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Important employment law updates – COVID-19

Emily Shoemark

16 Apr 2020

Topics

  • COVID-19
  • Employment Law

As a result of COVID-19 and the restrictions that governments are putting in place, changes are being made to the rights and obligations of employers and employees across all industries on a regular basis. In the last two weeks there have been some important updates to the Fair Work Act and to some modern awards aimed at assisting employers to deal with the economic impact of COVID-19. Emily Shoemark summarises these changes below.

1. Changes to the Fair Work Act

A new Part 6-4C has been inserted into the Fair Work Act (Act) which is applicable to employers who qualify for the Jobkeeper payment (eligible employer). The new part is temporary and will apply until 28 September 2020.

The new provisions allow an eligible employer who is entitled to the JobKeeper payment in relation to a particular employee to:

  • give a temporary ‘JobKeeper enabling direction’ to that employee to modify employment terms and condition; and/or
  • enter into a JobKeeper agreement with an employee about when work is performed or to take annual leave. 

It is important to note that both of these options available to eligible employers must be applied individually to an employee and cannot be applied generally across a business. Both the directions and the agreements will be valid for the period in which the employer is receiving JobKeeper payments in relation to that particular employee (JobKeeper Period).

The amendments to the Act also give the Fair Work Commission the power to deal with disputes under new Part 6-4C.

Jobkeeper enabling directions 

Part 6-4C establishes some different types of directions that an eligible employer can issue to an employee:

  • ‘JobKeeper enabling stand down direction’ – to reduce ordinary hours of work or reduce the days or hours worked in a week. This type of direction can be given if the employee cannot be usefully employed for their normal hours and days due to the pandemic. The hourly base rate of pay will remain the same, but the hours of work reduced.
  • A direction for the employee to perform any duties that are within the employee’s skill and competency, as long as the duties are safe and reasonably within the scope of the employer’s business operations; or
  • A direction changing of the location of the employee’s work, which could include a direction to work from home for the JonKeeper period. The new location of work must not be an unreasonable distance away, it must be safe for the employee to work at the new location.

Any JobKeeper enabling direction must:

  • be in writing
  • only be issued following consultation with the employee
  • be reasonable in all of the circumstances. This assessment will change for each employee – as what is reasonable for one employee may not be reasonable for another.

Jobkeeper agreements

Part 6-4C of the Act allows an eligible employer to enter into an agreement with an employee (in writing) about the days or times the employee is to perform work, or to for the employee to take annual leave at half pay.

If an employer proposes a JobKeeper agreement to an employee, that employee must consider the request and not unreasonably refuse it.

  • Agreements about days or times of work: an employer can ask an employee to perform their duties on different days or at different times, compared to when work is normally performed, for the JobKeeper Period. The agreement cannot have the effect of reducing the number of hours of work, and it must be safe and reasonably within the scope of the employer’s business for the work to be done at those different times
  • Agreements about annual leave: An employer can ask an employee to agree to take paid annual leave, if taking the leave will not leave the employee with a balance of less than 2 weeks leave at the end of the JobKeeper Period. The employer and employee can also agree to take twice as much paid annual leave at half pay.

2. Amendments to modern awards

The Fair Work Commission has now varied 103 modern awards to provide more flexibility during the COVID-19 pandemic. The variations are temporary, and in the form a schedule inserted into each award setting out the additional provision. The amendments currently apply to 30 June 2020.

The most significant amendments have been made to the Restaurant Industry Award and the Hospitality Award to allow employers to change ordinary hours of work, direct employees to take annual leave and to address the temporary close down of businesses. The Clerks (Private Sector) award also allows employer to make directions to employees about hours of work and taking paid annual leave.

The remaining 99 awards have been varied on the initiative of the Commission to insert a new Schedule X into each to provide for pandemic leave and to allow an employee to take annual leave at half pay, subject to the employer’s agreement.

Please refer to the updated awards here (https://www.fwc.gov.au/about-us/coronavirus-covid-19-updates-advice) for the detailed changes.

How can we help?

Every employer needs to review the employment conditions applying to their business and ensure they are aware of any changing obligations, and relief available to assist with changing business practices. Please contact our Employment Law team to assist with understanding your rights and obligations on 02 6285 8000 or by email.

*The content of this article is provided for information purposes only, and we do not accept any liability for reliance upon the information contained in this article.  This information cannot be relied upon as legal advice.