As part of the federal government’s business assistance package, for employers who will join the JobKeeper scheme, there have been complementary changes made to the Fair Work Act (“Act”) to facilitate that schemes operation.
Amendments to the Act made by the parliament on 8th April temporarily enable national system employers (this effectively means almost all private sector employers) to issue what are called “JobKeeper enabling directions”.
Essentially, if the employment relationship in question is regulated by a modern award, an enterprise agreement or an employment contract, and the employer is eligible for the JobKeeper scheme, then these amendments can be used by that employer and the employees concerned, to moderate the effects of the economic slowdown that has occurred.
These “enabling directions” can provide for increased flexibility of working hours, performance of duties and location of work. It also covers the capacity to make more flexible arrangements for the taking of, and how to pay for, annual leave. Further, days and times of work can be agreed which go beyond existing limitations, other than the maximum 38 ordinary hours.
The FWC will be able to resolve disputes, including by arbitration. The directions are subject to the usual or typical safeguards which go to reasonableness, both from the employer and employee viewpoint.
The new law requires that an employer accessing the JobKeeper scheme and instituting one or more of these enabling directions must still meet minimum payment obligations to employees who are subject to these arrangements.
That includes by ensuring that at least the JobKeeper payments they receive through the scheme are passed on to such employees each fortnight, or the amount they would receive for the work they have physically performed, if that would be greater.
The amendments also deal with rules about accruals, service and interaction with other laws. The whole of the amendments are due to automatically expire on 28 September 2020.
These legislative changes are accompanied by Payments & Benefits Rules (“Rules”) constructed to administer the scheme. These Rules explain how employers determine turn-over and other eligibilities and provide practical assistance about a range of potential conflicting benefits, such as how to handle overlaps of entitlements.
The scheme is administered by the ATO which retains all its usual powers of investigation to ensure compliance.
Changes to Fair Work Act
Payments & Benefits Rules
The Fair Work Commission has amended 99 modern awards to include an entitlement for employees to take unpaid pandemic leave in circumstances where the employee is re-quired by medical advice or authority to self-isolate and is prevented from working as a result.
The other change to this large group of awards is greater flexibility in the taking, and paying for, annual leave. It pro-vides for an employer and employee to agree that the employee can take twice as much leave (time) on half pay.
These changes will operate from 8th April 2020 until 30th June 2020.