JobKeeper 101 for employers

Posted on May 07, 2020

The Government’s Job Keeper payment scheme provides qualifying employers with $1500 per fortnight for each eligible employee, on condition that they pay that employee at least $1500 per fortnight.

The Fair Work Act 2009 (FW Act) has been amended to give effect to the Job Keeper payment scheme. The amendments allow employers to give directions to employees about changes to their work.

Both the scheme and the changes to the FW Act are temporary and will conclude on 28 September 2020.

Here are a few frequently asked employment questions.

Can an employer stand down an employee whilst receiving the Job Keeper supplement?

Yes. An employer can direct an employee:

  • not to work on a day that they would usually work;
  • work for a lesser period in a day; or
  • work a reduced number of days or hours overall, including no work at all.

However this stand down direction can only be given if the employee “cannot be usefully employed for the employees normal days or hours…because of change to the business…attributable to the COVID-19 pandemic…or to Government initiatives to slow its transmission”.

Can an employee undertake other employment during a stand down direction?

Yes. An employer may not unreasonably refuse a request from an employee to engage in reasonable secondary employment.

When does a job keeper stand down direction not apply?

A Job Keeper enabling a stand down direction does not apply when the employee is taking paid or unpaid leave which has been authorised by the employer.

Can an employer direct an employee to perform other duties?

Yes. The duties in question however must be within the employee’s skill and compentancy and must be reasonably within the scope of the employer’s business operations.

Can an employer direct an employee to work at a different place of work?

Yes. This can be any place that is different from the normal place of work, including the employee’s home, provided that it is “suitable for the employee’s duties”. It must not impose an unreasonable burden on the employee, such a requirement to travel an unreasonable distance.

Can an employee refuse a direction by the employer?

The effect of a Job Keeper enabling direction is that the employee is required to comply with it unless the direction is unreasonable.

A direction may be unreasonable because of the impact that it would have on the caring responsibilities of an employee.

Is the employer required to consult with the employee before giving these directions?

Yes. An employer must consult with the employee, and give the employee written notice of the intention to give the direction at least three days before it is given, or such lesser period if the employee genuinely agrees.

Does the employee continue to accrue leave if any of these directions have been given?

Yes. The period of stand down will count towards the employee’s service and the employee will continue to accrue leave entitlements as if they had not been stood down.

Can the employer request an employee to work on days or times that are different from the ordinary days or times but which do not reduce the employees numbers of hours worked?

Yes. The employee cannot unreasonably refuse such a request.

Can an employer request an employee take paid annual leave?

Yes, provided the request does not result in the employee having a balance of less than two weeks.

An employer and employee can also agree to the employee taking twice as much paid annual leave at half pay.

Again the employee cannot unreasonably refuse such a request.

Stand downs that are not a Job Keeper enabling stand down.

Section 524 of FW Act provides for employers to stand down employees, without pay, where they cannot be usefully employed in certain limited circumstances, which may include in circumstances created by COVID 19. However caution must be exercised when relying on this provision. The Job Keeper amendments discussed above avoid any issues arising from relying on this provision.

Changes to the employment laws have been rapid and complex. Employers are urged to seek legal advice.

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