JobKeeper and Recent Changes to the Fair Work Act

Recently the Fair Work Act was amended to support the announcement of the federal governments JobKeeper wage subsidy program.

The JobKeeper program allows businesses and not-for-profits who have been impacted by the Coronavirus pandemic to access a wage subsidy for their employees. The Government will provide employers with a payment of $1,500.00 per fortnight (before tax) to be administered through the Australian Taxation Office. The payment has been designed so that businesses maintain their connection to employees, which will ensure that operations can be reactivated quickly once the crisis is over.

Fair Work has now announced new provisions which enable employers to give directions called “JobKeeper enabling directions”. Employers can only give enabling directions during periods for which they are entitled to and claim the JobKeeper payment for eligible employees.

These directions enable employers who are eligible for JobKeeper to temporarily:

• Stand down employees
• Change an employee’s usual duties
• Change usual locations of work

Stand Down Employees

Providing employers comply with specific conditions, under this provision employers can give an employee a JobKeeper enabling stand down direction such as:

• Directing an employee to work less days and shorter hours than usual, or
• Directing an employee not to work any hours

So, what are the conditions?

• The employer must be entitled to the JobKeeper payment for the employee
• Employees cannot be usefully employed because of changes to the business attributable to the coronavirus pandemic, or as a result of government initiatives to slow the transmission of the virus.

Employees on stand-down will continue to accrue their usual leave entitlements. Employers must also reasonably consider any requests from employees to take on secondary employment.

Changing Usual Duties

Qualifying employers can issue JobKeeper enabling direction to change duties providing:

• The employer must be entitled to the JobKeeper payment for the employee
• The duties are within the employee’s skill and competency level
• The employee has the necessary qualifications and licenses to undertake the duties
• The duties are within the scope of the business’s operations
• The duties are safe

Change Usual Locations Of Work

Qualifying employers can issue JobKeeper enabling direction to change duties providing:

• The employer must be entitled to the JobKeeper payment for the employee
• The location is suitable for the duties to be undertaken
• Any requirement to travel must be reasonable
• Work undertaken at the location must be safe
• Work undertaken at the location must be within the scope of the business’s operations

Annual Leave

There are also new provisions around paid annual leave. Employers that qualify for the JobKeeper payment for an employee may request that the employee: 

• Take paid annual leave (as long as they have a remaining balance of at least 2 weeks)
• Come to an agreement that the employee take annual leave at half pay

Consultation

In order for a JobKeeper enabling direction to apply an employer must comply with the required consultation and notice requirements. In particular:

• Consult with affected employee/s and their representatives.
• Notify affected employee/s in writing three days before giving the direction.
• Keep written records of the consultation process undertaken.

Timing

A JobKeeper enabling direction remains in effect:

• Whilst an employer is eligible for the JobKeeper payment for the employee; or
• Until the enabling direction is revoked or replaced by an employer; or
• Until the JobKeeper provisions in the Fair Work Act cease on 28 September 2020.

Protections

If an employer misuses the JobKeeper enabling stand down provisions, there are protections in place for employees. An employee and/or their representatives may bring a dispute in the Fair Work Commission regarding a JobKeeper enabling direction. 

If you have any questions regarding the JobKeeper scheme or the provisions under the Fair Work Act, please contact our experienced HR Consultants today for a free consultation.