The third in our series of articles on employment issues brought about by the COVID-19 pandemic, this article looks at the temporary changes to the Fair Work Act, made to accommodate the JobKeeper Scheme.

The Fair Work Act 2009 was amended on 9 April 2020 to support the implementation of the JobKeeper Scheme (‘JobKeeper Provisions’). The changes are temporary and will be automatically repealed on 28 September 2020.

See our article on the JobKeeper Scheme here.

National system employers in the Fair Work system who qualify and are registered for the JobKeeper Scheme and JobKeeper Payments will be able to give ‘JobKeeper Enabling Directions’ which will allow them to make the following changes temporarily and without consent during the period that the employer claims the JobKeeper Payment for an eligible employee:

  1. Stand down an employee or reduce the hours/days that they work;
  2. Change an employee’s usual duties; or,
  3. Change an employee’s location of work.

The changes also allow employers to make agreements with their employees to change their days and times of work and take annual leave in certain circumstances.

Standing Down/Reduced Hours

A qualifying employer can make a JobKeeper Enabling Direction, that is, direct an employee to work fewer hours (including no hours) if:

  1. the employee can no longer be usefully employed their usual hours because of changes to the business attributable to the coronavirus pandemic, or
  2. because of a government initiative to slow the transmission of coronavirus (such as an enforceable government direction).

The direction must be reasonable having regard to all of the circumstances. Where a direction is unreasonable, it does not apply to an employee.

The employer must give notice of the stand down direction in writing and consult with the employee at least three days prior to issuing the direction. It is strongly advised that a written record of all consultations are obtained for future records.

Where an employee is stood down by the JobKeeper enabling direction, the employee continues to accrue their usual leave entitlements during the stand down period.

Duties

Under the JobKeeper Provisions a qualifying employer may direct an employee to perform any duties that are within their skill and competency provided:

  1. that the duties are safe (with regard to the transmission and spread of coronavirus);
  2. the employee has obtained the necessary qualifications or licenses to perform the duties;
  3. the duties are reasonably within the scope of the employer’s business operations.

The employer must notify and consult with the employee at least three days before issuing a direction outlining changes to the employee’s duties and must ensure that the new duties are reasonable under all the circumstances including any pre-existing child care or other care arrangements. The Fair Work Ombudsman has made it clear that if a direction is not reasonable, then it will not apply to the affected employee. The Employer must also have a reasonable belief that the change is necessary for employment to continue.

Location

A qualifying employer will also be able to direct an employee to work from a location other than their usual place of work (including their home) so long as the following conditions are met:

  1. The location is suitable for the employee to perform their duties;
  2. The employee is not required to travel an unreasonable distance;
  3. It is safe for the employee to perform their duties in the new location;
  4. The duties are reasonably within the scope of the business operations;
  5. The employee performing their duties at the new location is reasonably within the scope of the employer’s business operations.

As with directions to change duties, the employer must notify and consult with its employee three days prior to issuing a written direction, ensure that the change in location is reasonable under all the circumstances and necessary for employment to continue.

Agreements on Different Days, Times, and Annual Leave

The JobKeeper Provisions enable a qualifying employer to come to an agreement with its employees to perform their usual duties on different days and at different times than they would usually work. This option can only be exercised if safe to do so (considering WHS obligations and any measures required to slow the spread of Coronavirus) and if reasonably within the scope of the employer’s business operations. The employee’s usual work hours should not be reduced.

The JobKeeper Provisions will also allow a qualifying employer to request that an employee:

  1. take paid annual leave (if they keep a balance of at least 2 weeks);
  2. take annual leave at half their usual pay for twice the length of time.

The employee has to consider these requests and cannot unreasonably refuse it. Employees subject to one of the above agreements will continue to accrue their usual leave entitlements for the period the agreement applies.

It is important to note that directions or agreements made using these new provisions cannot reduce an employee’s minimum pay rates and other entitlements under the Fair Work Act.

GLOSSARY

JobKeeper SchemeBusinesses impacted by the coronavirus will be able to access a subsidy to continue paying their employees.

JobKeeper PaymentThe Government will provide a fortnightly payment of $1,500 per eligible employee until 27 September 2020.

JobKeeper ProvisionsTemporary amendments made to the Fair Work Act to support the implementation of the JobKeeper Scheme.

JobKeeper Enabling DirectionAllows employers to stand down employees or make changes to work hours, work location and work duties temporarily and without consent.

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