Can staff on JobKeeper refuse to work?

By CCIWA Editor

Media reports suggest some staff on JobKeeper payments are refusing to work. But what can you do to manage a reluctant worker while they’re receiving the subsidy?

Extra hours are out (probably)

Temporary provisions in the Fair Work Act allow businesses to decrease, but not increase, an employee's hours.

Employers must still pass on the full JobKeeper payment to eligible workers, even if it is more than their usual wages.

Furthermore, the new provisions do not specify how an employer may deal with any refusal by an employee to work their usual hours of work. This means that the usual requirements of the FW Act, relevant industrial instrument and employee’s contract of employment will apply.

Generally, an employer can request that an employee work reasonable additional hours, which the employee may refuse if the request is unreasonable.

If the only reason for asking an employee to work additional hours is to make up the difference between their usual wages and the JobKeeper payment, then your request may not be reasonable.

Review your requests on a case-by-case basis. Consider factors like the employee’s individual circumstances such as caring responsibilities, the business’s operational requirements, the reason for the request, health and safety requirements, and how much notice was given for the request to work additional hours (or the refusal to work the extra hours). Careful attention should also be paid to any overtime that may be payable for the additional hours.

When an employee refuses to work

If a part-time or full-time employee refuses to work their usual contracted hours, then this may be treated as a potential disciplinary issue.

The employer must continue to make the JobKeeper payments to the employee as a minimum. However, you may be able to:

provide the employee with a lawful and reasonable direction to attend to their usual hours of work, following the terms and conditions that applied before JobKeeper;

treat any unauthorised absence from work, without reasonable cause, as a disciplinary matter; and

elect not to pay the part-time or full-time employee for any hours that they are on an unauthorised absence (without reasonable cause), provided that the employee is paid at least the JobKeeper amount, plus any additional hours worked.

It is important not to make assumptions about why the employee is refusing to work. You should consult with your employee before taking any of the above actions.

Can casuals say no to working altogether?

If a casual employee refuses to accept any shifts, the situation is more complicated.

Casual employees usually have the right to accept or not accept shifts, or to make themselves unavailable for work at certain times.

As there are no specific measures to deal with this issue in the temporary amendments to the FW Act, the employee’s usual terms and conditions will apply.

Be careful when you consider whether the business can require the casual employee to work on particular days, or at specific times—the casual employee may later claim that they were instead a part-time or full-time employee, entitled to paid leave and other entitlements.

Care should be taken to ensure that the employer does not take adverse action against the casual employee because of their workplace rights, or their right to receive the JobKeeper payments where eligible.

Where a casual employee does not give the required notice for absences or unavailability to work, then it may be possible to consider disciplinary action.

However, in all circumstances, the employer must continue to pay the casual employee JobKeeper payments as a minimum (unless the employment comes to an end).

The appropriate response may differ depending on your circumstances. We recommend you seek advice from CCIWA’s Employee Relations Advice Centre on 08 9365 7660 before taking any action against a casual employee who is refusing to accept shifts or failing to make themselves available.

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