JobKeeper abuses; employers be very aware

From many calls which have been made to my office during the past fortnight, it is evident that many employers have a gross misunderstanding of their rights as employers under the JobKeeper scheme. For example I have been advised of multiple occasions when employers have directed employees to work in a manner which is wholly inconsistent with their obligations under a contract of employment, enterprise agreement or modern awards.

It is true that the Commonwealth’s JobKeeper scheme has resulted in some temporary amendments to the Fair Work Act, which apply until 28 September 2020, and which do provide eligible employers (ie employers who employ employees who meet the statutory criteria) with the right to issue “JobKeeper enabling directions” to adopt different patters of work. However, those directions must be reasonable and cannot be issued to justify the massive manipulation and abuse of employee rights which appears to be occurring, at least as evidenced by the calls I am receiving.

Furthermore it is a simple process to refer such matters to the Fair Work Commission for urgent resolution.

For a summary of what an employer can do in these circumstances, here is an extract form a benchbook issued by the Commission about the matter.

“Under Part 6-4C, an employer that qualifies for the jobkeeper scheme can give a ‘jobkeeper enabling direction’. There are three types of jobkeeper enabling directions:

  1. a jobkeeper enabling stand down direction, including a direction to reduce an employee’s hours, under s.789GDC
  2. a direction in relation to the duties to be performed by the employee under s.789GE, and
  3. a direction to perform duties at a place different from the employee’s normal place of work, including their home, under s.789GF.

More information about the three types of jobkeeper enabling directions is set out below.

  • jobkeeper enabling directions apply even if they are not consistent with:
  • the Fair Work Act (subject to s.789GZ)
  • a ‘fair work instrument’ (such as a modern award or an enterprise agreement)
  • a contract of employment, or
  • a transitional instrument (within the meaning of item 2 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009).

Jobkeeper enabling directions must be in writing, must not be unreasonable, and are subject to the notice and consultation requirements.

Subject to any order made by the Commission in dealing with a dispute about the operation of Part 6-4C, jobkeeper enabling directions operate until they are withdrawn, revoked or replaced. All jobkeeper enabling directions cease to have effect at the start of 28 September 2020.

The Minister for Industrial Relations has the power to exclude one or more specified employers from being able to give jobkeeper enabling directions,6 but this has not yet occurred. “