The JobKeeper legislation made some important changes to the Fair Work Act. These changes are in place until the end of 27 September 2020. If they need to be extended a review will occur in mid-July. The changes are intended to override inconsistent terms of the National Employment Standards, any applicable award or agreement or contract of employment. They apply only to Jobkeeper eligible employers.
The directions that an employer can make under the changes to the Fair Work Act are limited. Directions are not authorised unless, at the time that the direction is given, the eligible employer reasonably believed that the direction is necessary to continue the employment of one or more employees (not necessarily the employee subject to the direction). Hence, any employer who issues a direction should keep a record of doing so and why they held the particular belief: more is said below about written records being required.
The JobKeeper legislative changes touches on stand down, altered hours of work, work place effects, annual leave and training and other work.
There is uncertainty around the current law about standing down staff. The legislation clarifies that an employer can direct an employee to not work on some (or all) days, or work fewer hours on any working day.
An employer may take this action if they cannot usefully employ the staff, due to being directly related to COVID-19 or government measures to slow its transmission and, further, that the minimum payment conditions are met.
Altered Work Hours
Another option for employers is to alter hours and place of work.
Provided that the business was (and remains) eligible for the JobKeeper scheme, an employer may direct an employee to do any of the below, provided the direction is safe, lawful and reasonably within the scope of the business’ operations, and the required procedures are followed:
- Undertake alternative duties: within reason, and provided the employee is suitably qualified, the employer has a wide discretion to direct alternative duties (note remuneration obligations may apply where performing different work).
- Work at a different location: within reason, require employees to work at alternative locations.
- Work on different days / or at different times: an employee must consider and not unreasonably refuse a request to change working days or times.
Because the test of within reason is highly employer-specific, caution would need to be exercised before disciplining an employee in relation to failing to follow a direction and specific advice should be sought from NatRoad advisers.
Work place effects
Thirdly, is other workplace effects.
The legislation provides for a number of other matters:
- Base rate of pay: the employee must be paid for work performed at their usual base rate of pay. However, if the employee is working duties that would entitle them to a higher amount, the base rate must be at least that (e.g. higher duties, or work under a different award). Note the very strict higher duties terms of the Transport Awards – it is essential members get advice on this issue before re-allocating tasks.
- Minimum payment: the legislation confirms that if a JobKeeker amount is payable in respect of an employee, they must receive the greater of the JobKeeper amount ($750 per week) or the amount earned for work performed. Where work is performed, superannuation must be paid on ordinary time earnings.
- Leave and Redundancy: leave accruals, and in the event a redundancy occurs, during a period of a direction are based on their pre-direction terms and conditions.
- Workers compensation: the legislation expressly states that it does not impact on workers compensation legislation. Specific advice should be sought in relation to those cases.
Fourthly is annual leave.
The legislation switches the onus regarding annual leave. Whereas ordinarily the employee has the right to choose when to take leave and the employer must not unreasonably refuse, the employee must now consider and not unreasonably refuse any such request from the employer.
The legislation also permits annual leave to be taken at half pay. Subject to this or where otherwise authorised, leave taken during this period (whether subject to a request or not) is paid at the employee’s usual rate (i.e. prior to any direction being issued).
Training and other work
Fifthly is an obligation about training and other work.
The employer must consider and not unreasonably refuse a request from an employee subject to a Direction to engage in reasonable secondary employment, training or professional development.
- The employer must give at least three (3) clear days before issuing the direction and consult with the employee prior to issuing the Direction. Consultation may not be required if the issues have been properly canvassed in consultations regarding an earlier Direction. The employer must keep a written record of the consultation.
- Written Direction: the Direction must be in writing.
* The regulations will likely prescribe a form (or at least the substance required) for these purposes although that is not available at the time of writing.
- Service: the employee’s service (and service-based credits, such as annual leave) accrue throughout the period of the Direction, at their pre-Direction rate.
All of these technical requirements point to the fact that members should, where they are eligible for the Jobkeeper payment and wish to provide their employees with a direction about alternative working arrangements, seek NatRoad’s advice. It is emphasised that only Jobkeeper eligible members can take advantage of the relevant changes.
If members require further information please call our Member Services team on 1800 272 144.