Navigating the employment law landscape is pretty hairy right now as the Australian government is adapting and amending laws to cater for the challenges of the COVID-19 pandemic.  Last night the JobKeeper legislation was passed through parliament, along with amendments to the Fair Work Act to allow the scheme to lawfully flow onto employers and employees. These amendments will allow a number of new flexibilities for employers to help them cope with downturns in business and potential stand-downs of employees.

The amendments include three major categories of changes. These include:

  1. Qualifying employers will be able to make JobKeeper enabling stand down directions to alter the number of hours worked by employees.

This will be tested based on whether or not an employee can be usefully employed at full hours taking into account the pandemic and government responses to stop the spread of COVID-19.

There is also a ‘wage condition’ imposed that requires employers to pay employees the fortnightly amount of the JobKeeper payment, and also contains an ‘hourly rate’ guarantee to ensure employee hourly rates are not reduced as a result of the JobKeeper enabling direction. This is to protect employee minimum wages, no employee should be worse off as a result of the scheme.

Another component of the scheme is that if employees have had their hours reduced they can seek permission to find additional work with a secondary employer.  This has been a major question for employees who have contracts of employment preventing them from holding second jobs.

Having said all this JobKeeper enabled stand-downs will be reviewable by the FWC. This is a further protection aimed to prevent employers from breaching employee rights unlawfully.

  1. Employers will also be able to alter a worker’s usual duties and location of work

This will help employers to adapt to the new conditions being imposed by the pandemic as they need to cut costs and pivot. Examples could be asking café employees to work as delivery drivers or Early Educators being asked to prepare food or perform cleaning tasks where these duties were not outlined in their job descriptions previously. This would obviously only be permitted if the directions were safe and reasonable.

  1. Changes to employee days of work and annual leave

The final change is around qualifying employers being permitted to work with their employees to agree on working different days. This also includes employers being allowed to direct their employees to use up any accrued annual leave entitlements (you must allow them to retain 2 weeks minimum).

A major change is that qualifying employers will only have to provide 3 days’ notice in writing to action any of the above. Electronic notification is permitted. This is a big win for employers as many awards require a minimum 7 days (some even 4 weeks’ notice) to action changes in rosters, hours or directions to use accrued leave. It is believed that this will also override Enterprise Agreements but the detail of the amendments are yet to be published at the time of writing.

Another point to note is that employees will not be able to unreasonably refuse employer requests. Before employers get excited they will still need to comply with all components of the legislation, such as consultation and tough penalties will apply for breaches such as failing to pass on the JobKeeper payments or misusing stand down provisions. It is strongly advised that employers get correct advice before implementing anything in their businesses around the scheme.

Also, worthy to note is that the above changes only apply to employers qualifying for JobKeeper payments and employers who don’t will still have to comply with the current laws. The amendments are also only temporary.

As we all wait for further details around 700,000 employers have already registered for the scheme. Time will tell which employers will be actually be eligible and what the semantics are around the practical implementation.

The fact sheets are available here:

Many are saying that the business community needs to exercise caution before banking on JobKeeper as eligibility is not guaranteed, so employers should be not be promising anything to their employees just yet. The scheme will no doubt help many employers continue to operate and keep people employed which is a great thing but much of the detail is yet to be published.

We have seen a groundswell in the belief that the JobKeeper payments will be just like being on unemployment benefits and some employees are already requesting to be stood down and refusing to come into work, with the idea that they can access JobKeeper and have time off. Employees cannot refuse a reasonable request to work and disputes around reduction in hours or duties will be handled by the Fair Work Commission who will assess the fairness of the directions.

Interesting times ahead…

If you need more support managing COVID-19 in your business we have created a COVID-19 Employer Value Pack with 9 templates including an Employer Guide you can learn more here.

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