The Government has amended the Fair Work Act (FW Act) to assist employers (that meet the eligibility criteria of the Jobkeeper scheme) to cope with and survive the impact caused by COVID-19.
The amendments to the FW Act are temporary and end on 28 September 2020.
Jobkeeper Enabling Direction (JED)
The amendments enable employers to vary working arrangements for their employees by making a Jobkeeper Enabling Direction (JED).
Importantly, a JED can only be applied by employers who receive Jobkeeper payments on behalf of their employees.
Is the JED reasonable?
Before making a JED, an employer must have evidence to show that the JED was necessary to ensure the employee(s) remain employed.
Employers must also take into consideration all of the circumstances to determine whether a JED is reasonable. This includes any caring responsibilities an employee may have.
Consultation
Before implementing a JED, an employer is required to provide a minimum of 3 days written notice to the employee that they intend to implement a JED (unless a shorter period is genuinely agreed to by the employee the employee)
Duration
A JED continues to be in place until it is withdrawn by the employer. Employers may give an employee a new direction and/or replace the existing direction.
Continued service and leave entitlements
An employee’s continued service and accrual of paid leave entitlements remain as normal (as if the JED had not been put in place).
Rate of pay
An employee must be paid their normal hourly rate of pay. It cannot be reduced by a JED.
If an employee’s JED is to undertake higher duties, the employee must be paid the higher rate of pay. Any applicable penalty rates or other allowance that apply to the hours worked must also be paid.
Disputes
The Fair Work Commission has the power to deal with disputes about a JED.
Penalties
Penalties apply to employers who misuse the temporary amendments of the FW Act.
Types of JEDs
1) Stand down (vary days and hours of work)
An employer may direct an employee(s) if they cannot be usefully employed due to changes caused by COVID-19 or government initiatives (lock downs) in response to COVID-19.
A stand down JED must be reasonable. Employees do not have to comply if the JED is unreasonable.
Employees subject to a stand down JED may request to work temporarily for another employer, participate in training/professional development. An employer may not unreasonably refuse an employee’s request.
An employer may direct an employee to:
- work less hours than they would normally work; or
- not to work on certain days; or
- to stand down an employee (zero hours of work)
Employees do not have to comply with this JED if it is unreasonable.
Exception
A direction to stand down does not apply if the employee is on paid or unpaid leave or is authorised to be absent from work.
2) Vary duties
An employer may direct an employee to perform duties other than their usual duties.
The duties must be reasonable, able to be performed safely and within the scope of the employer’s business operations.
The employee must have the required skills, level of competency and any licence and/or qualifications necessary to perform the duties.
Employees do not have to comply with this JED if it is unreasonable.
3) Location of work
An employer may direct an employee to perform duties at a location different to their normal work place.
For example:
- work from home, provided it is suitable and safe to do so; or
- another office, provided the distance the employee is required to travel is considered reasonable.
4) Annual leave
An employer may direct an employee to take annual leave so long as the employee’s remaining annual leave balance is at least 2 weeks.
Employers and employees may also agree to take annual leave at half pay.
An employee must consider the employer’s request and not unreasonably refuse to take annual leave.
For further information on the Jobkeeper scheme and the changes to the FW Act access these links:
Australia Government – Fact Sheet - Economic Response to the Coronavirus – Jobkeeper payment: Changes in the Fair Work Act.
Fair Work Ombudsman website – Coronavirus and Australia workplace laws – Jobkeeper changes to the Fair Work Act.
These are tough times. Ulton is here for you.
If you require assistance about the Jobkeeper scheme and the changes to the FW Act contact our Human Resources Consultant, Christine Guy direct today.
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