On 8 April 2020 the Federal Government passed short-term amendments to the Fair Work Act 2009 (Cth) to give effect to the JobKeeper wage subsidy scheme announced on 30 March 2020 and provide employers who have qualified for this scheme with greater flexibility in dealing with issues arising in relation to the COVID-19 pandemic.
An employer who qualifies for the JobKeeper Scheme will be authorised to take the following actions in relation to eligible employees:
- give a reasonable direction to stand down (or work less days or hours) provided that the stand down is implemented in a safe manner and the eligible employee cannot be usefully employed because of changes to the employer’s business attributable to COVID-19 or Government initiatives to slow the transmission of COVID-19;
- give a reasonable direction to undertake alternative duties within the employee’s skill and competency where the employer has a reasonable belief that the direction is necessary to continue the employment of one or more employees. Such duties must be safe and reasonably within the scope of the employer’s business operations; and
- give a reasonable direction to work from an alternative location (ie from home) where the employer has a reasonable belief that the direction is necessary to continue the employment of one or more employees. The new location must be safe, suitable and reasonably within the scope of the employer’s business operations. If the new location is not the employee’s home, it must also be within a reasonable distance of the employee’s normal place of work.
There are procedural requirements, including the provision of at least three days’ notice and consultation obligations, that must be satisfied prior to such a direction being given. Eligible employers will also be able to:
- request that an eligible employee agree to work on different days or at different times (but not reduce their hours of work), provided those arrangements are safe and reasonably within the scope of the employer’s business operations. An employee cannot unreasonably refuse such a request;
- request that an eligible employee take annual leave provided that the employee will not have less than two weeks accrued annual leave remaining as a result of taking such leave. An employee cannot unreasonably refuse such a request; and
- agree with employees to take annual leave in half days (ie receive twice the amount of annual leave for half the rate of pay).
As already announced, eligible employers must also ensure that eligible employees receive a minimum payment of AUD1,500 per fortnight (before tax) in accordance with the JobKeeper scheme. An employer is not authorised to vary an employee’s base rate of pay for hours worked under these amendments.
While the exact details relating to eligibility criteria are yet to be confirmed, guidance issued to date indicates that an employer will be eligible where it has experienced (or will experience) a decrease in turnover of 30% for businesses with an annual turnover of less than AUD1 billion, or 50% for businesses with an annual turnover of more than AUD1 billion.
These amendments (and the arrangements made in accordance with these amendments) will remain in force until 28 September 2020.
Please let us know if you have any questions regarding these changes or any other issues arising in relation to COVID-19.