The JobKeeper Payment wage subsidy scheme (‘JobKeeper’) ends on 28 March 2021, and the associated temporary provisions in the Fair Work Act 2009 (‘FW Act’) located in Part 6-4C will also cease to operate. Employers who are currently utilising the Part 6-4C temporary provisions should review their affected employee’s working arrangements and consider the options listed below.
Part 6-4C of the FW Act ceasing to operate on 28 March 2021 means that if an employer has issued the following kinds of directions, these will cease to have effect on the same date:
||JobKeeper Enabling Stand Down Directions (‘JKESDD’)|
||JobKeeper Enabled Directions (‘JKED’)|
Employers will also no longer have the ability to request an employee alter their days and times of work in accordance with the Part 6-4C provisions, but will continue to be able to make requests or introduce changes in accordance with applicable industrial instruments (such as a modern award or workplace agreement) or contracts of employment.
*Legacy employers only
When Part 6-4C of the FW Act ceases to operate, section 524 of the FW Act (or alternatively, an equivalent stand down term in a workplace agreement or employment contract, if such a term applies) will provide the only means to stand down a permanent employee without pay where they cannot be usefully employed for reasons beyond the employer’s control. Unlike the ability to partially stand down an employee under Part 6-4C of the FW Act, section 524 of the FW Act (or an equivalent term in a workplace agreement or employment contract) only allows for a ‘full’ stand down, and an employee cannot be directed to work at all during the duration of the stand down.
What if staff still cannot be usefully employed subject to their pre COVID-19 employment conditions?
From 29 March 2021, employers are obliged to return full and part-time employees to the employment arrangements that applied to them prior to the implementation of a JobKeeper direction. If they remain unable to do so, alternative options are limited to the following:
Reduce Ordinary Hours of Work
- Seek the employee’s agreement to:
- Take a period of paid annual leave, or;
- Take a period of unpaid leave (this could be a certain number of hours per week), or;
- Convert to another type of employment (i.e. part-time or casual), noting this is still likely to constitute redundancy of the full-time position;
- (If the employee is part-time and covered by the HIGA) seek agreement to reduce their guaranteed hours to the minimum of 8 per week prescribed by the HIGA, or;
- Retrench the role in accordance with the genuine redundancy provisions set out in section 389 of the FW Act.
Undertake Alternative Duties or Work at an Alternative Location
Clause 17 of the Hospitality Industry (General) Award 2020 (HIGA) states that:
‘An employer may require an employee to perform duties across the different classification streams set out in Schedule A—Classification Structure and Definitions that they are competent to perform.’
Clause 17 does permit employees to be required to work in other areas of the workplace.
Employers with workplace agreements should refer to those agreements to see if they contain similar terms. Contracts of employment often similarly include terms enabling an employer to reasonably direct an employee to perform other duties or work at an alternative location.
Vary an Employee’s Days and Times of Work
Employers will no longer have the ability to request an employee alter their days and times of work in accordance with the Part 6-4C of the FW Act after it ceases. Agreements made in accordance with part 6-4C to alter days and times of work can however be replicated after 28 March 2021 by agreement and/or in accordance with applicable industrial instruments (such as a modern award or workplace agreement) or contracts of employment.
QHA members seeking more information or wishing to discuss a specific employment relations matter are encouraged to contact the Employment Relations Department for a confidential discussion by calling (07) 3221 6999 or emailing firstname.lastname@example.org.