The five new powers of employers
Employers who qualify for the JobKeeper Scheme (a JobKeeper employer) now have the ability to take certain actions when their employees cannot be usefully employed due to COVID-19. This includes:
- standing down employees;
- reducing employees’ hours of work;
- directing employees to undertake certain duties, which may differ from their usual duties (with consultation);
- directing employees to work in a different location (with consultation); and
- making an agreement in writing between the employer and employee (e.g. regarding working hours and the taking of annual leave, including at half pay).
Is your direction to an employee valid?
For an employer’s direction to be valid, it must be reasonable, necessary, and safe (considering the spread of COVID-19). The below actions must also be taken for an employee to be forced to comply with it. There must be:
- written notice of the intent to give a direction, provided at least three days before the direction commences (or a time agreed upon by the employer and employee);
- prior consultation with the employee (or their representative); and
- a written record of this consultation given to the employee.
Once a direction is in place, it continues in effect until it is either: withdrawn or revoked by the employer, replaced by another direction from the employer, altered by the Fair Work Commission or 28 September 2020 has passed.
Are you paying your employee correctly?
Employers must be careful to ensure that they are paying their employees properly. If an employer is receiving JobKeeper payments for their staff, the employer must uphold the “minimum payment guarantee” or “hourly rate of pay guarantee.” Essentially, this means that the employer must pay their employee either the full JobKeeper amount or the amount they are entitled to for performance of their work – whichever is greater.
The calculation of the hourly rate of pay guarantee includes: incentive-based payments and bonuses, loadings, monetary allowances, overtime/penalty rates and leave payments. Consideration must also be given to any new roles or tasks, meaning that the employee’s new base rate of pay must not be less than their previous base rate of pay.
Are you considering the employee’s other entitlements?
When a JobKeeper direction has been issued, the period that the employee is under direction counts as service which may impact other entitlements. If an employee is under a stand down direction or takes paid annual leave, the employee accrues leave entitlements as if the direction/agreement had not been given, this is the same for redundancy pay and payment in lieu of notice of termination.
An employee may also give the employer a request for secondary employment, training or professional development if they are stood down. This request must be considered and not unreasonably refused by the employer.
If you are experiencing any difficulty or concern with regards to these new changes, please contact Griffin Legal for tailored advice. We can assist you to ensure any employment changes you make are legal and are up to date with the latest changes.