JobKeeper direction to vary work hours held to be reasonable

NB This decision of the Fair Work Commission was overturned on appeal on 13 July.

 

In a recent decision of the Fair Work Commission, a Deputy President of the Fair Work Commission determined that an employer’s Covid 19 enabling direction for certain staff to vary their hours of work was reasonable and valid in the context of the economic situation in which an employer found itself in due to the pandemic. A union challenged the reasonableness of the direction to work longer hours in proceeding in the Fair Work Commission and this an extract from the decision which sets out the legal principles applicable to the issue. Strictly, the claim by the union sought to have the Commission deal with a JobKeeper dispute in accordance with recent amendments to the Fair Work Act, commonly known as the Coronavirus Economic Response Package Omnibus (Measures No. 2 Act 2020 (the ‘CERPO Act’).

“Is the Company’s enabling direction reasonable and fair in the circumstances?

[30] This question is largely directed to the Union’s submission that all employees should receive a percentage equivalent reduction in hours for the percentage of work lost, and that the Company’s particular direction disproportionately and unfairly disadvantages full time and part time employees over casual employees. A number of matters must be considered in respect to this submission.

  1. Prior to COVID-19, full time employees regularly worked in excess of 38 hours a week, and on the Union’s case, worked from 40 hours to 50 hours a week. Part time employees were working close to or more than 38 hour weeks, and some casuals were working up to and more than 38 hours, with others two to three days a week due to their secondary employment. It is trite that overtime, even regular overtime, is not, and should not be viewed as a permanent fixed arrangement, and that by its very nature, overtime is variable and unexpected but, on occasion, is regular and over a long period, and is offered to employees and can be rejected by them according to business needs.
  2. All casual employees were stood down for two weeks prior to 28 April 2020, and some are no longer employed. Mr Laszlo said he was offered no shifts from 24 March 2020 to 17 April 2020, but presumably was paid JobKeeper from 30 March 2020.
  3. Full time and part time employees can also supplement their income by accessing accrued annual leave and RDOs, and accrual of leave is obviously ongoing at three hours a week and is available to be taken up. For example, Mr Suesee has 485 hours of accrued annual leave and 58 hours of RDOs. Obviously, casual employees have no such accrued entitlements.
  4. It was Mr Coe’s evidence that some casual employees are losing more hours than permanent employees.
  5. Some work is not performed by permanent employees, such as public transport ticketing machines and parking meter collections, and covert (undercover) work for small shops and businesses. This work generally requires six casuals on a Monday (the busiest day), and three casuals on Tuesdays and Wednesdays.

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[32] It will be immediately apparent that all full time and part time employees are working in excess of 30 hours a week, and 2 are over 38, and no casual employees are working over 30 hours a week (between 24.46 and 27.43 hours). These are on a rolling average basis. Thus, it cannot possibly be said that permanent full time and part time employees are working 25 hours a week. For full time employees, weekly hours are close to or exceed minimum award hours of 38 hours a week. Accordingly, I consider that   Prosegur  ’s JobKeeper enabling direction was not unreasonable, having regard for all the circumstances.

Can casual employees be required to work more than they worked pre-COVID-19?

[33] The Union expresses its case about disproportionality by seeking an enabling direction which does not require any employee to work more hours in a week or fortnight than they worked pre-COVID-19. The effect of this is to revert casual employees to less hours they are now working, and for some casuals to increase their hours and availability where they have secondary employment or there is an impact on other family or personal circumstances. Two casual employees gave evidence; Mr Laszlo had regularly work 35 to 40 hours a week pre-COVID-19, and said that since 17 April 2020 he now works only three days a week instead of four days. He also works one to two days for an earth moving and excavation business. He claims his casual employment enables him to provide care and support for his young family. In addition to his monetary loss, he says that there is the pressure he feels to make himself more available for work. I have some difficulty reconciling Mr Laszlo’s 35 to 40 hours a week pre-COVID-19 hours, plus one or two days of secondary employment pre-COVID-19, with his claim that his current casual employment of three days plus the other days of secondary employment from which he is not banned, means he has less time for family or other responsibilities.

[34] Mr Rettke gave similar, uncontested evidence. He worked 3 days pre-COVID-19, sometimes 25 hours a week. He is now being asked to work three to four days a week, up to 28 hours a week. Mr Rettke was recently successful in gaining a ten-week work experience role with another employer from 15 June 2020. It was unclear if this role would lead to full time employment. He had approached Mr Coe about the matter who told him that if he was to be unavailable for work, he might have to be let go. Mr Rettke has other business commitments and his casual employment allows him flexibility to enrol and study for various courses, but he cannot afford to lose his job. He has not had an answer to his ten-week work experience predicament. Mr Coe pointed out Mr Rettke’s rolling weekly hourly average in the five weeks prior to 5 June 2020 was 25.32 hours, and on each of those weeks it was 26.15, 28.15, 23.30, 26.15 and 23.45 hours. Given Mr Rettke’s previous patterns of work pre and peri-COVID-19, I cannot discern such a disparity as to make it unreasonable for him to work an average of 25 hours a week as required.

[35] Generally, in respect to casual employees, I accept that those remaining have long service and have had regular casual engagements with the knowledge and imprimatur of   Prosegur   to engage in secondary employment.

[36] However, that does not mean that the essential basis for casual employment is in question; that is, employees can accept offers of casual engagements and that the employer can choose not to make such offers. For the employees, such arrangements can allow the type of flexibility referred to by Mr Laszlo and Mr Rettke, and for the loss of permanent entitlements is compensated by a 25% loading. For the employer, a cohort of casual employees is useful to manage business needs, and is necessary to cater for the peaks and troughs of work in a business. Nevertheless, I apprehend the Union’s submission is that the employee’s request to require an employee to work extra hours is unreasonable in accordance with JobKeeper rules, and as the hours of some casual employees have increased, not by consent, then this may not be permitted by these rules. This submission raises a general question as to whether an employer’s request to an employee is unreasonable, if it requires an employee to agree to an increase in their hours of work ‘on different days or at different times’, compared with the employee’s ordinary days or times of work.

[37] It will be immediately apparent that different expressions are used in s 789GG to describe when an employee performs duties. For example, s 789GG(2)(a) refers to ‘ordinary days or times of work’, whereas s 789GG(2)(d) in respect to the prohibition on reducing hours of work, uses such terms as ‘number of hours’ and ‘ordinary hours of work’. It seems to me that if Parliament had intended to have a prohibition on an agreement increasing hours of work, as it did using different words to prohibit a reduction in ordinary hours of work, it could have easily done so, either by adding such a prohibition in s 789GG(2)(d), or including a specific subsection to that effect. In my view, Parliament did not intend to prohibit an agreement increasing employee’s hours of work, compared with their ordinary hours of work. It follows that absent other factors going to an unreasonable request, it will be unreasonable for an employee to refuse a request to increase his or her hours of work compared to their ordinary hours of work. In my view, the evidence and circumstances in this case do not support the 25 hour week enabling direction being unreasonable, if its effect is to increase the hours of work, compared to the ordinary hours of work of employees, specifically in this case, for casual employees. Given all the changing variables, it seems entirely reasonable to me that while some employees might work more hours than 25, and others less, that the stated intention of providing as far as practicable, a minimum of 25 hours for all employees, is the only balanced, rational and practical decision to have been made. Mr Coe’s unenviable task is to try to balance equity and fairness for employees with the business needs, given a range of different and variable circumstances on a day to day basis, and include such factors as:

  • the type of work; for example, whether it is covert or overt;
  • the profile of customers and meeting their changing requirements;
  • the number of runs required to operate the business on any particular day;
  • the skills and experience of available AVOs;
  • the short notice of the work;
  • availability;
  • refusals to work; and
  • AVOs’ leave requests

To 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  .

 

[38] Lastly, in respect to the Union’s alternative directions to include a reference to secondary employment, such a proposal is not supported by evidence that the employer was not genuinely considering an employee’s secondary employment request. In fact, the evidence is that the relevant employees continue to undertake secondary employment without sanction or criticism.

[39] For the foregoing reasons, I find that the JobKeeper enabling direction issued by   Prosegur   on 3 June 2020 is not unreasonable in all the circumstances for the purposes of s 789GK of the Act. Accordingly, in dealing with this dispute, and taking into account fairness between the parties, I decline to make orders setting aside the employer’s JobKeeper enabling direction of 3 June 2020, or substitute that direction, or add to it by the Union’s alternative directions.

[40] The dispute is determined accordingly and thereby resolved.

Transport Workers’ Union of Australia Queensland Branch v Prosegur Australia Pty Limited [2020] FWC 3139 delivered 17 June 2020