JobKeeper Directions and Flexibility Options

The JobKeeper Wage Subsidy will provide a $1,500 before tax per fortnight payment (for JobKeeper Phase 1, for more information on JobKeeper Phase 2 see; https://acapmag.com.au/2020/07/jobkeeper-extended-and-changed/), to all eligible businesses for all eligible staff, which will be passed onto staff, regardless of the number of hours of work they have done or if they have been stood-down.

Eligibility of the business and the staff for the JobKeeper program provides more than just the Payment, it also allows access to the JobKeeper Directions and Flexibility measures under modifications to the Fair Work Act (see the next section for more on this).

In changes to the Fair Work Act, brought to bare by the new companion piece of legislation the Coronavirus Economic Response Package Omnibus (Measures No. 2) Bill 2020, businesses that are eligible for the JobKeeper program, will be able to access the following changed options, rights, pathways and requirements, for their eligible staff.

A note of caution – while the business may be eligible for the JobKeeper program, it may only use the following special provisions, for those staff that are also eligible to receive the JobKeeper Payment.  If the business has a student visa worker, or a causal who has worked less than 12 months for example, then the business will not be able to apply the following special provisions to those employees, because they are not eligible to receive the JobKeeker Payment.

Available to National System Employers and Employees only

In addition to being available only to those businesses and staff that are eligible for the JobKeeper Payment, there is a further restriction on the access to the special provisions.  The business must be a National System Employer. 

The following are National System Employers;

  • All businesses in Victoria
  • All businesses in the Australian Capital Territory
  • All businesses in the Northern Territory
  • All private enterprises in New South Wales
  • All private enterprises in Queensland
  • All private enterprises in South Australia
  • All private enterprises in Tasmania
  • All constitutional corporations in Western Australia (including Pty Ltd companies)

Special Provisions – Flexibility

The business can, if it and the employee is eligible for the JobKeeper Payment;

  • Issue a Direction to reduce the hours of the employee.  This reduction can be a total reduction, where hours are reduced to zero and the employee is ‘stood-down’ from work, or it can be a partial reduction.
  • Issue a Direction to change the duties of the employee, provided the duties are reasonable, safe and within the scope of the business operations.
  • Issue a Direction to change the work location of the employee, provided the location is safe and within the scope of the business operations and not an unreasonable distance from the usual business location or the employees home.
  • Issue a Direction to employees to take accrued annual leave, provided there will be at least 2 weeks left in the entitlement bank after the employee takes the leave
  • Enter into a genuine agreement with the employee to alter the days of work.
  • Allow for the staff to access annual leave at ½ pay for twice the length of the entitlement.
  • Allow for staff to access additional training or undertake work for other employers.

In order to access these Special Provisions, in addition to the overarching requirement for the business and the staff member to be eligible for the JobKeeper Payment there are also other obligations.

Special Obligations

The business is required, if it and the employee is eligible for the JobKeeper Payment;

  • To pay employees who are working their normal wage for their normal work, including superannuation, and
  • To ensure that any employee that is working and earning less than $1,500 before tax per fortnight as their normal wage is topped up to $1,500 before tax per fortnight with the JobKeeper Payment, and
  • To ensure that any Direction that is given is reasonable in all ways, and
  • To ensure that any Direction is given only after;
    • There has been consideration about the necessity of the Direction for the business in each individual case.  Each case (employee impacted) must be assessed completely individually, and
    • There has been a consideration of the safety and appropriateness of the Direction, and
    • There has been genuine consultation (which is documented using the official forms), and
    • There has been writing notice, after the consultation, provided at least 3 days before the Direction comes into force, and
  • To ensure that any Direction is given in writing using the official form
  • To ensure that any Direction given expires either; when it is withdrawn in writing, or when it is replaced by another Direction, or when the last payment is made under the JobKeeper Scheme, whichever comes first, and
  • To accrue annual leave and all other entitlements for any employee that is stood-down (full or partial), as if they had not been stood-down and were in fact working, and
  • To accrue annual leave and all other entitlements for any employee that is taking annual leave at ½ pay for twice the length of entitlement, as if they were not on leave and were in fact working, and
  • To consider any request for annual leave at ½ pay and not unreasonably refuse
  • To consider any request for access to additional training or to work for other employers and not unreasonably refuse

If a business fails to meet these obligations they face steep penalties under the Act.

When a Direction has been given in accordance with these obligations the employee is required to follow the Direction.  Failure to follow the Direction could result in civil penalties to the employee under the Act as well as termination of employment.

Practicalities

For those businesses that have already effected changes onsite, like reducing hours, terminations, redundancies or stand-downs, it is time to establish is the business and staff are eligible for JobKeeper, and if the Special Provisions that are available can be activated.  In some cases where businesses have already consulted and communicated with staff about changes to hours or stand-down (just as an example) the Obligations under this Act may require those businesses to commence another round of consultation and issue the proscribed forms and written notice to ensure that the Directions are valid.

It is very important that the business carefully consider and apply the special provisions and obligations, remembering that they can only be applied to the employees that are eligible for the JobKeeper Payment.

Summary

There have been changes to the options available to businesses for the setting of hours, tasks and location, as well as a framework for the agreement of additional items like days of work, annual leave and taking a second job, or more training.  It is vital that all businesses understand that these changes are not universal.  They are temporary, and they are only available to those businesses who are eligible, and to those staff who are eligible for the Job Keeper Payment. 

This means that there will be the potential for two systems to be running in the same business, where some staff are eligible and others are not.  This also means that some businesses will not, because they are not eligible for the payment, be able to access these flexibility provisions.  Those businesses will still have access to the traditional methods, including changes made by genuine agreement as well as changes made as the result of a restructure. 

ACAPMA is here to answer your questions and guide you through the complexity.  Members are reminded to reach out to employment@acapma.com.au with any questions.

ACAPMA

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