The JobKeeper Scheme is now in place for eligible employers to access a wage subsidy from the government to continue paying their employees. In order to implement this, the Fair Work Act has been temporarily amended to provide some flexibility to employers impacted by the COVID-19 pandemic.
The new provisions allow employers who qualify for the JobKeeper Scheme, and who are entitled to JobKeeper payments for their employees, to give certain directions or make certain requests to their employees. If an employee is subject to such a direction or request, the employee’s terms and conditions of employment continue to apply.
However, if there is an inconsistency between the direction or request and the employee’s terms and conditions of employment (whether that be a term under their employment contract, modern award, enterprise agreement or the Fair Work Act), the direction or request will take precedence. Please be aware that any employer direction or agreement made under the new legislation can’t reduce minimum pay rates and other monetary entitlements under the Fair Work Act.
The directions and requests are subject to certain conditions and/or agreement with the relevant employee. Therefore, we recommend that you contact WAS for specific advice tailored for your individual circumstances, as this fact sheet is intended for general information only. If you work in a collective workplace and you are covered by an enterprise agreement, you can also contact your local delegate, organiser or industrial officer for assistance.
JobKeeper Eligibility and Payment
Employers must opt in to the JobKeeper Scheme to receive the JobKeeper payments ($1500 per fortnight) to pass on to their eligible employees. The Federal Government has created fact sheets with detailed information about which employers and employees qualify for the payment.
Click here to access these.
Changes to the Fair Work Act
Here is a summary of the directions or requests that can be made under the new legislation.
These will only apply to employers who:
- Are national system employers
- Have applied and qualify for the JobKeeper Scheme
- Are entitled to JobKeeper payments for the relevant employee
An employer must ensure that:
- The jobkeeper enabling direction is in writing.
- It complies with its consultation obligations in regard to a jobkeeper enabling direction and keep a written record of this. This includes giving the employee at least three days’ written notice of their intention to do so (unless otherwise agreed).
- If it wants to give a jobkeeper enabling direction, it must be necessary to continue the employment of one or more of its employees.
- The job keeper enabling direction is not unreasonable in all of the circumstances.
As stated above, these measures are temporary and will end on 28 September 2020. Any directions and agreements made under the new legislation will end on this date.You should also be aware that a jobkeeper enabling direction can end before this date if it is withdrawn, revoked, or replaced by another jobkeeper enabling direction by the employer. It may also be subject to an order by the Fair Work Commission.
If you believe that a direction or request by your employer is unfair or unreasonable in the circumstances, please contact Professionals Australia for further assistance.The Fair Work Commission has been given power to deal with disputes under the new legislation by mediation, conciliation or arbitration. A number of the new provisions are also civil remedy provisions, meaning that penalties can be sought in the relevant state or federal court against an employer who breaches whose provisions.
I am a full time employee and I usually work Monday-Friday. My employer has made a request for me to work part time and to work these hours on the weekend.
Can they do this?
Under the new changes, an employer can request that you perform your ordinary hours on different days (subject to some conditions). However, this cannot have the effect of reducing your usual ordinary hours of work unless this is made under a jobkeeper enabling stand down direction.
Do I still accrue annual leave during a jobkeeper enabling stand down?
Yes, you accrue all leave entitlements as if the direction had not been given. If I have been stood down on a jobkeeper enabling direction, can I request a redundancy?
In order for your position to be made redundant, it will be subject to the usual criteria under the Fair Work Act.
Depending on factors such as the length of a jobkeeper enabling stand down, it may be possible to challenge the employer’s direction.
If you have concerns about being stood down or that your job may no longer be required to be performed by anyone as a result of the coronavirus pandemic, we recommend that you contact us for tailored advice specific to your circumstances.
My employer has told me that if I don’t agree to take annual leave under the JobKeeper legislation, that I will be dismissed.
Can they do this?
The new legislation states that agreeing or not agreeing to take paid annual is a protected workplace right.
Therefore, if your employer takes adverse action against you because you exercised your workplace right, you may be eligible to make a General Protections claim.
As stated above, if you believe you have been treated unfairly or unreasonably, please contact Professionals Australia first for specific advice.
Can my employer ask me to take long service leave?
The new legislation is silent on the taking of long service leave. If your employer has made this request to you, please contact Professionals Australia.
We can let you know whether the request complies with the relevant state or federal long service leave legislation which applies to you.