New flexibilities announced linked to JobKeeper scheme – a guide for employers

1. The JobKeeper scheme and consequential changes to the Fair Work Act 2009 (Cth) have come into effect. The changes made to the Act gives employers and their employees more flexibility during the COVID-19 pandemic.
2. Importantly, the changes in the Act only apply to those employers who qualify and remain qualified for the JobKeeper scheme and those employees who are receiving the JobKeeper payment. We summarise the changes below.
   

   JobKeeper enabling directions

3. Eligible employers may give eligible employees a number of directions called JobKeeper enabling directions.
4. Before giving a JobKeeper enabling direction, an employer is required to consult with their employee (or their representative) and must give the employee at least three days’ written notice of their intention to give the direction, unless a lesser notice period is genuinely agreed to. The employer must keep a record of the consultation.
5. In addition to the individual requirements of each provision, which we have outlined below, a JobKeeper enabling direction will not apply to an employee if the direction is unreasonable in all of the circumstances. For example a direction:
   (a) to work different days or hours of work may be unreasonable if the impact of the direction would not allow the employee to undertake their caring responsibilities
   (b) to change the location of work may be unreasonable if the distance the employee must travel to the new location is too far away.
6. A JobKeeper enabling direction must be in writing and continues in effect until it is either withdrawn, revoked by the employer, replaced by a new JobKeeper enabling direction or until the amendments to the Act cease on 28 September 2020.
7. An employee who is subject to a JobKeeper enabling direction will have that period counted as service and will continue to accrue leave entitlements as if the direction had not been given.
   

   JobKeeper enabling stand down direction

8. An employer can give an employee a stand down direction, directing them to:
   (a) not work on a day or days they would usually work
   (b) work for a lesser period than they would ordinarily work on a particular day
   (c) work a reduced number of hours (including reduced to nil).
9. For a JobKeeper enabling direction to be given, the employer must not only show that the direction is safe having regard to the nature and spread of COVID-19, but also ensure that the employee could not be usefully employed for their usual days or hours because of changes to business due to the COVID-19 pandemic or the surrounding government initiatives to slow its transmission.
10. Employees who have their hours reduced as a result of a JobKeeper stand down direction must not have their base rate of pay reduced below that which would have been applicable if the JobKeeper enabling direction had not been given. Employees subject to a JobKeeper stand down direction are able to request permission from the employer, which must be considered and not unreasonably refused, to seek secondary employment, training or professional development. This would mean an employee could receive the $1,500 JobKeeper payment from one employer and use the rest of their available time to engage in other paid work, training or professional development.
11. An employee may take authorised paid or unpaid leave (for example, annual leave) during all or part of a period that the stand down period would otherwise apply.
    

    Employee duties and location of work direction

12. An employer may give an employee directions about their duties and location of work. An employer may direct an employee to do any duties if it is within the employee’s skill and competency, safe and reasonably within the scope of the employer’s business operations.
13. Further, the provisions authorise an employer to direct an employee to perform duties at a place that is different from the employee’s normal place of work, including the employee’s home, if the place is suitable for the employee’s duties and the duties to be performed at the place are both safe and reasonably within the scope of the employer’s business operations.
14. It is important to note that a JobKeeper enabling direction relating to an employee’s duties or location of work will have no effect unless an employer has information that leads them to reasonably believe the direction is necessary to continue the employment of the employee.
    

    Changes to days of work by agreement

15. An employer may request that an employee change their working days or usual times of work (as distinct from reducing the number of hours of work) if it is safe and reasonably within the scope of the employer’s business operations. Once requested, the employee must consider the request and not unreasonably refuse the request.
    

    Taking paid annual leave by agreement

16. An employer may request an employee to take annual leave if complying with the request will not result in the employee having a balance of paid annual leave of fewer than two weeks. Once requested, the employee must consider the request and not unreasonably refuse the request.
17. An employer and employee may also agree for the employee to take twice as much paid annual leave, at half the employee’s rate of pay.
    

    Disputes

18. Under the amendments, the Fair Work Commission may deal with disputes about JobKeeper enabling directions, including by arbitration. The Commission has the power to make orders giving effect to, setting aside or substituting JobKeeper enabling directions made by an employer or any other order the Commission considers appropriate.
19. While employers can make an application to the Commission to deal with a dispute under these provisions, it is unclear the extent to which the Commission would intervene in circumstances where the employee refused to take leave or change their days and time of work.
    

    Protection of workplace rights

20. The amendments to the Act added to the existing protections of workplace rights such that an employer cannot take adverse action against an employee because they:
    (a) agreed or not agreed to perform work on different days or at different times
    (b) agreed or not agreed to take annual leave
    (c) made a request to undertake secondary employment, training or professional development.
21. As with all general protection provisions in protecting workplace rights, it is the employer who must prove that any decision relating to an employee’s employment is not because they exercised or did not exercise a workplace right. A breach of these provisions can give rise to a civil penalty against the employer and individuals who were involved in the contravention, so extreme caution must be taken.
    

    Misuse of JobKeeper enabling directions

22. Employers can face civil penalties of up to $126,000 if they knowingly give a direction to employees that is not authorised by these new provisions.
    

    Next steps for employers

23. Employers will first need to determine whether they qualify for the JobKeeper scheme. If you require advice about your eligibility please contact partner Fletch Heinemann.
24. If they do, it will be important to properly plan any JobKeeper enabling directions or requests, to ensure compliance with the technical requirements of the Act.
    

If you require assistance with this process, or need legal advice about your particular circumstances, please contact the workplace relations and safety team at Cooper Grace Ward.