COVID 19: changes to the Fair Work Act 2009 (Cth) give employers more flexibility

The Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 (Cth) provides for temporary amendments to the Fair Work Act 2009 (Cth) to assist those employers who are eligible for the jobkeeper scheme. The amendments provide for the implementation of further flexibility to deal with the impact of COVID-19.

The amendments provide for employers to (from today):

  • give a jobkeeper enabling stand down direction;
  • give a direction to an employee about the duties to be performed and location of work;
  • make an agreement about the day or times an employee is to perform work; and
  • make an agreement about the taking of annual leave, including at half pay.

Jobkeeper enabling directions

Jobkeeper enabling stand downs

A jobkeeper enabling stand down allows an employer to give a direction to an employee to:

  • not work on a day or days on which the employee would usually work; or
  • work for a lesser period than the period which the employee would ordinarily work on a particular day or days; or
  • work a reduced number of hours compared with the employee’s ordinary hours of work (noting that the hours can be reduced to nil).

To be able to give the jobkeeper enabling stand down direction the following must be satisfied:

  • the employer must qualify for the jobkeeper scheme;
  • the employee cannot be usefully employed for their normal days or hours of work because of changes to business attributable to:
    • the COVID 19 pandemic; or
    • government initiatives to slow the transmission of COVID 19; and
  • the direction is safe, having regard to the nature and spread of COVID-19 (the consideration of what is safe is not limited to this).

For the jobkeeper enabling stand down period:

  • the employer must pay the employee each fortnight) the greater of the $1500 jobkeeper payment or the amounts payable to the employee in relation to the performance of work during the fortnight (including all wages, bonuses, loadings, penalties); and
  • not reduce the employee’s base hourly rate of pay for each hour of work performed.

The jobkeeper enabling stand down direction does not apply to the employee during a period when the employee:

  • is taking paid or unpaid leave that is authorised by the employer; or
  • is otherwise authorised to be absent.

If an employee is subject to a jobkeeper enabling stand down, the employee can request:

  • to engage in reasonable secondary employment;
  • training; or
  • professional development.

An employer has to consider the request and cannot unreasonably refuse the request.

Changes to duties and location

An employer can give an employee a direction to perform any duties that a within the employee’s skill and competency provided that:

  • the employer qualifies for the jobkeeper scheme when the direction is given;
  • the duties are safe;
  • the employee has any necessary licence or qualification; and
  • the duties are reasonably within the scope of the employer’s business.

An employer can give an employee a direction to perform duties at a place different from the normal place of work (including at home) provided that:

  • the employer qualifies for the jobkeeper scheme when the direction is given;
  • the location is suitable for the duties;
  • the duties can be safely performed at that location; and
  • the duties are reasonably within the scope of the employer’s business.

A jobkeeper enabling direction given to an employee about the duties or location of work has no effect unless the employer reasonably believes that the direction is necessary to continue the employment of one or more employees.

General requirements for jobkeeper enabling directions

A direction must in writing (the regulations may provide for a prescribed form).

The employer must consult with the employee. The consultation obligation requires an employer to give an employee at least 3 days’ written notice of its intention to issue the direction and to consult with the employee (or their representative) about the direction prior to giving the direction.

The employer must keep a written record of the consultation.

A jobkeeper enabling direction given to an employee does not apply if the direction is unreasonable in all of the circumstances.

A jobkeeper enabling direction will cease to have effect at the start of 28 September 2020 unless withdrawn or replaced prior to that date.

Service

The period during which an employee is subject to a jobkeeper enabling direction will count as service.

An employee who is given a jobkeeper enabling stand down direction will continue to accrue leave as if the direction had not been issued. Redundancy pay and notice of termination will be calculated as if the direction had not been issued.

Changes to days of work

An employer can request that an employee perform duties on different days or at different times. An employee has to consider the request and cannot unreasonably refuse the request.

The agreement will be authorised if:

  • the employer qualifies for the jobkeeper scheme when the agreement is made;
  • during those days and times the duties can be safely performed and are reasonably within the scope of the employer’s business; and
  • the employee’s ordinary hours of work are not reduced.

Annual leave

An employer can request that an employee take paid annual leave (provided it will not result in the employee having less than 2 weeks’ leave accrued). An employee has to consider the request and not unreasonably refuse the request.

The employer and employee can agree to the employee taking twice as much annual leave, at half pay. The agreement will be authorised if the employer qualifies for the jobkeeper scheme when the agreement is made.

If an employee agrees to take annual leave at half pay, leave will continue to accrue as if the agreement had not been made. Redundancy pay and notice of termination will be calculated as if the agreement had not been made.

Disputes

The Fair Work Commission has the power to deal with disputes.

Protections

If an employer purports to give a jobkeeper enabling direction that is not authorised under the legislation and the employer knew that this was the case, the employer will have breached a civil remedy provision.

The maximum penalties for contravention of this provision are up to $63,000 per contravention for corporations and up to $12,600 per contravention for an individual.

If you would like to discuss the implications for your business please contact our Employment + Workplace Relations Partner, Erin Lynch.

Erin Lynch, Partner
M +61 477 330 202
E erin.lynch@vincentyoung.com.au