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COVID-19: JobKeeper Enabling Directions and Consultation Obligations
As part of the rollout of the JobKeeper payment by the Federal Government, changes have been made to the Fair Work Act 2009 (Cth) (the “FW Act”) to allow employers to make a “JobKeeper Enabling Direction” (“JED”), which are a separate species of directions that an employer may make in the current economic and social circumstances. However, the discretion to make a JED is not unlimited, and employers must ensure that they meet the consultation requirements before making any such directions.
What can a JED cover?
Under the JED, an employer may make a direction to alter the working conditions of their employee in the following areas:
- their hours or days of work (a “JobKeeper Enabling Stand Down Direction”);
- their duties of work; and
- their location of work.
The discretion available to an employer to make a JED is not unlimited. Each of these areas requires as a starting point that the employer is qualified for the JobKeeper scheme at the time of making the direction, as well as other requirements depending on the type of direction made (such as the new duties being within the employee’s skill and competency, or the employee not being required to travel an reasonable distance taking into account the circumstances surrounding the COVID‑19 pandemic).
The most interesting aspect of the JEDs, and certainly the one that has attracted the most attention, has been the JobKeeper Enabling Stand Down Direction. Under this JED, an employer is able to direct an employee:
- not to work on a day or days that they would usually work;
- work for a lesser period than they would ordinarily work on a particular day or days; or
- work a reduced number of hours compared with the employee’s ordinary hours of work.
The JobKeeper Enabling Stand Down Direction is not as strict as the requirements for a stand down under section 524 of the FW Act and enables employers to stand down employees irrespective of whether they are otherwise entitled to do so under the FW Act, a workplace instrument (such as an enterprise agreement) or a contract of employment.
How can I meet the consultation obligations?
Before making a JED, employers must give written notice to an employee of their intention to give the JED at least three days before the direction is given (although it can be less if it is genuinely agreed to), and consult the employee or their representative (for which there must be a written record).
The consultation obligations under a JED can be distinguished from the obligations in a redundancy situation given that the nature of a JED is a temporary measure in place for a short period of time, in comparison to the permanent nature of a redundancy. However, the Fair Work Commission has recently decided in Australian Municipal, Administrative, Clerical and Services Union v Auscript Australasia Pty Ltd  FWC 1821 (in the context of a redundancy during the COVID-19 pandemic) that employers must take particular care to treat employees with dignity during periods of crisis involving a pandemic.
It is therefore important that the consultation obligation is not just a “box ticking” exercise, but genuinely an attempt to have employees and their representatives provide input and an opportunity to potentially influence the decision.
When consulting with an employee or their representative, the following factors should be taken into account:
- the reasonableness and safety of the JED;
- whether there are any other duties the employee could perform;
- whether the employee has the skills or duties to perform other duties or whether the JED is necessary for the ongoing employment of one or more employees;
- giving employees a genuine opportunity to be heard and seeking their input and views; and
- taking into account their views before issuing the JED and being receptive to any suggestions offered by employees.
Other relevant resources
9 April 2020