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JobKeeper Disputes and the Fair Work Commission

On 9 April 2020, the Fair Work Act 2009 was temporarily amended to introduce provisions to help with the implementation of the JobKeeper payment scheme. Under these new amendments, the Fair Work Commission (FWC) will have a role in resolving some disputes relating to the JobKeeper payment scheme.

Up until now, it’s been somewhat of a mystery as to which disputes will be handled by the FWC and how they will treat it and although we have not seen any rulings as yet, a legal benchbook has just been released outlining how these matters will be treated.

To save you some time and headspace, we have outlined the most important parts that we think you need to be aware of as employers, however you can access the JobKeeper disputes benchbook here if you want further information.

Ok, so firstly a brief rundown of the changes to the Fair Work Act around the JobKeeper scheme.

The amendments are that an employer who qualifies for JobKeeper can make ‘JobKeeper enabled directions’ to eligible employees. These include:

  • A ‘JobKeeper enabling stand down’. This is a form of flexible stand down. It can mean an employee not working on a day they would usually work, work for a lesser amount of time in a day or work a reduced number of hours overall (which can be zero).

The stand down direction can only be given if the employee ‘cannot be usefully employed for the employee’s normal days or hours … because of changes to business’ that are ‘attributable to the COVID-19 pandemic’ or to ‘government initiatives’ to slow its transmission.

  • Directing an employee to perform other duties. The duties in question must be within the employee’s skill and competency and must be reasonably within the scope of the employer’s business operations. The employee must also have any relevant license or qualification required to perform the duties.
  • Directing an employee to work at a different location. This can be any place that is different from the employee’s usual place of work, including the employee’s home, as long as it is ‘suitable for the employee’s duties’. The employee cannot be required to travel an unreasonable distance.

In all of the JobKeeper enabled directions listed above, the direction must be “reasonable” and the employer must consult the employee, and give the employee written notice of the intention to give the direction at least three days before the direction comes into effect, or a lesser period if the employee genuinely agrees.

You need to keep a written record of the consultation with your employee and take into consideration any matters that they raise.

It is also important to note that:

  • The employee under a JobKeeper enabled direction will continue to accrue leave as if the direction didn’t apply (that is at their pre-JobKeeper hours).
  • The direction must also take into account the health and safety of the employee.
  • You can only make JobKeeper enabled directions if you qualify for JobKeeper with the ATO and to employees that are eligible for the JobKeeper payments.

In addition to the JobKeeper enabled directions, the following requests can be made to employees entitled to JobKeeper which the employee cannot unreasonably refuse. They are:

  • You can request an employee to work on days or at times that are different from the employee’s ordinary days or times, but which do not reduce the employee’s number of hours of work (compared with the employee’s ordinary hours).
  • You can request an employee to take paid annual leave, provided the request does not result in the employee having a balance of fewer than two weeks in their annual leave balance. You can also agree with the employee to take their annual leave at half pay for double the time.
  • If you have given an employee a JobKeeper stand down enabling direction, the employee may request to engage in ‘reasonable secondary employment’, or a request for training or professional development. You cannot unreasonably refuse the request.

What happens when there is a dispute?

Either an employer or an employee can lodge a dispute with the Fair Work Commission if there is a dispute around the JobKeeper enabled directions or requests. The FWC will either arbitrate or conciliate and be able to make directions based on “fairness to all parties”.

The types of things that may be disputed and raised with the FWC include:

  • Whether the directions are due to the pandemic
  • Whether the change in days/duties/hours are due to the employee not being able to be usefully employed in their normal days/duties/hours
  • Whether the directions are safe (including transmission of COVID-19)
  • Whether the altered duties are within the skills and capabilities of the employee
  • Whether the direction by the employer or the refusal by the employee is reasonable
  • Whether consultation occurred
  • Whether the change in duties/hours/location are necessary to continue the employment of one or more employees.

So, what would be considered reasonable/unreasonable?

This is one of our most commonly asked question because it is akin to “how long is piece of string?” however some examples of what constitutes reasonable grounds to refuse a JobKeeper enabled direction are:

Caring responsibilities – if an employee has children that are now required to stay home to provide care for. This would be reasonable grounds to refuse to work certain times or certain days.

Safety Implications – if the employee is immunocompromised and at high risk and their altered duties would cause a health a safety risk to them.

We have heard some stories of employees not wanting to actually come in and work at all. They would prefer to be paid for staying home and have an understanding of the JobKeeper scheme being an employee entitlement, however if you have work and duties for the employees to do that meet the above criteria, then the employee cannot reasonably refuse the JobKeeper enabled directions.

Important points to remember

CONSULT, CONSULT, CONSULT! – We cannot stress this enough. Failure to consult will mean that your JobKeeper enabled directions are not enforceable but even more importantly could lead to employees becoming disengaged. The whole point of JobKeeper is to keep employees in work that can better place your business on the other side of this pandemic. And whilst the JobKeeper enabled directions are directions, you are far less likely to come up against disputes if you consult with your employees about the changes.

PAY YOUR WORKERS RIGHT – JobKeeper must be passed on to your employees. We have already seen some reports in the media of some employers arranging to keep some of the payment. Even if your qualified employees don’t work any hours they are entitled to the full JobKeeper payment minus tax.

The penalties for misusing JobKeeper enabled directions are up to $630,000 for organisations. Please don’t try to wreak the system!

BE FAIR AND REASONABLE – remember that your employees still have protected rights even under JobKeeper enabled directions. Make sure that your directions are fair and non-discriminatory. If you only have 20 hours of work per week, try to distribute it fairly and don’t let your decisions be guided by discriminatory reasons.

For most employers who qualify, JobKeeper is a welcome relief. It means that they can continue to operate their business and come out on the other side. In order to ensure that you are compliant with the legislation around JobKeeper, we have included a checklist that we modified from the Fair Work Commission that you can download for free

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We have also created a COVID-19 employer pack with 10 useful templates, including a presentation for your employees around reducing hours, JobKeeper Enabled Directions Letter template and a stand-down letter which is available for purchase here.

If you have any questions or need further support around managing COVID-19 in your workplace, please don’t hesitate to get in touch with us info@hrgurus.com.au

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