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COVID-19: JOBKEEPER SERIES | Part 04

 
 

Part 4: What are JobKeeper enabling directions, and how can they help my business?

We continue our JobKeeper series blog on the Government’s wage subsidy programme.  Part 4 of this blog centres on the benefits of the “JobKeeper enabling directions” for employers.

What are JobKeeper enabling directions?

The Fair Work Act has been amended specifically to include new provisions through to 28 September 2020 that are directly available to employers who qualify for the JobKeeper payment to help their businesses react in a dynamic and flexible way to the challenges of COVID-19 on their business.

Please note:  these directions do not apply to any employers that do not qualify for JobKeeper, or who are public servants.

These directions are:

  • Stand-down provisions allowing the employer to direct the employee to work less hours than they would usually work (including no hours).  Employees can also ask their employer, if they have been stood down, to engage them in reasonable secondary employment / training / PD;

  • Temporarily alter the usual duties to be performed by the employee provided the work is safe, does not require special certification and within the employee’s abilities; and

  • Alter the place where duties are performed, including an employee’s home.

Best Practice

As always, consultation and getting down new temporary arrangements in writing is vitally important.  The key points for making sound and defendable JobKeeper directions are listed below: 

  1. Make sure you are transparent and communicate with your team about what is happening and why;

  2. Treat everyone fairly (don’t play favourites);

  3. Consider the affected employee’s point of view (even if you disagree with it);

  4. Ensure you have considered safety requirements – particularly if you are directing an employee to do other duties;

  5. Record the new arrangements in writing – either on company letterhead to the employee or via email.  Remember to follow this up when circumstances change, which they are apt to do as we work through this staged approach out of the distancing health requirements.

If there are still disputes after following the above, please contact us for assistance – sometimes a third party can support these discussions in a more productive way.

Formal disputes

An employee can still make a JobKeeper dispute application to the Fair Work Commission via a special form (F13A) with a swift triage process in place to assess applications swiftly, to allow all parties to resolve differences and assist businesses with getting back to work.

The Commission’s Timeline specifically for JobKeeper disputes is as follows:

Note: ‘ex tempore’ refers to “on the spot” decisions.

Blog_JobKeeper_04.png

It is interesting that the Commission has noted that a majority percentage of JobKeeper disputes lodged are outside of the Commission’s jurisdiction, and hence rejected.  These have tended to be disputes based within the Treasury’s realm (ATO), such as eligibility for wage subsidy payments and the “one in, all in” scenario.

A final note on Safety for JobKeeper enabling directions:

  • If you assign a new duty to an employee, and it is potentially unsafe for them due to lack of knowledge, experience or the duty requires qualification/certification, then that employee has a right to refuse to carry out this duty. 

  • More so, an employer should never place an employee in an unsafe situation due to any of the above points – please take your duty of care seriously. 

  • Working from home still requires an employer to ensure a safe working environment – there is no contracting out of that obligation.  In days gone past, an employer could visit an employee’s home to run through a safety & ergonomic checklist.

Practically-speaking, we do not endorse this in these pandemic times, but we do strongly encourage you to ask for pictures of where and how an employee is working to help them ensure good ergonomics, a safe working space, etc.  If new equipment is needed to assist with this, then please consider this. 

You are trying to create a safe working environment for them as you would in the physical workplace, reduce any risk of injuries and lessen the risk of an injury claim.

The goalposts are moving frequently - please reach out to our experienced HR Unplugged team to assist your business in navigating these difficult times.

 
 
 
Mad Panda Media