COVID-19 Developments

13 May 2020

COVID-19 has dramatically changed the workplace landscape and its impact will continue to be felt for years to come. As Australian businesses try to cope with the effect of COVID-19, we provide you an update on the Government’s initiative to assist businesses to continue to operate and secure job loss.

Mental health issues are also on the rise and employers need to be equipped and have the tools to combat this.


JobKeeper Overview: A Guide for Employers

 As a result of the COVID-19, the Fair Work Act 2009 (Cth) (FW Act) has been amended to support the JobKeeper payment wage subsidy (JobKeeper Scheme) announced by the Federal Government on 30 March 2020. The JobKeeper Scheme is aimed at keeping approximately 6 million Australians with their current employers during the COVID-19 pandemic. The changes to the FW Act are contained in the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 (Cth) (Act) and Coronavirus Economic Response Package (Payments and Benefit) Rules 2020 (Rules).

What is the JobKeeper Scheme?

The aim of the JobKeeper Scheme is to preserve and maintain working relationships between employers and employees, whether or not the employee can be usefully employed or simply remains on the books. This voluntary scheme will assist qualifying employers (Eligible Employers) to quickly re-activate operations once COVID-19 conditions improve.

The JobKeeper Scheme is payable to Eligible Employers for a maximum of 13 fortnights for each eligible employee on their books on 1 March 2020 (Eligible Employee) . Employers who qualify will receive a fortnightly payment (in arrears) of $1,500 for each Eligible Employee.

How much do you need to pay Eligible Employees?

Eligible Employers will be paid $1500 per fortnight per Eligible Employee with each Eligible Employee receiving, at a minimum, $1500 per fortnight until 27 September 2020.

The payment process will be different with each Eligible Employee and the business will need to assess each arrangement separately, for example, if an Eligible Employee:

  • ordinarily receives $1,500 or more in income per fortnight (before tax), they will continue to receive their regular income (including incentive-based payments, bonuses, loadings, monetary allowances, overtime, penalty rates or leave payments). The JobKeeper Scheme will subsidise all or part of the income for the fortnight;
  • ordinarily receives less than $1,500 income per fortnight (before tax), the Eligible Employer must pay, at a minimum, $1,500 per fortnight (before tax);
  • has been stood down from all work, the Eligible Employer must pay, at a minimum, $1500 per fortnight (before tax); or
  • was employed as at 1 March 2020, subsequently ceased employment, and then has been re-engaged with the Eligible Employer, the Eligible Employee will receive at a minimum, $1500 per fortnight (before tax).

It is important to note that the base rate of pay (either an hourly rate or otherwise) must not be reduced under the JobKeeper Scheme.

What is a JobKeeper enabling direction?

In addition to JobKeeper payments, the Act inserts a new “Part 6-4C” provision into FW Act, which temporarily enables Eligible Employers to issue JobKeeper enabling directions to Eligible Employees.

In summary, an Eligible Employer has the ability to issue:

  • JobKeeper enabling stand down direction to an employee (including reduced hours of work, or not to work on a day/days the Eligible Employee would ordinarily work);
  • direction to an Eligible Employee about the duties to be performed (including different duties than ordinarily performed having regard to their skills and competency); and
  • direction to an Eligible Employee to perform duties at a different location (including the Eligible Employee’s home).

Any direction issued to Eligible Employees must not be unreasonable in the circumstances. The Eligible Employer must have information to support a reasonable belief that the direction is necessary to continue the employment of one or more employees. It is immaterial that a similar direction has not been given to another employee.

Do you need to consult or give notice of a JobKeeper enabling direction?



 

Yes – Eligible Employers must consult with Eligible Employees (or a representative of the employee) before giving a direction and keep a written record. 

When a direction is proposed a notice must be given at least three (3) days before the direction is given. Failure to consult with Eligible Employees will mean the direction has no effect.

As part of the consultation process, Eligible Employees must be notified that the direction will remain in force until 27 September 2020 (or until withdrawn or revoked by the Eligible Employer, or replaced with a new direction).

What are the rules around JobKeeping enabling annual leave request?

An Eligible Employer may request that an Eligible Employee takes paid annual leave provided it would not reduce accrued annual leave to a balance of less than two (2) weeks. An Eligible Employee must not unreasonably refuse a request.

Agreement may also be made to take twice as much paid annual leave at half of the Eligible Employee’s rate of pay.

Statutory entitlements will continue to accrue as if the JobKeeper direction had not been given.

Does your business need to keep a record of JobKeeper payments?

Yes – unless record keeping requirements are met, there is no entitlement to the JobKeeper payment.

Records must be kept for five (5) years, be in English (or easily converted into English) and readily accessible.

What if there is a dispute?

The Act gives the Fair Work Commission (FWC) power to deal with a dispute by arbitration, mediation, conciliation, making a recommendation or expressing an opinion. An application for the FWC to deal with a dispute may be made by an employee or employer. 


Temporary Pandemic Variations to Modern Awards

On 8 April 2020, the FWC handed down its final decision to vary 99 modern awards as its own initiative to COVID-19, including: 

  • an entitlement to unpaid pandemic leave; and
  • the flexibility to take twice as much annual leave at half pay.

These temporary variations will assist employers in limiting the spread of COVID-19 in the workplace and allow businesses to continue to operate effectively.
The new provisions will apply from 8 April 2020 to 30 June 2020. However, while a period of leave must start before 30 June 2020, it may end after that date.

 A full list of modern awards varied can be found here.

Mental Health Challenges to Working from Home

Businesses are facing new and unique challenges during COVID-19 in managing employees in a ‘new’ working from home era.

While some business may have been prepared, many employers are continuing to trial and establish remote work systems and make necessary adjustments. This may have the effect of increasing stress amongst employees.

To reduce any risks associated with working from home such as a feeling of being isolated, not supported or generally not being part of the team, it is important that employers have systems and process in place to combat this issue.

Below are some practical tips which may assist your organisation:

  • reaffirm expectations and rules regarding working hours, including implementing and/or reviewing a ‘Working from Home’ Policy;
  • ensure there is a ‘check – in’ process to monitor working hours and compensate for overtime;
  • promptly and effectively respond to concerns about health and safety or other work related matters;
  • avoid unnecessary “pressure” which may exacerbate the mental health and wellbeing of employees working from home;
  • avoid unnecessary workloads, especially for employees with family care responsibilities;
  • refrain from increasing surveillance of employees working at home and instead use more personal and constructive methods of supervision;
  • inform employees of any data being gathered regarding home activity and output; and
  • ensure there is daily check-ins and set regular team meetings with employees.

Employers must ensure their policy on working from home has been specifically developed to respond to the genuine operational needs of your organisation and its expectations, including potential health and safety risks.


For further information, or if you require our assistance creating a Work From Home policy please contact our experienced Workplace Relations Team by emailing hjk@hentys.com.au.