Central to the new JobKeeper laws are the rights of employers to give “JobKeeper enabling directions”.

 
Importantly the rights only apply for those employers and their employees who qualify for the JobKeeper scheme and where the employees are receiving the JobKeeper payment.

Criteria for giving a JobKeeper Direction

Before giving a JobKeeper enabling direction, an employer must consult with their employee or their representative and must give the employee at least three days’ written notice of their intention to give the direction, unless a lesser notice period is genuinely agreed to. The employer must keep a record of the consultation.

A direction will not apply if the direction is unreasonable in all of the circumstances. For example a direction may be unreasonable if it requires:

  1. to work different days or hours of work that would not allow the employee to undertake their caring responsibilities; or
  2. to change the location of work requiring the employee to travel to a new location that is too far away.

A direction must be in writing.

A direction continues until it is withdrawn, revoked by the employer, replaced by a new direction or until 28 September 2020 when it will automatically end.

The period the direction is in effect counts as service and the employee will continue to accrue leave entitlements as though the direction had not been given.

JobKeeper enabling stand down direction

By a stand down direction, an eligible employer can direct an employee to

  • not work on a day/s they would usually work;
  • work for a lesser period than they would usually work on a particular day; or
  • work a reduced number of hours (including reduced to nil).

The employer must be able to show that:

  • the direction is safe having regard to the nature and spread of COVID-19; and
  • the employee could not be usefully employed for their usual days or hours because of changes to business due to the COVID-19 pandemic or the surrounding government initiatives to slow its transmission.

Employees whose hours are reduced by a direction must not have their base rate of pay reduced below their rate had the direction not been given.

Employees are able to request permission from the employer to seek secondary employment, training or professional development. The employer must consider and not unreasonably refuse the request.

An employee may also take authorised paid or unpaid leave, for example, annual leave.

Employee duties and location of work direction

An employer may direct an employee to do any duty that is within the employee’s skill and competency, safe and reasonably within the scope of the employer’s business operations.

An employer may direct employee to perform duties at a place that is different from the employee’s normal place of work, including the employee’s home, if:

  • the place is suitable for the employee’s duties; and
  • the duties to be performed at the place are both safe and reasonably within the scope of the employer’s business operations.

The direction has no effect if the employer does not have information that leads them to reasonably believe the direction is necessary to continue the employment of the employee.

Taking paid annual leave by agreement

An employer may request an employee to take annual leave if complying with the request will result in the employee having a balance of paid annual leave of at least two weeks.

The employee must consider the request and not unreasonably refuse the request.

The employer and employee may also agree for the employee to take twice as much paid annual leave at half the employee’s rate of pay.

Changes to days of work by agreement

An employer may request an employee to change their working days or usual times of work if that is safe and reasonably within the scope of the employer’s business operations.

The employee must consider the request and not unreasonably refuse the request.

Employers must be careful to comply with the detailed requirements of JobKeeper enabling directions and for advice about a specific situation please contact our experienced employment lawyers.