JobKeeper questions; employers requiring employees to work more hours

JobKeeper questions; can an employer require more hours to be worked for same pay?

In the past few days, I have frequently been asked whether an employer can require an employee to work additional hours to qualify for the fortnightly JobKeeper wages subsidy of $1500 when before JobKeeper the employee’s remuneration was less than that amount. The context of course is that there are many Australian employees, particularly amongst young workers, who stand to gain a financial windfall because participating employers are required to pass on the whole of the subsidy (less any tax or statutory superannuation) to qualifying employees* irrespective of their pre JobKeeper remuneration.

Under the legislation employers are entitled to give qualifying employees directions to reduce hours or days of work. These are rights which are included in a number of available “stand down directions”. The validity of such a direction depends upon it being objectively reasonable and are supported by amendments to the Fair Work Act.

The stand down directions include other rights employers have to change usual duties, days and time and locations of work. The legality, validity and reasonableness of them may be tested in the Fair Work Commission.

The statutory safety net is that these directions are not permitted to reduce an affected employee’s hourly base rate according to a contract, award or enterprise agreement.

The powers which have been conferred upon employers by the legislation DO NOT entitle an employer to require an employee to work more hours than previously to earn the wage subsidy which must be passed on to employees in full save for tax and superannuation.

So the answer to the question posed is no.

Of course, none of the foregoing affects the ability of the parties, without coercion, to amend terms of employment mutually, provided that the NES, awards and enterprise agreements are honoured. Furthermore, employers which breach the legislation, or contravene the general protections face very severe penalties.



*(qualifying employees who were employed as at 1 March 2020 and are currently employed)