Temporary amendments have been made to the Fair Work Act to provide employers who are eligible for the JobKeeper payment with flexibility to deal with specified working arrangements for eligible employees. The objective of the JobKeeper scheme is to assist employers to “keep Australians employed” by providing employers with a JobKeeper payment of $1,500 per fortnight per eligible employee.
Who is eligible?
In general terms, employers will be eligible for the JobKeeper Payment if turnover has fallen or is likely to fall by more than 30% (or 50% if turnover is $1 billion or more). Eligibility criteria for employees include that the employee is currently employed by an eligible employer (including if stood down or re-hired) and that the employee is full-time, part-time, or a long-term casual (a casual employed on a regular basis for longer than 12 months as at 1 March 2020). Employers must pay eligible employees a minimum of $1,500 per fortnight (before tax) in order to receive the JobKeeper payment.
What options are available?
The JobKeeper amendments to the Act temporarily alter the legal framework under which employers can, without employee agreement:
- stand down employees
- reduce employees’ working hours
- change employees’ work duties, and
- alter the location of work.
The provisions also authorise an eligible employer to make agreements with employees in relation to the days or times of work, and taking paid annual leave, including at half pay.
Note that the summary of set out below only applies to eligible employers in relation to their eligible employees under the JobKeeper scheme.
DIRECTION: Standing down employees (including reducing hours)
An employer can give employees a “JobKeeper enabling stand down direction” requiring an employee not to work on particular days, or to work for a lesser period or for fewer hours than the employee would ordinarily work (including nil hours).
The direction may be given if:
• the employee cannot be usefully employed for their normal days or hours during the JobKeeper enabling stand down period because of changes to business attributable to the Coronavirus pandemic or government initiatives to slow Coronavirus transmission, and
• it can be implemented safely, having regard (without limitation) to the nature and spread of Coronavirus.
Changes to business could include, for example, less patronage and the closing of stores.
DIRECTION: Changing work duties
An employer can direct an employee during a period to perform any duties within their skill and competency provided that:
- the duties are safe (having regard, without limitation, to the nature and spread of Coronavirus);
- the employee is licensed and qualified to perform the duties (if a licence or qualification is necessary); and
- the duties are reasonably within scope of the employer’s business operations.
DIRECTION: Change of Location
An employee can be directed to perform duties at a place (including the employee’s home) that is different from the employee’s normal workplace.
The direction may be given if:
- the place is suitable for the employee’s duties;
- if the place is not the employee’s home – it does not require the employee to travel a distance that is unreasonable in all the circumstances (including those surrounding the Coronavirus pandemic); and
- performance of the employee’s duties at the place is safe, having regard (without limitation) to the nature and spread of Coronavirus, and is reasonably within scope of the employer’s business operations.
REQUEST: Work at different times/different days
An employer can request an employee to work at different times and on different days to their usual days and times (and an employee cannot unreasonably refuse an employer’s request).
REQUEST: Annual Leave
An employer can request that an employee take annual leave (at full or half pay), provided that the leave arrangement would not result in reducing the employee’s leave balance to fewer than two weeks (again, an employee cannot unreasonably refuse an employer’s request).
There are certain requirements that must be met regarding notice and consultation with employees as well as safeguards that must be considered when implementing directions or requests to employees.
 Coronavirus Economic Response Package Omnibus (Measures No. 2) Bill
Explanatory memorandum page 17