Understanding JobKeeper Enabling Direction

The new Jobkeeper enabling direction will allows employers to manage staff numbers, mobility and varied tasks which previously required full consultation.

Understanding JobKeeper Enabling Direction

JobKeeper is a wage subsidy scheme designed to help keep Australian in jobs and support businesses affected by the significant impact of COVID-19. The scheme is governed by the Coronavirus Economic Response Package (Payments and Benefits) Act 2020 and associated rules.

 

What is a ‘jobkeeper enabling direction’?

The Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 inserts a new Part 6-4C into the Fair Work Act 2009 (Cth). This new provision allows employers to give employees directions and make certain requests of them – what is referred to as a ‘jobkeeper enabling direction’.

In order for an employer to issue a jobkeeper enabling direction, the employer must qualify for the jobkeeper scheme (a “qualified employer”). Additionally, the employee to whom the direction is made must be an employee who is eligible to receive a jobkeeper payment (an “eligible employee”). Jobkeeper enabling directions can be made at any time during the jobkeeper scheme and all jobkeeper enabling directions cease to have effect from the 28 September 2020 when the scheme concludes.

It is important to note that a jobkeeper enabling direction applies even where the direction is not consistent with the Fair Work Act, the modern award or enterprise agreement or the contract of employment.

 

What directions can the employer give?

There are three kinds of directions that a qualified employer can issue:

1.  A ‘Jobkeeper enabling stand down’ (s 789GDC)

    • Requires an eligible employee not to work on a day they would usually work, or work for a lesser period on a day, or work a reduced number of hours overall (including nil hours).

    • It must be established that the eligible employee cannot usefully be employed and that implementing the stand down direction is safe.

    • Similar to the usual stand down provision in s 524 of the Fair Work Act, there must be causative element to the stand down direction: the stand down direction can only be given if the eligible employee cannot be usefully employed for their normal days or hours because of changes to business’ that are attributable to the COVID-19 pandemic or to government initiations to slow its transmission.

 

2. Directing an eligible employee to perform other duties (s 789GE)

    • Duties must be within the employee’s skills and competency.

    • Duties must be reasonably within the scope of the employer’s business operations.

    • The employee must have the relevant licence or qualification to perform the required duties.

    • Must be necessary to continue the employment of one or more employees (s 789GL).

    • Directing an eligible employee to a different place of work (s 789GF)

    • Must be a place different from the employee’s normal place of work, including the employee’s home.

    • The place of work must be suitable for the employee’s duties.

    • The place of work must not require the employee to travel a distance that is unreasonable in all the circumstances.

    • Must be necessary to continue the employment of one or more employees (s 789GL).

 

When is a jobkeeper enabling direction valid?

A jobkeeper enabling direction by a qualified employer must be in writing, must provide the eligible employee with sufficient notice (at least 3 days) and must provide an opportunity for consultation between the parties (see s 789GM of the Act). Additionally, jobkeeper enabling directions cannot be made retrospectively. Any directions issued prior to 9 April 2020 when the relevant provisions were included in the Fair Work Act are not jobkeeper enabling directions.

A direction issued under Part 6-4C does not apply to an employee if the direction is unreasonable (s 789GK). Unreasonableness is determined by taking into account all the circumstances. Where a direction to change the duties or location of work for an employee is issued, the qualified employer must hold a reasonable belief that the direction is necessary to continue their employment (s 789GL). A reasonable belief includes taking the objects of Part 6-4C into consideration, which are found in s 789GB and includes helping people keep their jobs and ensuring employees remain productively employed during the pandemic.

A jobkeeper enabling direction does not apply during a period when an employee is taking paid or unpaid leave authorised by their employer (s 789GDC(3)(a)).

 

How does a jobkeeper enabling direction affect your leave entitlements?

Pursuant to s 789GS of the Fair Work Act, your employment during the jobkeeper enabling direction is counted as service and your leave continues to accrue as if the jobkeeper enabling direction had not been given.

 

Disputing a jobkeeper enabling direction

The Fair Work Commission (“FWC”) has authority to deal with some disputes about the jobkeeper payment scheme, which includes disputes about jobkeeper enabling directions (s 789GV). This provides that the FWC may deal with a dispute about jobkeeper enabling directions by:

    • mediation or conciliation;

    • the FWC Member making a recommendation; or

    • arbitration.

Additionally, the FWC has power to make any order (s789GV(4)) it considers desirable to give effect to a jobkeeper enabling direction considering fairness between the parties concerned, such as setting aside the direction or replacing one jobkeeper enabling direction with a different jobkeeper enabling direction.

It is important to note the FWC cannot assist with disputes about whether an employer is eligible to receive a jobkeeper payment or whether an employee is an eligible employee for the purposes of the jobkeeper scheme. The direction given by the employer must also be a jobkeeper enabling direction in order to fall within the FWC jurisdiction to hear the dispute.

 

How we can help you

We understand that this is a new issue and area of law for employers and employees to navigate in an already challenging season. Please contact our dedicated COVID-19 response team if you need any assistance or have any questions about issuing or disputing a jobkeeper enabling direction. Call (07) 3252 0011 and speak with our Client Engagement Team to make an appointment.

If you want to know more about the JobKeeper scheme you can visit our previous articles on JobKeeper Fast Facts.