We have recently provided updates on temporary variations made to some modern awards and the proposed introduction of additional measures such as pandemic leave and annual leave at half pay in response to the COVID-19 pandemic.

As a further response, the Federal parliament has now passed the  Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 which temporarily amends the Fair Work Act by inserting a new Part 6-4C – Coronavirus economic response. These variations will operate until 28 September 2020.

This legislation dovetails with the Coronavirus Economic Response Package (Payments and Benefits) Act 2020 and the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 which set out the mechanisms (including eligibility criteria) for payments under the JobKeeper scheme.

Provided certain conditions are met, the new Part 6-4C authorises employers who qualify for the JobKeeper scheme to give qualifying employees directions (known as JobKeeper enabling directions) in relation to:

  • standing down employees either totally or partially –during a period for which the employer qualifies for a JobKeeper payment, the employer may give employees directions to:
    • not work on a day or days on which the employee would normally work;
    • work for a lesser period than the period the employee would normally work on particular days; or
    • work a reduced number of hours;
  • duties, location and days of work – the employer may give employees directions to perform duties during a period at a place that is different from their normal place of work (including the employee’s home);
  • days and times of work – the employer may make a request to make an agreement with employees (which employees must consider and may not unreasonably refuse) that they work on different days or times than they ordinarily would; and
  • taking paid annual leave – the employer may request that an employee take paid annual leave, including leave at half pay provided they will still have a 2 week leave accrual balance if taken.  Employees must consider and may not unreasonably refuse the request.

Although some recent temporary Award variations enable employers to do some of the above, including by agreement with employees, this variation to the Act extends those rights and applies regardless of Award coverage.

Employers wishing to take advantage of these provisions should bear in mind that there are associated consultation obligations which must be complied with before issuing JobKeeper enabling directions.  There are also record-keeping obligations to be met.

Importantly, the new Part 6-4C also gives the Fair Work Commission jurisdiction to deal with disputes arising from such directions.

Please contact us if you would like to know more about how to use these provisions in your workplace.

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