COVID-19 update – JobKeeper scheme, redundancy, varying enterprise agreements, recent cases and changes to Fair Work Commission processes

Throughout the COVID-19 crisis, a large volume of changes and decisions have been made to support both employers and employees including the introduction of the JobKeeper legislation flexibilities and changes to various modern awards.

In order to facilitate these changes and further assist parties, new resources are available and consequential amendments made to relevant legislation and rules. Further, the Fair Work Commission has dealt with and received a number of COVID-19 related applications and acted of its own accord to introduce special measures in response to COVID-19. Below is a summary of the most recent information.

JobKeeper disputes – Form 13A

The Fair Work Commission has introduced a new Form 13A that is used solely for dealing with JobKeeper disputes. By Using the new Form 13A, employees, employers, and employee or employer organisations may apply to the Commission to deal with a JobKeeper dispute under the new provisions relating to COVID-19 under Part 6-4C of the Fair Work Act 2009 (Cth).

Part 6-4C of the Fair Work Act allows an employer who qualifies for the JobKeeper scheme to give an employee a ‘JobKeeper enabling direction’. An employer may ask an employee to agree to change the days and times when the employee is to perform work or to agree to take annual leave, including at half pay. For more information on the new provisions, you can read our article here.

The Commission can deal with a lodged dispute regarding these new provisions through various means including mediation, conciliation and arbitration, with the power to give effect to, set aside and replace directions given under the new provisions. Those wishing to make an application need to, along with Form 13A, provide a copy of the JobKeeper Employee Nomination Notice and the written direction or agreement to which the dispute relates.

Enterprise bargaining – shortened access periods

On 17 April 2020, the Fair Work Regulations 2009 (Cth) were amended to insert new regulation 2.09B, which alters the access period for varying an enterprise agreement. Before a variation to an enterprise agreement can be approved, section 180 of the Fair Work Act provides that employers must take all reasonable steps to ensure employees who are to be covered by the agreement have copies of and access to relevant information, including a copy of the proposed agreement during the access period.

The new regulation 2.09B reduces the original access period under section 180(4) of the Fair Work Act, being the seven-day period ending immediately before the start of the voting process, and modifies it to provide for a one day period.

Changes to the Fair Work Commission Rules

The Commission has proposed changes to its Rules addressing concerns or difficulties when complying with the social distancing measures related to COVID-19 during the statutory declaration process. The Fair Work Commission Amendment (Miscellaneous Measures) Rules 2020 proposes to replace the need for a physical signature in the presence of an authorised witness by allowing the lodgement of a signed declaration, instead of a statutory declaration. This change will also further facilitate the use of ‘SmartForms’, allowing parties to lodge forms with the Commission electronically.

Redundancy pay decision

In recent case law news, legal transcript services company, Auscript, has been ordered to refrain from implementing compulsory redundancies due to COVID-19 until satisfying the consultation requirements, after it was found that it had failed to do so initially. In a decision handed down on 7 April 2020, the Commission held that, despite meeting with the Australian Municipal, Administrative, Clerical and Services Union, Auscript had not given genuine consideration to options other than redundancy. This is an important reminder to employers that the consultation process is more than a ‘tick and flick’ exercise.

Current urgent applications

The Commission has noted it is currently dealing with a number of urgent applications, including the following:

• There have been applications to alter Schedule X in health sector awards. Schedule X was inserted into 99 modern awards on 8 April 2020, providing for two weeks’ unpaid pandemic leave and the ability to take leave at half pay (more information can be found in our article here). Several parties have made submissions regarding the particular circumstances of health care workers. The Commission is currently dealing with urgent applications to provide for paid pandemic leave and an additional special leave provision, which would apply where an employee contracts COVID-19.
• Thirteen law firms have made a joint application to vary the Legal Services Award. The application would insert a new Schedule I, mirroring the variation made to the Clerks Private Sector Award, providing for flexibility with regard to:
  • employees’ range of duties
  • minimum engagement for part-time and casual employees working from home
  • the spread of ordinary hours of work for workers working from home
  • temporary reductions in hours
  • taking annual leave
  • the notice period for a close-down.
• The Real Estate Employers Federation has applied to vary the Real Estate Award. The variation would insert a new Schedule I, relating to commission-only arrangements.