JobKeeper Payment Update and Changes to the Fair Work Act (2009)

Posted 9 Apr '20

JobKeeper Payment Update and Changes to the Fair Work Act (2009)

By Matthew Moloney

The JobKeeper Payment legislation and changes to the Fair Work Act passed both houses of parliament last night. 

JobKeeper Update

The framework to establish the JobKeeper Payment (JKP) passed both houses of Parliament last night.  Unfortunately, the finer points of the JKP have not yet been made available by Treasury and the ATO.  The most up to date information is as of 5 April 2020, being the Treasury Fact Sheet and Frequently asked questions.  Click on this link for further details https://treasury.gov.au/coronavirus/jobkeeper

We will keep you updated as further details become available.

Coronavirus - Changes to the Fair Work Act (2009)

We note this is a summary for information purposes only.  Readers should not view this as advice or a recommendation to take a certain course of action.  We recommend that you consult with your human resources or industrial relations specialist before taking any action.

Who does it impact?

• Only employers eligible for the jobkeeper payment. All references below are to employers who are eligible.  All references to “direction” are to “Jobkeeper enabling directions”.
• Employees of eligible employers
• Employers who are not eligible for the jobkeeper payment are still bound by the existing industrial relations rules and regulations

What can employers do?

Where the employee cannot be usefully employed (work that provides a net benefit for the employer) for the normal days or hours during the relevant period as a result of Covid-19 or government initiatives to slow the spread of the virus, the employer can provide directions to an employee to:

• not work on a day or days on which an employee would normally work
• work for a lesser period on a particular day or days
• work a reduced number of hours (including a reduction to nil)
• not pay an employee for the reduced days or hours where work is not performed
• change the duties to be performed by the employee
• change the location of an employee’s work
• change the days or time when an employee is to perform work
• take annual leave (including at half pay)

What are the employer payment obligations?

• Ensure that the payment to the employee is not less than the jobkeeper payment
• Where the employee earns more during a fortnight than the jobkeeper payment, that higher amount (which includes the following payments if they become payable in respect of the work done for the fortnight: incentives; bonuses; loadings; allowances; overtime and; leave payments)
• An employee’s hourly base rate of pay cannot be reduced
• An employee’s hourly base rate of pay will be higher if the employee is undertaking higher duties
• Where an employee is paid otherwise than an hourly basis or by reference to an hourly rate of pay, the base rate of pay will be as per the relevant workplace instrument

Taking paid Annual Leave

Where the employer makes a request to an employee to take paid annual leave and complying with the request will not result in the employee having less than two weeks annual leave, the employee must consider the request and must not unreasonably refuse the request.

The employer and employee can agree in writing to the employee taking twice as much paid leave annual leave at half the employee’s rate of pay.

A direction does not apply to an employee during a period where the employee is taking paid or unpaid leave authorised by the employer

Changing Duties of Work

The duties can be higher or lower duties.  The duties must be safe, within the employee’s skill and competency (including licences and qualifications where required) and within the scope of the employer’s business operations.

Changing Location of Work

Employers may direct employees to work at a different location (including the employee’s home).  The location must be suitable for the work to be performed, safe, not require unreasonable travel distances and the work must be within the scope of the employer’s business operations.

Changing Days of Work

Employers may direct employees to change their normal work days or normal work times.  This applies to workers either changing days (e.g. from weekend to weekdays) or time of work (e.g. from night shift to day shift).  This direction does not have the effect of reducing an employee’s normal number of hours.

Compliance and Consultation

• An employee does not have to comply with a direction if it unreasonable in all of the circumstances
• Where a direction is given to an employee, it is immaterial that a similar direction could have been given to another employee
• A direction does not apply unless the employer gives written notice to the employee of the intention to give a direction at least 3 days before the direction is given (unless the employee consents to a lesser period) and before giving the direction, the employer consulted the employee about the direction
• If an employee raises issue in relation to the direction during consultation, the employer must consider those views in deciding to issue a direction and the employer must keep a written record of the consultation
• The direction must be in writing (electronic communication will suffice)
• The direction remains in effect until it is withdrawn or revoked by the employer, replaced by a new direction given by the employer or expires on 28 September 2020
• An employer must not purport to give a direction if the direction is not authorised by the legislation and the employer knows that the direction is not authorised
• If the requirements above are not followed, then the direction has no effect and the normal industrial relations provisions apply

Service Periods and Leave Accruals

Where an employee is subject to a direction, the employee continues to accrue annual and other leave entitlements at the rate that would apply if the direction was not given.  Similarly, there is no change in the redundancy or termination payments as a result of the direction.

The giving of a direction does not amount to a redundancy, even where the hours are reduced to nil.

Employee Requests for Secondary Employment and Training

If an employee, who is subject to a direction, requests to engage in reasonable secondary employment, training or professional development the employer must consider the request and must not unreasonably refuse the request.

Disputes

Where this is a dispute in relation to a direction, the employee, employer, employee organisation or employer organisation can apply to the Fair Work Commission to settle the dispute.