On 9 April 2020, the Fair Work Act was amended to support the implementation and operation of the JobKeeper wage subsidy scheme (JobKeeper scheme) in Australian workplaces.

The new provisions apply to employers who have qualified for the JobKeeper scheme and their eligible employees. Once an employer has qualified for the JobKeeper scheme, the new provisions enable:

  • employers to make temporary and partial stand downs in certain circumstances
  • employers to temporarily alter employees’ usual duties and locations of work in certain circumstances
  • employers and employees to agree on altering an employee’s days and times of work and use of annual leave in certain circumstances.

Direction to reduce hours or days

The new provisions enable a qualifying employer to direct an employee to work fewer hours or days (including no hours).   These directions are called ‘JobKeeper enabling stand downs directions’. Employers can only give employees JobKeeper enabling stand down directions if the employee can’t be usefully employed for their normal days or hours because of changes to business attributable to the the coronavirus pandemic, or government initiatives to slow its transmission (for example, because of an enforceable government direction).

The direction must also be implemented safely, having regard to the nature and spread of coronavirus.
A JobKeeper enabling stand down direction must be in writing. Employers also need to:

  • make sure the direction is reasonable in the circumstances, including (but not limited to) considering the employee’s caring responsibilities
  • notify their employees and consult their employees (or their representatives) at least 3 days before issuing the direction (unless the employee agrees to a shorter timeframe)
  • keep a written record of the consultation.

If an employee is taking paid or unpaid leave (such as annual leave) or is otherwise entitled to be absent from work (such as on a public holiday), the direction doesn’t apply. However, if the employee normally receives a leave payment that would be less than the JobKeeper payment for a fortnight the employee is still entitled to an amount that is equal to the JobKeeper payment for the fortnight.

Request to change usual duties or work location

The new provisions enable a qualifying employer to direct an employee to change their duties and work location. This includes working from home or from a different location. These directions are also referred to as ‘JobKeeper enabling directions’.  Employers need to make sure:

  • the direction is reasonable, including considering the employee’s caring responsibilities
  • the modified duties are within the employee’s skill and competency, and the employee has the required licences or qualifications
  • the duties are safe considering the nature and spread of coronavirus
  • the duties are reasonably within scope of the business’s operations
  • any new location is within a reasonable travelling distance.

The direction must be in writing. Employers must notify their employees and consult with them (or their representatives) at least 3 days before issuing the direction (unless the employee agrees to a shorter timeframe). They also need to keep a written record of the consultation.  An employee’s hourly base pay rate cannot be reduced as a result of a JobKeeper enabling direction.

For full details of the changes to the Fair Work Act please refer to the Fair Work Ombudsman website.

Source:  Fair Work Ombudsman