The Treasurer, the Hon Josh Frydenberg, has indicated that it is likely that JobKeeper payments (and by inference flexibilities) will cease as planned on 28 March 2021. Many employers continue to rely on JobKeeper payments and flexibilities to keep their business going and to keep employees employed.
Employers who have enjoyed the benefits of JobKeeper-enabled directions under the legislation, both those receiving JobKeeper payments and those who are not, are questioning whether they can require employees to continue working reduced hours and what options are available if their business is still not back to pre-COVID capacity.
In the absence of JobKeeper payments, and the associated temporary flexibilities in the Fair Work Act 2009 (FWA) that permit the employer to give JobKeeper-enabled stand down and other directions, employers must abide by the usual requirements under the legislation and case law.
Options for employers include:
- Stand Down under s.524 FWA:
- an employee can only be stood down without pay if they cannot be usefully employed because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible
- E.g, as result of government direction or mandate
- Cannot be activated due to business slow-down- must be a “stoppage” of work
- Consider negotiating other options directly with employees e.g. reduced hours, paid or unpaid leave. Any changes to the employment terms and conditions must be mutually agreed and should be recorded in writing, ideally with a specified timeframe.
- Redundancy: if the business cannot sustain the existing workforce and there are no other alternatives (such as a negotiated variation of employment conditions), consideration should be given to what roles are necessary and whether there are roles that are no longer required resulting in redundancy. Of course, if the decision is made to undergo a restructure that results in one or more roles being made redundant, employers should ensure they follow the usual redundancy notification and consultation procedure as required by the award or other applicable industrial instrument.