Federal Parliament has recently legislated its $130 billion JobKeeper scheme. This will result in approximately 6 million workers receiving a fortnightly payment of $1,500 through their employer. These employees must have been employed at 1 March 2020 and remain employed during this time.

Important amendments have also been made to the Fair Work Act 2009 (Cth). These amendments grant employers broad powers to:

stand down employees (in part or full);
require employees perform alternative duties; or
require employees to work at an alternative location.

An employer must qualify for JobKeeper before issuing these directions.

An employer must also consult with the employee before issuing the direction. The direction must also be reasonable. Further, the employer must also give three days’ written notice of its intent to issue the direction.

Specifically, an employer can issue a “jobkeeper enabling stand down” to require an employee to:

not work on a day where the employee would usually work;
work for a lesser period than the period for which the employee would ordinary work; or
work a reduced number of hours (compared with the employee’s ordinary hours of work).

The direction will be lawful where the employee cannot be usefully employed for the employee’s normal days or hours because of changes to business attributable to:

the COVID-19 pandemic; or
government initiatives to slow the transmission of COVID-19; and

This is much broader than the current stand down test as contained in the Act.

While stood down (in full or in part) the employee is entitled to be paid the higher of:

the jobkeeper payment; or
the amount payable to the employee for the work performed that fortnight.

Alternatively, an employer may direct an employee to perform alternative duties and / or work in an alternative location where:

the direction is necessary to continue the employment of one or more of the employees of the employer; and
the alternate duties / location must be within the scope of the employer’s business operations.

Additionally, the alternative duties must be safe and within the employee’s skill and competency. The alternative location must also be safe and not require to employee to travel an unreasonable distance. These directions can only be given where the employer qualifies for the JobKeeper program. They also must be reasonable and are subject to consultation requirements.

Alternatively, an employer may request that the employee:

work on different days or at different times (compared to the employee’s ordinary days /
take annual leave (although the employee must retain at least two weeks annual leave after complying with the request).

These powers take priority over any conflicting provisions in an employment contract, enterprise agreement and / or a modern award.

These provisions will cease to operate on 28 September 2020.

For further information please contact:

Jasmine O'Brien
Principal
T +61 3 9611 0149 l M +61 401 926 108
E jobrien@sladen.com.au