Further to our JobKeeper article, a new Part 6-4C has been introduced to the Fair Work Act 2009. This temporary provision authorizes employers eligible for JobKeeper to exercise new more flexible powers to stand down employees who cannot be usefully employed for their normal days or hours because of changes to the business attributable to:

  • the COVID-19 pandemic; or
  • government initiatives to slow the transmission of COVID-19.

Partial stand down powers

These broader powers enable an employer to issue partial stand down directions to a JobKeeper employee to:

  • Not work on a day or days, work for lesser periods on a particular day or days or work a reduced number of hours than the employee would usually work;
  • Change the duties of work; or
  • Change the location of work.

JobKeeper stand down directions given by an employer require three days’ notice (unless the employee generally agrees to a less than notice period) and requires consultation with the employee or a union representing the employee. The JobKeeper stand down direction must be in writing but there is currently no prescribed form.

During a JobKeeper stand down direction period, the employee must continue to receive the base rate of pay applicable for the employee, i.e. the so-called “hourly rate of pay guarantee” of the base rate of pay for the duties performed. A JobKeeper stand down direction does not apply to the employee if the direction is unreasonable in the circumstances. e.g. a direction may be unreasonable depending of the impact of the direction on any caring responsibilities the employee may have.

Flexible Working Agreements

Alternatively, the employer can propose to change the time upon which an employee performs duties to different days and at different times compared with the employee’s ordinary days or times of work but this requires the employee’s written agreement which cannot be unreasonably refused.

Annual Leave directions

Furthermore, an employer can request an employee receiving JobKeeper to take paid annual leave (which will not result in the employee having a balance of paid annual leave of fewer than two weeks) and the employee must consider the request and not unreasonably refuse the request. This extends to the employee taking annual leave for twice the period at half the employee’s rate of pay.

Things to be aware of…

All of the above provisions cease to have effect on 28 September 2020.

Employees subject to JobKeeper stand down directions accrue leave entitlements based on service in the usual way.

The employee subject to a stand down direction has a right to request engagement in reasonable secondary employment, training or professional development while subject to JobKeeper. The employer must consider the request and must not unreasonably refuse the request.

The Fair Work Commission has power to deal with any disputes about the operation of JobKeeper stand down directions including by arbitration.

JobKeeper introduces unprecedented new powers of stand down to deal with COVID-19 but subject to a number of procedural requirements not set out in this brief overview. Should you wish to further discuss any aspect of these provisions in respect of your workforce, we recommend that you contact a member of our Workplace Relations team.

About the Author

Tim Greenall

Special Counsel
Commercially savvy with over 30 years of experience, Tim provides pragmatic employment advice to his clients.

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