Significant changes have been passed in Parliament to be incorporated into the Fair Work Act (Cth) in direct response to the COVID 19 crisis.

NOTE: These significant changes will only affect employers who’s business is entitled to claim the JobKeeper subsidy.

Otherwise, the rules stay the same.

Who is entitled to the JobKeeper Subsidy?

For an employer and employee to be entitled to the JobKeeper subsidy, they must satisfy the following criteria:

Employers:

  1. A turnover of less than $1 billion that have lost 30% or more of their revenue compared to a comparable period of year ago.
  2. With a turnover of $1bn or more and with at least a 50% reduction in revenue compared to a comparable period a year ago.
  3. Charities who have declined in turnover of 15% or more.

Employees:

  1. At least 16 years of age.
  2. Were employed by an eligible employer at 1 March 2020.
  3. Either part of a sole trades, full time, part time or long-term casuals employed on a regular basis for longer than 12 months at 1 March 2020.
  4. An Australian citizen, permanent visa holder, special protected visa category, a non-protected special category visa holder who has been residing in Australia for 10 years or more or a New Zealander on a special category visa.

Summary of changes to the Fair Work Act 2009 (Cth)

‘Stand down’ directions

Under the new changes to the Fair Work Act, employers are authorised to temporarily stand down their employees because of business changes attributable to the pandemic or because of government initiatives to slow down the pandemic and those changes have meant that an employee cannot be usefully employed.

Employer are only able to stand down an employee if the direction can be made safely and can include the following:

  1. An employee does not work on particular day/s; and
  2. An employee works for a lesser period than their ordinary hours including up to nil hours.

It is important for employer’s to note that during the stand down period an employee accrues annual leave and an employer is not able to change the hourly rate applicable to the employee who is the subject of the direction.

Direction to change the nature of an employee’s duties

Employers are able to give a direction to their employee about the nature of the employee’s duties. The key elements employers must satisfy when giving this direction are as follows:

  1. The alternative duties proposed are safe;
  2. The employee is qualified to perform the directed duties; and
  3. The duties are within the scope of the employer’s business operation.

Employers must keep in mind that during this direction that an employee must not earn less than:

  1. Their current earnings; and
  2. The relevant base rate that applies to the duties of the employee is carrying out as found in an industrial instrument (whichever is greater).

Direction for an employee to take annual leave

Under the new changes an employer can direct an employee to take annual leave at half pay in circumstances where the employer qualifies for the JobKeeper scheme.

An employer may only issue this direction if the leave arrangement with the employee does not result in an employee being left with a leave balance that is less than two weeks.

Implementing a JobKeeper direction

An employer in implementing a JobKeeper direction must ensure they complete the following relevant steps:

  1. The employer must have evidence to support a direction;
  2. The direction to the employee must be reasonable in the circumstances;
  3. The employee must be provided with a ‘letter of intention’ that provides the employee with three days’ notice that a direction will be provided;
  4. The direction must be in written form;
  5. The direction remains in place until such time as it is revoked by written notice form the employer; and
  6. The employee must comply with the reasonable direction.

What to do next

If any employees or employers need any guidance regarding the changes to the Fair Work Act, call us on 1300 88 23 86 and talk with one of our experienced and friendly lawyers.