Vincent Young has compiled a list of FAQs to help employers who qualify for the JobKeeper scheme.
NOTE: The ability to provide these directions and reach these agreements comes from the temporary changes to the Fair Work Act 2009 (Cth) and applies only where the employer qualifies for the JobKeeper Scheme and is entitled to one or more jobkeeper payments for the employee during the period in which the direction or agreement applies.
An employee has not accepted the jobkeeper nomination, can I reduce their hours or change their duties?
No. If you are not receiving the jobkeeper payment for them you cannot issue the jobkeeper enabling directions (or requests).
You can give a jobkeeper enabling direction to all employees that you receive the Jobkeeper payment for.
No. The employee’s rate of pay cannot be reduced, for the hours which they work.
Yes. You can give a “Jobkeeper enabling stand down direction” to:
- not work on a day or days on which the employee would usually work; or
- work for a lesser period than the period which the employee would ordinarily work on a particular day or days; or
- work a reduced number of hours compared with the employee’s ordinary hours of work (which can be zero),
when an employee cannot be usefully employed for their normal days or hours due to
changes to the business because of COVID-19 or government initiatives to slow the
transmission of COVID19.
The jobkeeper enabling stand down direction must be safe, having regard to (without
limitation) the nature and spread of COVID19.
Note: the employer must also qualify for the JobKeeper Scheme and must become entitled to one or more jobkeeper payments for the employee during a period “that consists of or includes” the stand down period, or for periods that “when considered together, consist of or include the jobkeeper enabling stand down period”.
Employees will not be entitled to be paid for the times where they are not working, subject to the rule that they must be paid at least $1,500 per fortnight before tax (i.e. the amount of the JobKeeper payment) or the amounts payable to the employee in relation to the performance of work during the fortnight (whichever is greater).
Yes. You can direct employees to undertake different duties, so long as:
- those duties are with the employee’s skills and capabilities;
- those duties are safe, having regard to (without limitation) the nature and spread of COVID19; and
- the employee has any necessary licence or qualification; and
- the duties are reasonably within the scope of the employer’s business operations.
If there are specific terms in a modern award or enterprise agreement in regard to exercising a stand down direction am I required to follow them?
No. If you are eligible to exercise a jobkeeper direction you will not need to follow specific terms in a modern award or enterprise agreement in relation to that process (including the recent changes to some awards).
Yes, provided it is reasonable.
If you have given a jobkeeper enabling stand down to an employee and the employee requests:
- to engage in reasonable secondary employment;
- training; or
- professional development,
you must consider the request and must not unreasonably refuse the request.
An employer can ask the employee to take annual leave and the employee must consider the request and cannot unreasonably refuse.
The employee must retain a leave balance of at least 2 weeks.
Employees and employers can come to an agreement about taking double the amount of annual leave, paid at half pay.
This is irrespective of any limitations in a designated employment provision (being for example, an award or enterprise agreement).
Yes. The employee accrues leave entitlements as if the direction had not been given.
Yes. If the employee is taking leave the jobkeeper payment can be used to satisfy the leave entitlement.
Yes. You can direct employees to work at a different location (including at home), so long as
- the place is suitable for the employee’s duties; and
- if the place is not the employee’s home—the place does not require the employee to travel a distance that is unreasonable in all the circumstances, including the circumstances surrounding the COVID‑19 pandemic; and
- the performance of the employee’s duties at the place is safe, having regard to (without limitation) the nature and spread of COVID‑19 and reasonably within the scope of the employer’s business operations.
Does an employee have to comply with a direction to stand down, perform different duties or change location?
Yes. If a jobkeeper enabling direction is given by an employer, the employee must comply with the direction.
If I make an employee’s position redundant or terminate their employment while stood down how do I calculate their entitlements?
Redundancy pay and payment in lieu of notice of termination should be calculated as if the direction had not been given.
- The direction has to be reasonable. For example, a direction may be unreasonable depending on the impact of the direction on any caring responsibilities the employee may have.
- Employees must be consulted with about any proposed changes at least 3 days’ before the direction is given.
- A direction must be in writing.
- You must keep written records of the consultation.
- To give a jobkeeper enabling direction about different duties or location of work you must reasonably believe that the direction is necessary to continue the employment of one or more employees.
Currently, a jobkeeper enabling direction to an eligible employee will cease on 28 September 2020.
How is an employee’s period of service calculated while subject to a jobkeeper enabling direction?
If an employee is subject to a jobkeeper enabling direction during a period, that period counts as service.
If you would like to discuss this further and the implications for your business please contact our Employment + Workplace Relations Partner, Erin Lynch.
Erin Lynch, Partner
M +61 477 330 202