Jobkeeper: your workplace rights, entitlements and protections

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In April, in response to the COVID-19 outbreak, the federal government introduced amendments to the Fair Work Act 2009 in order to implement the Jobkeeper scheme. The Jobkeeper scheme is a wage guarantee system funded by the federal government and designed to keep employees in work during the current period of economic hardship. It grants additional powers to employers and provides related protections for employees.

Salary

Employers participating in the Jobkeeper scheme receive $1500 from the federal government per participating employee per fortnight. The Jobkeeper legislation requires that this full amount be passed on to each participating employee.

This means that employees who usually earn less than $1500 per fortnight must be paid the full $1500, even though it is greater than their usual salary.

Employers who usually earn more than $1500 per fortnight must be paid their usual salary. In this case, the employer should apply the $1500 provided by the government and top up the difference between $1500 and the employee’s ordinary fortnightly salary.

If an employer misuses the scheme, it may be subject to repayment or penalties.

Workers compensation

Whether an employee receiving income maintenance under a workers compensation scheme is eligible to receive Jobkeeper payments will depend on their degree of incapacity for work.

If an employee is totally incapacitated for work, and is fully compensated under a workers compensation scheme, the employee will be ineligible for Jobkeeper for any fortnight in which they are in receipt of the workers compensation payment.

If an employee is partially incapacitated for work, but continues to work reduced hours and receives a reduced salary from the employer, the employee will be eligible for Jobkeeper and should be paid the full $1500 per fortnight as well as continuing to receive income maintenance.

Jobkeeper enabling directions

Under the Jobkeeper legislation, employers who are participating in the Jobkeeper scheme may issue “Jobkeeper enabling directions” to participating employees.

There are three kinds of directions – see below. Employers have a wide discretion to issue these directions as needed. The Jobkeeper legislation suspends the operation of any award or enterprise agreement which would restrain the employer from making a direction to alter duties.

In order to issue a direction, the employer must give three days’ written notice to the employee and must consult with the employee or their representative. The direction must be reasonable and safe, including with respect to the nature of COVID-19.

A direction issued under the Jobkeeper legislation remains in place until it is withdrawn or revoked by the employer, replaced by a new direction, or set aside by the Fair Work Commission.

Direction to stand down

Employers may direct employees to “stand down”. A stand down direction may, for example, require an employee not to work on a day or days when s/he would normally work, or to work for a lesser period of time than s/he would normally work on work days. The direction may reduce an employee’s hours to zero hours per week.

If an employee has been stood down under the Jobkeeper legislation, the employee should continue to be paid $1500 per fortnight during the period of the stand down. This arrangement is different to the ordinary stand down provisions in the Fair Work Act – those which apply to most employees and employers not participating in Jobkeeper –which do not require an employer to pay an employee who has been stood down.

Direction to alter duties

Employers may direct employees to alter their duties, provided that the directed duties are within the employee’s level of skill and competency, and that the employee has the appropriate qualifications.

In some cases, employers and employees may be able to agree to a change of duties without the employer needing to issue a direction. Where this occurs, the agreement should be recorded in writing.

Direction to change the location of work

Employers may direct employees to perform their work at a place different to their normal place of work. This could be, for example, the employee’s home, or another of the employer’s places of business.

Employees can only be required to change the location of their work to a location which is suitable for their duties, and they cannot be required to travel unreasonable distances in order to enable a change in work location.

Jobkeeper flexibility arrangements

The Jobkeeper legislation also provides for employers and employees to enter into three types of flexibility arrangements – see below. The employer and employee must both agree to the flexibility arrangement, however employees have an obligation to “not unreasonably refuse” the employer’s request.

Changing work hours

An employer may request that an employee changes their hours of work. This may involve the employee working on different days or at different times to their ordinary work hours. For an agreement to change work hours to be lawful under the Jobkeeper legislation, the following criteria must be met:

• both parties must be participating in Jobkeeper
• the agreement must be in writing
• the change in work hours must be safe
• the change cannot result in a reduction of the employee’s work hours

The employee must continue to be paid during the period of changed work hours.

Leave at half pay

An employer and an employee may agree for the employee to take leave at half pay. This could, for example, involve an employee taking four weeks off of work and being paid the equivalent of two weeks of pay.

During a period in which an employee is taking leave at half pay, their leave continues to accrue as usual, on the basis of their full ordinary rate of pay. Similarly, if an employee’s employment is terminated – including as a result of redundancy – during a period in which they are taking leave at half pay, any notice payment is calculated on the basis of the employee’s full ordinary rate of pay.

Annual leave

An employer may request that an employee takes their accrued annual leave. If an employee takes annual leave pursuant to a flexibility arrangement, the employee’s accrued annual leave balance must not go below two weeks.

Disputes

The Fair Work Commission has jurisdiction to deal with any disputes arising under the Jobkeeper legislation.

Johnston Withers Lawyers – experience you can trust

At this stage, the Jobkeeper scheme will cease at the end of September. It is not yet clear what, if any, measures the government will put in place from October.

Johnston Withers’ employment lawyers have extensive experience in providing advice to both employees and employers in relation to entitlements and workplace relations. We can assist employees and employers to bring applications to the Fair Work Commission in relation to disputes arising under the Jobkeeper legislation. If you’d like advice or direction from a lawyer, please contact us on 8231 1110 or get in touch online.

Photo: Johnston Withers Lawyers.