JobKeeper JobKeeper has been legislated and applications are open however there still remains so many questions and a lot of confusion around JobKeeper and what employers can and can’t ask their employees to do. We’ll address some of the most frequently asked questions we’ve been receiving in this article. In addition to the JobKeeper subsidy legislation, amendments were also made to the Fair Work Act. These amendments are designed to give employers temporary powers to implement additional flexibility measures in their workplace. These will be referred to as JobKeeper enabling directions and will override any modern awards, employment contracts or enterprise agreements for those employers and employees who are part of the JobKeeper program. A brief outline of these changes are: • An employer can stand down an employee without pay either completely or partially for any period that they cannot be usefully employed. • An employer can change employment arrangements – ie alter the days of work, hours of work, change the location of work either to working from home or working from other premises. • An employer can direct their employees to undertake additional duties or alter their normal duties of work as long as they have the necessary skills, licences etc. • An employer can direct employees to take annual leave but only if the employee’s accrued annual leave balance doesn’t go below two weeks. • An employer can agree with an employee to take annual leave at half pay. These directions give employers more flexibility however we caution employers to proceed carefully before enacting these measures. These can only be utilised once you are on the JobKeeper program and there are quite stringent requirements and conditions around their use. For many small and medium businesses, these requirements may be too severe
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and difficult to comply with. They also carry penalties of up to $126,000 for an individual or $630,000 for a corporation if you get it wrong. So, it would be wise to proceed cautiously when using them. For many SME’s they may be better to consult with their employees and come to individual written agreements instead. The JobKeeper enabling directions would then be useful for those employees where agreements cannot be reached. Can I reduce an employee’s hours to equal to the $750 JobKeeper weekly payment? You could achieve this by consulting with your employee about the change to hours and receiving their agreement in writing. If the employee doesn’t agree then you could do it by enacting the above JobKeeper enabling direction if if you can demonstrate that the employee cannot be usefully employed because of changes to the business as a result of COVID-19 and you comply with the other related requirements. Proceed carefully however as if not enacted correctly it could be determined to be a demotion and / or constructive dismissal which could leave you at risk of an unfair dismissal claim. Can I reduce an employee’s wage rate salary or package to meet the $750 weekly payment? This is expressly prohibited under the amendments to the Fair Work Act. You cannot reduce an employee’s wage or hourly rate, so that they can work more hours to receive the $750 weekly subsidy. However, there are circumstances where you may be able to negotiate with your employees and consult with them about reductions in salary packages if you are paying above the award wage or you have salary packages that may include vehicles or other type of benefits. In those cases, it is worthwhile having a consultation with your employees and seeing if an agreement can be reached. This can only be done by agreement with the employee and when you pay above the award wage. We also strongly recommend you put this agreement in writing.
