Fair Work Act (FWA) Changes for those eligible for JobKeeper

On 9 April 2020 parliament passed new laws that override any modern award, enterprise agreement or employment contract. Two stand out changes are that;

1. Employees can be stood down without pay (completely or partially) for any period that they cannot be usefully employed; and
2. Employers can change employment arrangements for specific employees.

The FWA changes impact those eligible to recieve the JobKeeper subsidy. To learn more about JobKeeper read our article through the link below.

New Stand down Provisions

Employers can now give a direction "JobKeeper enabling stand down direction" to an employee to not work on a day they usually work and/or reduce their days and hours that the ordinarily work. The employee will not be paid for the work that is not performed.

In order to give a "Jobkeeper enabling stand down direction" an employer must meet the following criteria;

1. The employer must show that the employee cannot be 'usefully employed'. An exert from our article "Employers - How to manage employees during COVID-19" explains 'usefully employed'

What does ‘usefully employed’ mean?

The FWA does not provide a definition of the term ‘usefully employed’. Courts and tribunals debated about this and have usually determined that if an employer is able to obtain some benefit or value for work that could be performed by the employee, then in the circumstances the employer would not be able to stand down the employee. This factor is vital in determining whether an employer is lawfully justified in relying on the stand down provisions.

The onus falls on the employer to establish that the employee who has been stood down cannot be ‘usefully employed’. In doing so, an employer must show that the appropriate steps had been taken to find useful employment for the employee. This in itself does not require the employer to find an alternate position for the employee which is significantly different to their contracted position, or that the employer should change the whole system of work to accommodate for that employee in order to maintain their employment.

1. Be a recipient of the JobKeeper subsidy scheme;
2. The impact to the business must be attibuted to the COVID-19 crisis or Government initiatives to slow the spread of COVID-19;
3. The Employer must pay the Minimum Payment Guarantee, being the greater of the JobKeeper payment or the amount payable to the employee in relation tot he performance of work during the fortnight;
4. the Employer must ensure that the hourly base rate of pay is not less than the rate that usually applies to the employee;

A stand down direction would not apply to an employee who is taking paid or unpaid leave that has been authorised or is otherwise authorised to be absent from the workplace.

Change employment arrangements by direction

An Employer can now direct an employee to perform different duties and at a place different to their normal work place including in the employees home. Further those duties can be directed to be performed on different days and at different times to their ordinary working arrangements.

An employer can also direct an employee to take paid annual leave by providing at least 24 hours notice and as long as the employee mantains a balance of no less than 2 weeks annual leave. Force annual leave can be paid at full rate or the employee may agree to take double the paid annual leave at half pay.

Of course there are rules governing when those directions can be given including (not an exhaustive list);

• That the duties are within the employees skill set;
• The duties are safe, especially with respect to the risk of contracting COVID-19;
• The duties are reasonably within the scope of the employer's business operations;
• The place is suitable to the employee's duties;
• The place is safe.

The ultimate test as to whether the Employer can give a direction that changes the employment conditions is whether the Employer has a reasonable belief, supported by information before them, that the direction is necessary in order to mantain the employment of the employee

The new rules impose consulting obligations

The Employers is obliged to consult with the employee and must give at least three days notice in writing before the JobKeeper direction is given or a lesser period if by agreement.

There will be consquences for failing to properly comply with the new employment laws and we recommend that all businesses get the right advice before taking any steps or giving any directions.

Contact our employment law team on 6962 3433 or via email at [email protected] for efficient and succinct advice.

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