Temporary provisions have been added to the Fair Work Act 2009 (Cth) to allow for employers to take certain action within their business provided that they:

  • Are a national system employer in the Fair Work system; and
  • Are a qualifying employermeaning that they are an employer that qualifies for the JobKeeper scheme and are still receiving JobKeeper payments for their employees; or
  • Are a legacy employermeaning that they are an employer that previously qualified for the JobKeeper scheme and no longer qualify or have elected to not remain in the scheme from 28 September 2020.

The provisions apply until 29 March 2021, however some changes were made on 28 September 2020.

What are the temporary provisions and what does it mean for my business?

A direction for a change in hours, including ‘standing down’ an employee:

If you’re a qualifying employer:

You are able to reduce an employee’s hours or days of work or ask your employees to work on different days and at different times, providing that:

  1. The direction you are providing is safe;
  2. The direction you are giving is reasonable given your business’ operations; and
  3. You are not reducing your employee’s hours overall.

A qualifying employer should:

  1. Notify and give the employee the notice in writing, at least 3 days before providing the JobKeeper change in hours direction. This applies unless the employee genuinely agrees to a shorter timeframe;
  2. Consult with the employee about the direction and keep a written record of the consultation.

If you’re a qualifying employer and want to request that your employee works more hours (whilst the employee is receiving JobKeeper payments), remember that you can:

  1. Request that the employee works more hours, however the employee can refuse the request if the hours are unreasonable (for example, if the employee is a care giver);
  2. You cannot force an employee to work unreasonable additional hours (you need to also give consideration to the entitlements the employee may have in their employment contract, Award or Enterprise Agreement).

If you’re a qualifying employer and wish to give a ‘stand down’ direction you are still able to do so, providing that:

  1. The employee cannot be usefully employed during their usual days or hours; and
  2. The stand down direction is as a result of the Covid-19 pandemic.

If you’re a legacy employer:

You are able to reduce an employee’s hours or days of work, including providing a direction to stand down.

A legacy employer can, (if the employee has previously received JobKeeper payments):

  1. Request that the employee not work on one or more days than the employee usually works;
  2. Request that the employee works for a shorter period than the employee usually works (on a particular day or days).

As of 28 September 2020, a legacy employer cannot:

  1. Give a direction which results in the employee working less than 2 hours on a work day;
  2. Reduce a full time or part time employee’s hours of work to less than 60% of their ordinary hours as at 1 March 2020 (their ordinary hours before the impact of Covid-19).

If you’re a legacy employer, remember that you must:

  1. Notify the employee in writing 7 days’ before the direction to stand down or a change in hours is given, and have a consultation with the employee, including keeping a record of the consultation with the employee. You should also make sure that any direction provided is safe and within your business operations.

 

A direction for a change in ‘usual’ duties:

If you’re a qualifying employer, and wish to issue a direction for a change in usual duties:

  1. You can issue the direction, providing that the duties are within the skill and competency level of the employee;
  2. Your employee has the necessary licence(s) and qualifications to carry out those duties;
  3. The duties are within the scope of your business’ Occupational Health and Safety requirements; and
  4. The duties that you are requesting are reasonable.

You may need to seek advice about what is deemed ‘reasonable’ within the scope of your business.

If you’re a qualifying employer, remember that you must:

  1. Notify the employee in writing, at least 3 days’ prior to giving the JobKeeper change in duties direction;
  2. Consult with the employee about the changes and keep a written record of the consultation; and
  3. Ensure that the change in duties direction does not result in a reduction in pay. Alternatively, if the change in duties direction results in an increase in pay, your employee should be paid accordingly.

If you’re a legacy employer, and your employees have previously received JobKeeper payments, and you wish to issue a change in duties direction:

  1. You need to notify the employee in writing, at least 7 days’ prior to providing the change in duties direction;
  2. Consult with the employee about the changes and keep a written record of the consultation;
  3. Ensure that the change in duties direction does not result in a reduction in pay. Alternatively, if the change in duties direction results in an increase in pay, your employee should be paid accordingly.

If you’re a legacy employer you should remember that:  

  1. The change in duties should still be within the employee’s skill and competency; and
  2. Your employee should have the necessary licence(s) and or qualifications to carry out those duties.

 

A direction for a change in work location:

If you’re a qualifying employer, and wish to change your employee’s location of work:

  1. You need to check that the location is suitable for the work which is to be carried out;
  2. The employee isn’t traveling an unreasonable distance;
  3. The location in which the employee is working is safe.

A qualifying employer, and wish to change your employee’s location of work:

  1. You need to notify the employee in writing at least 3 days before giving the JobKeeper change in work direction; and
  2. Consult with the employee about the changes and keep a written record of the consultation.

If you’re a legacy employer, and wish to change your employee’s work location, you are able to do so providing that the employee(s) has previously received JobKeeper payments.

If you’re a legacy employer, you should:

  1. Ensure that the work location is suitable for the work which is to be carried out;
  2. The employee isn’t travelling an unreasonable distance;
  3. The location in which the employee is working is safe.

A legacy employer should:

  1. Notify the employee in writing at least 7 days’ before giving the JobKeeper change in work location direction; and
  2. Consult with the employee and take a record of the consultation.

 

This article was co-written by Dispute Resolution/Employment Senior Associate, Genevieve Driver.

This article is not legal advice.  It is intended to provide commentary and general information only.  Access to this article does not entitle you to rely on it as legal advice.  You should obtain formal legal advice specific to your own situation.  Please contact us if you require advice on matters covered by this article.

 

Susan Moran

Susan Moran -

Principal

Litigation and dispute resolution specialist