Commission may deal with disputes about JobKeeper enabling directions, including by mediation, conciliation or arbitration. The Commission has the power to make orders giving effect to, setting aside or substituting JobKeeper enabling directions made by an employer or any other order the Commission considers appropriate. Any orders made would not apply after 28 September 2020.

While employers can make an application to the Commission to deal with a dispute under these provisions, it is unclear the extent to which the Commission would intervene in circumstances where the employee refused to take leave or change their days and time of work.

Protection of workplace rights

The amendments to the Act add to the existing protections of workplace rights such that an employer cannot take adverse action against an employee because they:

  • agreed or not agreed to perform work on different days or at different times
  • agreed or not agreed to take annual leave
  • made a request to undertake secondary employment, training or professional development.

As with all general protection provisions in protecting workplace rights, it is the employer who must prove that any decision relating to an employee’s employment is not because they exercised or did not exercise a workplace right. A breach of these provisions can give rise to a civil penalty against the employer and individuals who were involved in the contravention, so extreme caution must be taken.

Misuse of JobKeeper enabling directions

If an employer misuses the JobKeeper enabling directions, they may be liable to a civil penalty of up to $126,00 for a serious contravention, such as knowingly giving a direction to employees that is not authorised by these new provisions.

Next steps for employers

First, employers need to determine whether they qualify for the JobKeeper scheme. If they a, re eligible and qualify it will be necessary to plan any JobKeeper enabling directions or requests, to ensure compliance with the technical requirements of the Act.

How can we help?

If you like further information, contact our office on (07) 3036 0649 or email tracey@robinsonnielsen.com.au.

This publication is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Readers should take legal advice before applying the information contained in this update to specific issues or transactions. For more information or specific advice on your circumstances please contact tracey@robinsonnielsen.com.au.