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JobKeeper Enabling Directions: Guide for Employers and Employees

Written by Luke Musto, Associate

As part of the response to COVID-19, the FairWork Act has seen temporary amendments by way of the JobKeeper scheme. Over the last few weeks, we have had a few enquiries from both employers and employees in regards to changing working arrangements, a key component of the JobKeeper scheme.

In today’s post, we will discuss the “JobKeeper enabling directions” and how these work in practical terms.   

What is a JobKeeper enabling direction?

The new JobKeeper legislation introduces “JobKeeper enabling directions”. Under this legislation, employers are able to make changes to an employees work arrangements, including the following:

  • Directing employees to not work on 1 or more days that they usually work;
  • Directing employees to work for a shorter period than they would usually work on a particular day or days; and
  • Directing employees to work less hours overall than they would usually work.

Employers also able to issue directions to their employees modifying their duties and location of work, providing that they meet the pre-requisite criteria.

What is the pre-requisite criteria?

In order to direct an employee to change their usual work, employers will need to meet all of the following five criteria:

  1. The direction must be reasonable in all the circumstances;
  2. The employer must have information before them that leads them to reasonably believe that the JobKeeper direction is necessary to maintain the employment of one or more employees;
  3. The modified duties must be safe (including having regard to COVID-19);
  4. The modified duties must be within the employee’s skill and competence, and they must hold any relevant license or qualification to carry out the duty;
  5. The modified duties must be within the scope of the business’s operations.

How should an employer give a direction?

If an employer has determined that they meet the criteria to be able to give a direction, they need to comply with the following formal steps:

  1. Provide written notification at least 3 days prior to the JobKeeper enabling direction (this may be less if the employee genuinely agrees otherwise).
  2. Consult with the employee (or their representative) about the direction and keep a written record of the consultation.
  3. Following the consultation, give the employee the direction in writing. 

How long can the direction last for?

A JobKeeper enabling direction will have effect until one of the following occurs:

  •  It is either withdrawn or revoked by the employer;
  • It is replaced by a new employer direction;
  • The Fair Work Commission makes an order requiring it to be revoked; or
  • JobKeeper payments cease (JobKeeper is currently scheduled to end on 27 September 2020).

Conclusion

Many industries have been hit hard by the coronavirus impact and response, and may need to apply a JobKeeper enabling direction in order to manage their employees. Employers should ensure that they are following all the correct steps while giving such a direction. On the other hand, employees should be aware of their rights in regards to these directions to ensure that they are being applied correctly. If you are either an employee who has been issued with a JobKeeper enabling direction, or an employer who is considering issuing a direction, get in touch with our experienced team today to discuss options and next-steps.

Harris Gomez Group is an English and Spanish speaking law firm with 25 years experience based in Sydney, with sister offices in Chile and Colombia. We specialise in business, technology and corporations law, property law, and cross-border issues. We assist individuals, entrepreneurs  and small to large sized Australian businesses with a variety of issues, including corporations law, property law issues (such as retail and commercial rental contracts) and contract disputes. We are members of both Australian Latin American Business Council (ALABC) and Auscham.

To better understand how we can support you, please contact Harris Gomez at hmg@hgomezgroup.com

Our Sydney office is located at Level 7, 92 Pitt Street, Sydney NSW 2000.