The information contained in this article is current as at 30 September 2020. To view information on the latest coronavirus updates, please visit our COVID-19 Updates, Webinars and Resources page or alternatively contact us on (03) 9560 2922 for further information on any recent changes.
Back in April, during the initial COVID-19 crisis, the Federal Parliament and Fair Work Commission made a number of unprecedented, temporary changes to employment law, to help both employers and employees adjust to the new situation created by the pandemic.
The most important of these changes was the introduction of the JobKeeper directions into the Fair Work Act, which enabled employers to adjust employees’ work hours, duties and work location, among other matters. An employer’s power to issue JobKeeper directions was scheduled to end on 27 September 2020, but the Parliament has passed new legislation extending the scheme until 28 March 2021 for eligible employers and employees.
Importantly, some employers will still be able to issue JobKeeper directions even if they are no longer eligible for JobKeeper payments.
JobKeeper and the Fair Work Act
The Fair Work Act allows eligible employers to give directions:
- Directing employees to work reduced days or hours,
- Direct employees to work any duties that are within their skill or competency, and
- Direct employees to work from home or another place (not being their usual place of work) from which it is reasonable for them to work.
In addition, the Act allows employers to make the following requests of their employees, which an employee must not unreasonably refuse:
- An employer can ask an employee to work on different days or at different times to that which they normally would, and
- An employer can ask employees to take paid annual leave, provided that the employee will not have less than two weeks accrued leave as a result of complying with the request. It is important to note that this particular provision only applies to employees receiving JobKeeper payments and not to legacy JobKeeper employees (which we discuss below).
Each of these provisions operate despite any other clause in an Award, Enterprise Agreement or an employee’s employment contract.
To continue to be eligible to exercise these rights from 28 September 2020:
- The employer must either be eligible from 28 September 2020 for the JobKeeper Scheme and be eligible to receive JobKeeper payments for that particular employee, or
- Where an employer has previously been receiving JobKeeper payments with respect to an employee, but will not receive payments from 28 September 2020, they will still be able to give JobKeeper directions to those legacy JobKeeper employees provided that their business has suffered a 10% loss of turnover in the relevant quarter and they provide the necessary evidence.
An employer can only issue JobKeeper directions where:
- The need to make the directions or requests are attributable to the coronavirus pandemic,
- The directions or requests are reasonable,
- The employer has given the employee at least three days’ written notice of the employer’s intention to give any direction, or seven days’ in the case of a legacy JobKeeper employee (unless the employee genuinely agrees to a shorter period of notice),
- The employer has consulted with the employee before giving a direction (and the employer must keep a written record of that consultation), and
- The direction is in writing.
There are some limits on the directions that an employer can give to a legacy JobKeeper employee. For instance, a reduction in hours must not ordinarily reduce that employee’s hours below 60% of their pre-COVID-19 hours.
If an employee is unhappy with a JobKeeper direction, they can challenge the direction in the Fair Work Commission. It is therefore important that employers ensure that the directions are reasonable given the situation of the business and the effects of COVID-19 on the business.
Changes to ModernAwards
In April, the Fair Work Commission amended most Modern Awards to include COVID-19 provisions for unpaid pandemic leave and the taking of annual leave at double time for half pay. These changes only operated until 30 June 2020, and since then the Commission has been making changes to Awards on an Award by Award basis. It is therefore important that employers familiarise themselves with the most recent versions of the Awards that apply to their employees, and follow any updates. Modern Awards can be found here.
How can Sharrock Pitman Legal assist?
If you require specific legal advice for your situation or have further queries regarding the JobKeeper Scheme, please feel free to contact us on 1300 205 506, or alternatively fill in the contact form below. See our coronavirus information page for more resources and information regarding the coronavirus pandemic and our work arrangements.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
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Samuel is a Senior Associate at Sharrock Pitman Legal.
He deals with areas of Commercial Law, Employment Law and Charities & Not-for-Profit Law. For further information, contact Samuel on his direct line (03) 8561 3316.