Job Keeper and Fair Work Act 2009 (Cth). What are Employee safeguards?

On 9 April 2020, the Coronavirus Economic Response Package Omnibus (Measures No.2) Act and Rules 2020 became law. Until 28 September 2020, the Fair Work Act is amended to allow employers who are eligible to receive the Job keeper allowance, to give “job keeper enabling directions” to their employees. What are Employee safeguards?

The Job keeper scheme, provides payments to qualifying Employers of $1,500 per fortnight (between 30 March to 27 Sept 2020) for each eligible employee, paid at the end of each calendar month for fortnightly wages paid by the employer. The Employer must show amongst other matters, a decline in their turnover to a minimum percentage set out in the Rules and pay at least $1,500 per fortnight for the benefit of the employee.[1]

Under the changes, an Employer qualifying and entitled to Job Keeper payments, can give “authorised” directions to an employee, without their consent, about their –

  • Duties;
  • Work location, and
  • Direct them to Stand down from duties by directing them not to work on days usually worked; work for a lesser period or reduced hours compared with their ordinary work provided that – (a) the employee could not be usefully employed for their normal days/hours during the stand down period because of changes to the business attributable to the COVID-19 pandemic or government initiatives to slow the transmission and (b) the direction is safe having regard to the nature/spread of the virus.[2]

An employer and employee can also reach agreement on when the employee is to perform work, or take annual leave, including at half pay.

An employee becomes eligible to receive the payment if amongst other matters, they were employed with the employer on 1 March 2020 as a permanent or long term casual employee; were  an Australian resident and 16 years or over and have provided their employer with a Nomination form to receive the minimum fortnightly payment. Some employees are excluded including casuals with less than 12 months of service, or casuals not working on a regular or systematic basis with their employer and employees to whom workers compensation payments are payable due to a total incapacity to work.

There are some safeguards for Employees set out in the Act and consequences for Employers who breach the new provisions.

Some of the safeguards for Employees, include –

  • the employee must be consulted and provided with written notice before a direction is given;
  • the direction from the employer about a change of duties or location, must be necessary to continue the employee’s employment;
  • directions about different work locations must be suitable, and if not at their home, must not require an employee to travel an unreasonable distance, or otherwise are safe and within the scope of their business’ operations;
  • the direction must not be unreasonable;
  • employees must not be paid below the greater of the amounts payable to them for the performance of their work during a fortnight (including bonuses, overtime etc) or the job keeper payment ($1500) (“the minimum payment guarantee”);
  • During a stand down or change of duties direction, employees must not be paid below their ordinary base hourly rate of pay and not below the wage condition (i.e $1,500 before tax per fortnight) ;
  • agreements about taking annual leave or at half pay, or working at different days or times, must require the safe performance of duties and be within the scope of the business operations;
  • Breaches by an employer to meet the minimum payment guarantee; hourly rate guarantee; requests for secondary employment or training during stand down; or an FWC order will attract a penalties of up to 60 units (presently $12,600).
  • Breaches by an employer knowing their job keeper direction is not authorised, or a serious contravention of a wage condition to pay at least $1,500 per fortnight, will attract a higher penalty of up to 600 penalty units (presently $126,000)
  • During a stand down period, the employee can request to work in secondary employment or receive training which the employer can not unreasonably refuse;
  • FWC may conciliate and then arbitrate disputes until 28 September 2020;
  • Workplace rights of employees are expanded for the purposes of General Protections rights, to include the benefits under the amending Act, or agreeing/not agreeing to different working arrangements.

Presently, a Job keeper enabling direction can only be in effect until 28 September 2020 unless withdrawn, revoked or replaced by the employer or an order by FWC.[3]

For legal advice on how the Job Keeper laws affect your rights in the workplace, contact our team to arrange a consultation to discuss your requirements further.

This article is not intended to constitute legal advice and we recommend you obtain legal advice specific to your circumstances in relation to the content or scope of this article including recent changes to the Fair Work Act 2009 (Cth).

[1] The Coronavirus Economic Response Package (Payments and Benefits) Rules, s.6 & 10

[2] Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020, s.789GDC(1)

[3] S.789GP of the Act.