Under the Covid 19 crisis amendments to the Fair Work Act, an employer who or which is receiving JobKeeper wage subsidies may give employees whose wages are being subsidized under the scheme certain directions about performing their work irrespective of an applicable contract, modern award or enterprise agreement. Employees may refer disputes about such directions to the Fair Work Commission for urgent arbitration. Here is an extract from the Fair Work Commission’s extract which explains the issue.
“Division 4 of Part 6-4C of the Fair Work Act authorises an employer who qualifies for the jobkeeper scheme to give a jobkeeper enabling direction to an employee about their duties of work or the location where their work is to be performed.
Duties of work
An employer that has qualified for the jobkeeper scheme can direct an employee to perform any duties during a period (the relevant period) that are within the employee’s skill and competency.
A direction about duties of work is authorised if:
the duties are safe, having regard to (without limitation) the nature and spread of COVID-19
where the employee was required to have a licence or qualification in order to perform those duties – the employee had the licence or qualification
the duties are reasonably within the scope of the employer’s business operations, and
the employer becomes entitled to one or more jobkeeper payments for the employee
for a period that consists of or includes the relevant period; or
for periods that, when considered together, consist of or include the relevant period.
Payment while a direction in relation to duties of work applies
If a direction in relation to duties of work applies to an employee, the employer must ensure that the employee’s hourly base rate of pay is not less than the greater of the following:
the hourly base rate of pay that would have applied to the employee if the direction had not been given to the employee, or
the hourly base rate of pay that is applicable to the duties the employee is performing.”