JobKeeper Fair Work Act changes have arrived again, and businesses accessing the subsidy must stay informed. These legislative updates only affect employers and employees directly claiming the payment. Even if your entire business accesses the subsidy, these specific laws only apply to direct recipients.
Crucially, these JobKeeper Fair Work Act changes override any existing modern awards, enterprise agreements, or employment contracts. Under these new rules, an employer can partially or completely stand down an employee without pay if the business cannot usefully employ them. You may also change an employee’s duties, work location, or work schedule.
Understanding New Stand-Down Provisions
The JobKeeper Fair Work Act changes allow employers receiving the allowance to give specific directions to staff. You may direct an employee to stay home on a usual work day or work for a shorter period than ordinary. Employers can also reduce an employee’s hours and withhold pay for the period they do not perform work.
You may issue these directions if your business qualified for the JobKeeper scheme at the time of the direction. Furthermore, you must prove the employee cannot be usefully employed due to COVID-19 or government health initiatives. Any implementation must prioritize safety regarding the spread of the virus.
Wage Conditions and Payment Guarantees
Under the latest JobKeeper Fair Work Act changes, you must meet the “wage condition” to remain eligible. This means ensuring the total amount you pay an employee per fortnight is not less than the JobKeeper payment itself. This total includes incentive-based payments, bonuses, loadings, overtime, and leave payments.
Additionally, you must satisfy the hourly rate of pay guarantee. Ensure the employee’s hourly base rate is not less than their usual rate. If you direct a staff member to perform different duties, you must pay them the higher of their original rate or the rate applicable to the new duties.
Defining “Useful Employment”
An employee lacks “useful work” when pandemic restrictions or public health orders reduce available tasks. This work must be genuine, productive, and provide a “net benefit” to the employer. You should be able to demonstrate that government measures or the virus itself directly caused this lack of work.
Please note that stand-down directions do not apply when an employee is taking authorized paid or unpaid leave. They also do not apply if the employee has other authorized absences from their employment.
Increasing Workforce Flexibility by Direction
The JobKeeper Fair Work Act changes offer two main ways to redirect your workforce. First, you can direct an employee to perform different duties that fall within their skills and competence. These duties must be safe and reasonably within the scope of your business operations.
Second, you can direct an employee to work at a different location, including their home. This location must be suitable for their duties and safe for the employee. In both scenarios, you must reasonably believe these directions are necessary to maintain the person’s employment.
The “Necessary” Test for Employers
To meet the legal threshold for these JobKeeper Fair Work Act changes, apply the “but for” test. This means that “but for” this direction, you would have to make the employee redundant. This is a high test that requires factual information rather than a personal preference.
Furthermore, every direction must be reasonable. A Court or Tribunal will consider the employee’s personal circumstances to ensure the direction is not “unreasonable in all of the circumstances”. While you don’t have to choose the most reasonable option, the path you take must be defensible.
Requesting Changes to Hours and Leave
Beyond direct orders, the JobKeeper Fair Work Act changes allow for flexibility through mutual agreement. You can request that an employee work on different days or at different times compared to their ordinary hours. The employee must consider this request and cannot refuse it unreasonably.
Similarly, you can request that an employee take paid annual leave, provided they maintain a balance of at least two weeks. You can also agree to take double the annual leave at half pay. In these cases, the law calculates leave payments based on the rate that applied before these rules took effect.
Employer Obligations and Consultation
Before you issue a direction under the JobKeeper Fair Work Act changes, you must provide written notice. Give this notice at least three days before the direction begins, unless the employee agrees to a shorter period. You must also consult with the employee or their representative regarding the change.
If a dispute arises, the Fair Work Commission can intervene. They have the power to make orders that enforce, set aside, or substitute a direction. The Commission will always take into account fairness between the parties involved.
Final Details on Compliance
All directions related to the JobKeeper Fair Work Act changes must be in writing. These directions remain in effect until you revoke them, replace them, or the Fair Work Commission issues a new order. Remember that periods spent under these directions still count as service for accrual purposes.
If an employee is stood down, they may request permission to take a second job or undergo professional training. As an employer, you must consider these requests and only refuse them for reasonable grounds, such as a conflict of interest or safety risks.
