The Federal Government has passed legislation that has allowed temporary flexibilities to enable the JobKeeper scheme to be adopted.
For businesses with JobKeeper-eligible staff, it means new flexibility around roles and hours during the COVID-19 downturn. The changes affect:
- stand downs;
- reductions in an employee's hours; and
- assigning staff work outside of their normal job scope (provided it is safe to do so).
You can only use a ‘JobKeeper-enabling direction’ if your business and employees qualify for the JobKeeper scheme or if your business is considered to be a Legacy Employer.
These changes were passed under the Coronavirus Economic Response Omnibus (Measures No. 2) Act 2020 (Coronavirus Act).
If your business wants to reduce an employee’s normal working hours under the JobKeeper provisions, you will need to utilise section 789GDC of the FW Act: ‘Jobkeeper-enabling stand down’ direction.
The employee must not be able to be employed in their regular capacity because of the pandemic – because of changes to the business or government restrictions.
The JobKeeper-enabling stand down provisions allow an employer (non-Legacy Employer*) to direct an employee to:
- not work on a day or days on which the employee would usually work; or
- work for a lesser period than the period which the employee would ordinarily work on a particular day or days;
- work a reduced number of hours (compared with the employee's ordinary hours);
- work at an alternative location.
* Legacy Employers are restricted in their ability to direct an employee under the Job-Keeper enabling stand down provision and employers should seek further advice before issuing a stand-down direction in these circumstances.
The JobKeeper-enabling stand down direction cannot be unreasonable, taking into account all of the circumstances, including any caring responsibilities and any unfair effect on some employees in the same category, when compared with other employees.
It will not apply to the employee during a period where the employee:
- is taking paid or unpaid leave that is authorised by the employer; or
- is otherwise permitted to be absent.
If you intend to implement a JobKeeper-enabling stand down, we recommend:
- you first make sure your business is eligible for the JobKeeper 2.0, and that your eligible employees can't usefully work their usual hours;
- you notify your employee of your intention and invite them to a consultation meeting at least three days before giving any direction; and
- you hold a consultation meeting with employees to discuss the proposed changes and any impacts or alternatives that they want to put forward. You must genuinely consider their responses and keep a written record of the consultation; and
- provide the direction in writing three days prior to the direction having effect.
We recommend that you seek assistance and advice from our Employee Relations Advice Centre on 9365 7660 if you are planning to use the new JobKeeper provisions. Failure to get these steps right could result in the direction having no effect, underpayment claims, breach of contract claims, and negative media attention.
Employees must be paid the minimum $1500 per fortnight ($1200 and $750 per fortnight from 28 September) if they are stood down, or for their actual hours worked (whichever is more). Any employee on a JobKeeper-enabling stand down can request to take on secondary employment, training, or professional development. You can't refuse such a request, if it's reasonable.
Where you are directing an employee to work alternate duties or at a different location, there may be additional health and safety requirements. You should undertake a risk assessment to identify any hazards and assess relevant controls for any new tasks that an employee wasn't previously employed to do. If you need assistance with this, please contact our OHS advice line 9365 7415 or email [email protected].
JobKeeper-enabling directions given by, or agreements made with, qualifying employers that are in place on 27 September 2020, will automatically carry over from 28 September 2020 if the employer remains eligible to give that direction or make that agreement. Employers should make sure they review the notice they provided to employees when they issued these directions to make sure it can automatically rollover.
If an employer is not eligible for JobKeeper 2.0, these directions will cease on the 27 September, unless they meet the definition of a Legacy Employer.
Editors note: this article was updated on 10 September 2020.
