After strong campaigning for a wage subsidy by Australian unions, the Federal Government announced the JobKeeper scheme, having previously ruled out countenancing such a program. The ACTU have been providing regular updates, fact sheets and briefing notes on industrial issues affecting workers during COVID-19. Here is information regarding JobKeeper that has been sourced from ACTU documents, dated 8 April 2020. You can sign up for email updates from the ACTU ‘Coronavirus Workers’ Rights Resource Centre’ and Unions NSW ‘COVID-19 Worker updates newsletter’.
Changes to the Fair Work Act 2009
In order to allow for the implementation of the JobKeeper scheme, the government has chosen to make changes to the Fair Work Act 2009 (FW Act). The government’s Coronavirus Economic Response Package inserts a number of entirely new provisions into the FW Act, the repeal of these provisions is automatically set to occur on 28 September 2020.
The new provisions mean an employer who qualifies for JobKeeper is entitled to a $1500 JobKeeper payment for eligible workers and must pay the employee an amount of at least $1500 per fortnight.
An employer is also required to pay the greater of the available amount of JobKeeper payment or the wages that would otherwise be payable for the work performed in the period.
JobKeeper enabling directions
The new provisions allow employers who have qualified for JobKeeper to give what are known as 'JobKeeper enabling directions'. This means an employer participating in the JobKeeper scheme can direct you to perform different duties or change your location of work, including working from home, if this is reasonable and necessary to save jobs. You must be given three days’ notice in writing of any change (unless otherwise agreed) and your employer must consult with you or your union first.
Any valid directions given have effect despite any applicable terms in a Modern Award, enterprise agreement, or employment contract or transitional instrument.
Alterations to duties
Any duties you are directed to perform must be reasonably within the scope of your employer’s business operations, within your skill, qualifications and competency, and safe for you to perform. You must be paid your usual rate of pay, or the rate applicable for your new duties, whichever is higher.
Alterations to work location
Where a direction is given in relation to work location, you must not be asked to travel an unreasonable distance and it must be safe and reasonably within the scope of your employer’s business operations for you to perform your duties from home. It must be safe to perform the directed duties, including with respect to COVID-19. Workplace health and safety laws continue to apply to working from home.
A new form of stand down
The new provisions enable an employer to give a direction to an employee to be stood down if the employee cannot be usefully employed because of the COVID-19 pandemic or the government’s initiatives to slow the spread of COVID-19.
This stand down provision not only allows for a worker to be stood down completely, but also allows employers to reduce: the number of days on which a worker works; the number of hours worked on a given day; and/or the number of hours worked overall. A worker is not stood down whilst on a period of leave authorised by the employer or whilst otherwise authorised to be absent.
If your employer is participating in the JobKeeper scheme and reduces your hours to save jobs in the business, you must get paid either the JobKeeper payment of $1500 per fortnight before tax, or your ordinary pay for the hours you’ve worked, whichever is higher. You are not entitled to be paid for the hours you don’t work, but must be paid your usual rate of pay for any hours that you do work. You should continue to accrue annual leave based on your former hours.
If you have had your hours reduced by a JobKeeper eligible employer, you can ask your employer if you can perform a second job or undertake professional development or training while you’re not working. Your employer must consider this request and must not unreasonably refuse.
Employers who qualify for JobKeeper can make certain requests, which workers (for whom the employer is entitled to JobKeeper payments) must consider and cannot unreasonably refuse. These include requesting you agree to an alteration of the days and times that you work, or that you take annual leave. Agreeing or not agreeing to an employer request is a workplace right.
Alterations to days and time of work
An employer can request you agree to work on different days or at different times. If agreed to, it must not have the effect of reducing your number of hours of work (compared with your ordinary hours of work).
Employers who qualify for JobKeeper can ask you to agree to take some annual leave, as long as you will not be left with a balance of less than two weeks. You must consider the request and can only refuse if you have reasonable grounds to do so. Contact your union if you are unsure whether you are allowed to say no.
You should be paid your annual leave at your usual rate of pay. You are able to agree with your employer to take twice the period of annual leave at half your rate of pay if you wish.
If you think you have been treated unreasonably by your employer or have a good reason that you cannot comply with a directive (for example, caring responsibilities), you should contact your union for advice. Protections under workplace health and safety, anti-discrimination, and workers compensation laws continue to apply. Your union may be able to ask the Fair Work Commission to hear and decide a dispute about your pay, a change to your hours or days of work, or a request to access your annual leave and reverse the employer’s direction if it is unfair.
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