PLEASE NOTE THAT THE DECISION REFERRED TO BELOW HAS BEEN APPEALED.
The Fair Work Commission (“FWC”) has ruled that it was reasonable for an employer to increase hours for jobkeeper employees. This is a significant decision because it confirms that it may be reasonable for an employer to issue a jobkeeper-enabling direction (“JED”) compelling its employees to work more hours than they did pre-COVID 19.
Background
The cash-in-transit industry is one of the many Australian industries which has been hit hard by the economic crisis brought on by the coronavirus pandemic. The respondent, Prosegur Australia Pty Ltd (“Prosegur”) a cash transit business, is no exception. Following the downturn in business, Prosegur took a number of measures to reduce costs, including a 20% pay cut for senior managers, a leave reduction program and a ban on shifts for short-term casuals. When Prosegur announced a minimum 25-hour work week for their armoured vehicle operators, the union objected. The union brought an application to have the FWC consider the jobkeeper dispute and rule on the validity of the JED.
The union argued that the JED was unreasonable under s789GK of the Fair Work Act 2009 (Cth) (“FWA”): • the direction resulted in a disproportionate reduction in hours for permanent staff as most full and part-time employees regularly worked up to 50 hours and 35 hours, respectively; and • some part-time and casual employees would have to work more hours under this new arrangement and the jobkeeper rules did not permit increasing casuals’ hours without their agreement.
Not an unreasonable direction
The FWC considered the evidence of the actual hours worked by employees following the JED. Since Prosegur issued the direction, casual employees at the depot were working less than 30 hours and part-time and full-time employees were all working more than 30 hours. Deputy President Sams noted that full-time employees were generally working about 38 hours a week, which is the award minimum. He noted that working overtime is not a guaranteed arrangement. On this basis, the deputy president found that the JED was not unreasonable in the circumstances.
Increasing hours for jobkeeper employees
Section 789GG of the FWA provides that under the jobkeeper scheme, an employer may request that jobkeeper employees work different days or times if it is reasonable in all the circumstances. The FWC considered this wording and concluded that if Parliament had intended to prohibit an agreement which would increase hours for jobkeeper employees, provision would have been made for such prohibition.
Deputy President Sams found that in the circumstances, implementing a roster with a weekly minimum of 24-hours was the only “balanced, rational and practical decision to have been made.” He said: “[t]o rigidly ensure and apply exactly the same hours for all employees would, in my opinion, be an administrative and rostering nightmare, that would impose an unreasonable burden on Prosegur.”
Takeaways for jobkeeper employers
What is reasonable will be determined by the operational needs of the employer’s business. In the case of Prosegur, there was a clear business case for setting a minimum of 25 hours per week. The purpose of the jobkeeper legislation is to avoid job losses by allowing employers some flexibility. Employers should use this time while the legislation is in place to explore ways they can minimise costs, increase productivity and ensure longevity for their business.
