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Are you aware of what you can and cannot direct your employees to do during the COVID-19 pandemic? Were your employees stood down before 9 April? There are some tricky concepts that employers need to be mindful of when considering both their commercial stability and ensuring they meet their workplace health and safety obligations.
We have released previous EMA Notes about the industrial relations effects of the Coronavirus Economic Response Package Omnibus (Measures No 2) Act 2020 (“Jobkeeper legislation”) in its general terms, as well as how to manage employees during the COVID-19 pandemic – including to ensure that employers meet their duty of care obligations.1

The new Jobkeeper legislation gives employers increased flexibility in arranging work with their employees, including varying hours of work, requests to take annual leave, and partial stand downs. However, employers need to be aware of some of the limitations on what they can direct employees to do and when they can give those directions.

Employees Stood Down before the Jobkeeper Legislation

Under the Jobkeeper legislation, employers have greater flexibility and can direct employees onto a ‘Jobkeeper enabling stand down’, which includes a direction to:2

(a) not work on a day or days on which the employee would usually work;
(b) work for a lesser period than the employee would usually work on a day or days; and/or
(c) work a reduced number of hours,

provided the employer meets the relevant criteria and the employee cannot be usefully employed during those periods due to the COVID-19 pandemic or the related Government initiative(s). A Jobkeeper stand down will override any enterprise agreement or award impediment to this.

Importantly, to be authorised under the Jobkeeper legislation, the direction must have been given after 9 April 2020 and after the employer has qualified for the Jobkeeper scheme. This is especially relevant for employers who, before qualifying for the Jobkeeper scheme, had stood down employees in accordance with their enterprise agreements or the Fair Work Act 2009 (Cth) (“FW Act”).

All employees, including employees currently on a non-Jobkeeper enabled stand down, must be provided at least three days’ written notice of the intention to give a Jobkeeper enabled direction before issuing it.3 Employers must consult with employees during this period and must keep a written record of the consultation.

There may be various other matters to consider before notifying an employee who was stood down under an enterprise agreement or the FW Act that the employer intends to give them a Jobkeeper-enabled direction instead. We recommend employers in this situation seek advice prior to giving written notification to their employees.

Employees Refusing to Attend Work

On 6 April 2020, EMA Consulting ran a webinar about, among other topics, when an employee could reasonably refuse to perform work given the current COVID-19 pandemic. Since this webinar, various reports have emerged about employees refusing to work (or demanding to work lesser hours) because
of their employer’s eligibility for Jobkeeper payments.

The Jobkeeper legislation gives additional flexibility to employers and employees in making alternative arrangements. Importantly, while the legislation does provide employers with an ability to direct employees to make various changes to their working hours, it does not give employees an entitlement to refuse to attend work. That is, an employer’s eligibility for (or receipt of) Jobkeeper payments is not a valid reason to refuse to work.

Previous EMA Notes and webinars have addressed the need for employers to ensure that it is safe for employees to return to work, and that any reasonable safety concerns are appropriately considered.

An unreasonable refusal to work is a disciplinary matter and should be treated in its ordinary way. Additionally, a refusal to comply with a Jobkeeper enabling direction is also a contravention of the FW Act.4 Where an employee refuses to work or refuses to comply with a Jobkeeper enabling direction,
employers should therefore begin their ordinary disciplinary process and seek legal or financial advice about the Jobkeeper payments for that employee.

Employers Requiring Employees to work additional hours

There have been press reports, and we have taken enquiries, about employers seeking to require casual and part-time employees eligible for Jobkeeper payments to work more than their usual working hours (eg up to the value of the Jobkeeper payment). The Fair Work Ombudsman has addressed this in a Fact Sheet. By agreement, an employee might work more hours, but if they do not wish to, there are a number of factors in determining whether the employer’s requirement was reasonable and therefore enforceable. Employers seeking to require employees to increase their hours during Jobkeeper should seek specific advice.   Require further information/assistance? If you require further information or advice, please contact one of our consultants.
  1 For general information on JobKeeper, see EMA Notes 14, 18, and 19. For information on managing employees during the COVID-19 pandemic, see EMA Notes 6 and 10.
2 Fair Work Act 2009 (Cth) s 789GDC (“FW Act”), as inserted by Coronavirus Economic Response Package Omnibus (Measures No 2) Act 2020 sch 1 part 1 (“Omnibus Act”).
3 FW Act s 789GM(1), as inserted by Omnibus Act sch 1 part 1.
4 FW Act s 789GQ, as inserted by Omnibus Act sch 1 part 1.

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