Employment Law

COVID-19 Edition 7: JobKeeper - For Employees

On 8 April 2020 the COVID-19 Emergency Response Act 2020 was passed by both Houses of the Commonwealth Parliament inter alia to assist businesses to continue to operate during the COVID 19 Crisis. This Legislation has also resulted in amendments to the Fair Work Act 2009.  The new JobKeeper legislation gives eligible employers the right to issue JobKeeper directions to employees.  An employee has the right to decline to participate in JobKeeper, however any eligible employee not taking up the nomination is at risk of a redundancy, if the employer's business revenue is adversely affected by COVID-19.  JobKeeper directions allow an employer to tell an employee:

  • which days they do not work;
  • to work for shorter hours on any given work day;
  • to work shorter hours in any given pay period, including nil hours;
  • their duties are changing, though the employee must be qualified and skilled in the new duties; and
  • change work location, though the change in location must not be unreasonable.

An employer can also ask an employee to use annual leave which an employee cannot unreasonably refuse, though any leave taken in this circumstance must not reduce the balance of leave below 2 weeks.  

The employer is required to give 3 days' notice of a JobKeeper direction, though a shorter period can be agreed to by the employee, and the employer is to consult with the employee or their representatives before issuing a JobKeeper direction.  A period of time when an employee is the subject of a JobKeeper direction still constitutes service. If an employee is stood down or directed to take annual leave under a JobKeeper direction, they will still accrue leave entitlements. These entitlements will accrue at the employee's ordinary hours of work as if the JobKeeper direction had not been issued. This means a full-time employee working 20 hours per week will still accrue leave entitlements at their full-time rate. This period of time will also need to be included when calculating an employee's entitlement to notice of termination or redundancy entitlements.  The new JobKeeper provisions allow an employee to refer any dispute over JobKeeper directions to the Fair Work Commission.  Employees, employee organisations and Fair Work Inspectors will have standing to bring a claim about suspected contraventions of the JobKeeper provisions in the Federal Court, the Federal Circuit Court or eligible State or Territory courts.

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