Further to our JobKeeper 2.0 update, the new Part 6-4C of the Fair Work Act has been extended to operate until 28 March 2021. This temporary provision authorizes employers who continue to be eligible for JobKeeper to exercise 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.

It also enables so called "legacy employers" (i.e. employers who accessed JobKeeper prior to 28 Sept 2020 and no longer qualify but are still experiencing a 10% decline in turnover for each relevant quarter as certified by a tax accountant) to exercise modified stand down powers outlined below. This is a new concept but can be useful to an employer whose business was starting to recover after the first lockdown but is buffeted again by the second wave and consequent further lockdown.

1. 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.

For legacy employers, the stand down direction must not reduce the employee's ordinary hours below 60% of the employee's ordinary hours as of 1 March 2020 or to work less than 2 consecutive hours in a day.

JobKeeper stand down directions given by an employer require three days' notice (seven days for legacy employers) and requires consultation with the employee or a union representing the employee. The JobKeeper stand down direction must be in writing and can be accessed at www.fairwork.gov.au.

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.

2. 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.

For legacy employers, such an agreement cannot result in an employee working less than 2 consecutive hours in a day.

3. Things to be aware of...

All of the above provisions cease to have effect on 28 March 2021.

Employees subject to JobKeeper stand down directions accrue leave entitlements based on their pre-COVID hours of work 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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.