Coronavirus Support: Changes to the Fair Work Act to accommodate JobKeeper Scheme

In conjunction with the introduction of the JobKeeper scheme, there have been changes made to the Fair Work Act to allow employers to give directions called ‘JobKeeper enabling directions’. This means that employers can temporarily stand down an employee (including reducing hours or days of work) as well as unilaterally change an employee’s usual duties (within the employees’ skill and competency and reasonably within scope of business) and location of work.

Employers can also agree with an eligible employee to change their workdays or take annual leave. It is important that the employer is certain they qualify for the payment scheme before issuing a direction or making an agreement under the new provisions of the Fair Work Act.

Who Can Use the Fair Work Act JobKeeper Provisions?

The JobKeeper enabling direction or agreement pursuant to the new Fair Work Act provisions are available if the employer is a national system employer, qualifies and is registered for the JobKeper scheme, and is entitled to receive JobKeeper payments from the Australian Taxation Office (ATO) for the employee to whom the direction or agreement applies.

JobKeeper Enabling Stand Down Directions

The new provisions allow a qualifying or eligible employer to direct the relevant employee to work fewer hours or days (including no hours) in certain circumstances. These standing down directions can only be given to an employee if the employee cannot be usefully employed for their normal days or hours because of changes to business attributable to the COVID-19 pandemic or because of government initiatives to slow the transmission of COVID-19.

Direction to Change Usual Duties or Location of Work

A qualifying employer can also unilaterally direct the employee to perform any duties that are within their skill set and competency as long as the duties are safe, the employee has any required qualifications or licences needed to perform the duties and the duties are reasonably within the scope of the employer’s business. It is important that these directions are not unreasonable having regard to the circumstances and be reasonable to continue the employment of the employee.

How Do You Make a Direction?

If an employer makes a direction in relation to the JobKeeper scheme it must be in writing. The employer must notify and consult with the employee (or their representative) at least three days before the issuing of the direction (unless the employee agrees to a shorter timeframe) and a written record must be kept of the consultation.

Disputes and Enforcement

The Fair Work Commission has the power to hear disputes and make orders about the new JobKeeper provisions under the Fair Work Act. Enforcement is conducted by the Fair Work Ombudsman who can enforce a number of provisions relating the JobKeeper scheme that relate to ensuring minimum wages and conditions are complied with and the JobKeeper enabling directions by employers are not be misused.

These new provisions will only have effect until 28 September 2020, after which time the pre-existing employment conditions will be brought back into effect.

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