JobKeeper directions must be reasonable and involve consultation

In Wilfred Lam v Mobile Technology International Pty Ltd [2020] FWC 4366 the Fair Work Commission has held that not only must a JobKeeper enabling direction be objectively reasonable in all the circumstances to be lawful but that an employer must consult with affected employees before issuing them.

“In deciding the application before me it is also relevant to consider whether any such direction was unreasonable in all the circumstances and whether it was the subject of required consultation. The matters of reasonableness and consultation are deal with in s.789GK and s.789GM which are in the following terms: “s.789GK Reasonableness A JobKeeper enabling direction given by an employer to an employee of the employer does not apply to the employee if the direction is unreasonable in all of the circumstances. Note: A direction may be unreasonable depending on the impact of the direction on any caring responsibilities the employee may have.” “s.789GM Consultation (1) A JobKeeper enabling direction given by an employer to an employee of the employer does not apply to the employee unless: (a) the employer gave the employee written notice of the employer’s intention to give the direction; and (b) the employer did so: (i) at least 3 days before the direction was given; or (ii) if the employee genuinely agreed to a lesser notice period–during that lesser notice period; and (c) before giving the direction, the employer consulted the employee (or a representative of the employee) about the direction. (2) The regulations may require that a notice under paragraph (1)(a) must be in a prescribed form. [2020] FWC 4366 5 (3) Subsection (1) does not apply to a JobKeeper enabling direction (the relevant direction) given by an employer to an employee of the employer under a particular section of this Part if: (a) the employer previously complied with paragraphs (1)(a), (b) and (c) in relation to a proposal to give the employee another direction under that section; and (b) in the course of consulting the employee (or a representative of the employee) about the proposal, the employee (or the representative of the employee) expressed views to the employer; and (c) the employer considered those views in deciding to give the relevant direction. (4) An employer must keep a written record of a consultation under paragraph (1)(c): (a) with an employee of the employer; or (b) with a representative of an employee of the employer.”

Per Wilson C