Introduction
In response to the coronavirus pandemic, the Federal Parliament and Fair Work Commission have made a number of unprecedented, temporary changes to employment law, to help both employers and employees adjust to the present situation. These include giving employers greater flexibility to adjust employees’ work hours, duties and work location.
JobKeeper and the Fair Work Act
As part of the Coronavirus Economic Response Package, the Fair Work Act now allows employers who are eligible to participate in the JobKeeper Scheme to give directions:
- Directing employees to work reduced days or hours,
- Direct employees to work any duties that are within their skill or competency, and
- Direct employees to work from home or another place (not being their usual place of work) from which it is reasonable for them to work.
In addition, the Act allows employers to make the following requests of their employees, which an employee must not unreasonably refuse:
- An employer can ask an employee to work on different days or at different times to that which they normally would, and
- An employer can ask employees to take paid annual leave, provided that the employee will not have less than two weeks accrued leave as a result of complying with the request.
The Act allows employers and employees to agree in writing that an employee will take twice as much annual leave at half their rate of pay.
Importantly, each of these provisions operate despite any other clause in an Award, Enterprise Agreement or an employee’s employment contract.
To be eligible to exercise these rights under the Act:
- The employer must be eligible for the JobKeeper Scheme and be eligible to receive JobKeeper payments for that particular employee,
- The need to make the directions or requests must be attributable to the coronavirus pandemic,
- The directions or requests must be reasonable,
- The employer must give the employee at least three days’ written notice of the employer’s intention to give any direction (unless the employee genuinely agrees to a shorter period of notice),
- The employer must consult with the employee before giving a direction (and the employer must keep a written record of that consultation), and
- Any direction given must be in writing.
These are welcome changes that will provide many employers with the flexibility that they require to preserve both jobs and business amidst the coronavirus pandemic.
Importantly, employees still accrue leave entitlements at their ordinary rate.
Employers are only required to pay employees superannuation on their wages for their actual hours worked, and not on any additional amount paid by the government as part of the JobKeeper payment, but for which the employee did not carry out work.
Employees who are affected by a direction given by an employer (e.g. resulting in reduced working hours) can ask an employer to allow them to engage in other employment, or to undertake training or professional development, and an employer cannot unreasonably refuse the request.
Changes to Modern Awards
In addition to the above, the Fair Work Commission has amended Modern Awards to include the following provisions:
- Employees who are covered by an Award are entitled to up to two weeks unpaid leave if they are required by government or medical authorities, or are advised by their medical practitioner, to self-isolate, and this prevents them from being able to work, and
- Employers and employees who are covered by a Modern Award can agree in writing to take twice as much annual leave at half pay (which is similar to that provided by the Fair Work Act, but applies to all employees covered by an Award, and not only those eligible for JobKeeper payments).
These changes provide both employers and employees with increased certainty, as there were some questions prior to these changes about whether employees could take unpaid leave if they needed to self-isolate, and whether employees could take double leave at half pay.
How can Sharrock Pitman Legal assist?
Please note, the guidance in this article is of a general nature only as of 23 April 2020 and should not be relied upon as legal advice. The situation is likely to change rapidly, and you should visit the relevant government websites for up-to-date information.
If you require specific legal advice for your situation, please contact us on 1300 205 506 or alternatively fill in the contact form below.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
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