JobKeeper Package: Advice for union members from a Melbourne Employment Lawyer

23/04/2020

By Fiona Rothville, Senior Associate, Industrial and Employment Law and Carol Saunders, Union representative

Last month, the Federal Government announced the JobKeeper package, which will provide financial aid to businesses and their employees during COVID-19. If you are living in Victoria, you should be aware of your rights as a worker throughout this time, and in relation to this unprecedented scheme.

With our expertise as a Melbourne employment lawyer for employees and a union representative, we have prepared this guide to inform you of your rights, and what action you can take if you are unfairly treated.

For video Q&A format click here.

What is the JobKeeper scheme?

The JobKeeper package is the Federal Government’s $130 billion wage subsidy to support businesses, sole traders and not-for-profit organisations to keep workers on the books and paid during the COVID-19 pandemic.

Eligible employers who have suffered a downturn in turnover due to COVID-19 can apply for a JobKeeper payment of $1500 per fortnight (before tax) for each of their eligible employees.  This payment comes from the Australian Tax Office (the ATO) and is passed on to eligible employees as a form of a wage subsidy.

Registrations for the scheme have opened and enrolments will be accepted from 20 April 2020.

Employers will nominate their eligible employees and will also need to inform those employees that they are being nominated.

Employers will receive confirmation of their acceptance to the scheme from 4 May 2020.

The scheme will run for six months, from 30 March until 28 September 2020.

What if I earn more/less than $1500 a fortnight?

If you continue to work as normal and ordinarily received $1500 or more in income per fortnight before tax, you will continue to receive your regular income according to your applicable award, enterprise agreement or contract.

If you ordinarily received less than $1500 per fortnight you will receive the $1500 as a minimum payment per fortnight.

This applies whether you are a part time or casual employee – it is a flat rate.

Can my employer stand me down from work or reduce my hours?

Employers can give a stand down direction to reduce an employee’s days or hours of work, including to none.

This is a stand down specific to the JobKeeper scheme and is different from stand down provisions that exist in the Fair Work Act (or your enterprise agreement/contract if applicable).

If your hours are reduced to none, you will receive the $1500 payment as a minimum.

Your hours can be reduced to the value of the $1500 payment.

Employees must still be paid their ordinary hourly wage while working – so a reduction in hours can be directed to match the $1500.

You cannot be paid less than the $1500 (before tax) payment guarantee per fortnight. For example, an employer cannot take administration fees or require any repayment. It is an offence (penalty of up to $126,000) if an employer does not pass on the full amount.

When is an employer able to reduce my hours?

An employer can only give you a direction to not work on your usual days or for hours you would usually work if you cannot be usefully employed for your normal days or hours due to COVID-19, and the direction is safe regarding the nature and spread of COVID-19.

Can my employer direct me to perform different duties or work at a different location?

Your employer can give you a direction to change your duties or work location, including working from home.

The duties must be within your skill set, competency, qualifications and licensing, and within the scope of your employer’s business operations.

The location must be suitable for your duties; and not require you to travel a distance that is unreasonable in the circumstances.

You may also be asked by your employer to change the days or times of your work. You must consider the request and can only refuse on reasonable grounds.

What is unfair dismissal?

If you are given a direction to stand down or to change your hours or location, it must be reasonable in all the circumstances and necessary to save jobs.

You must be given a minimum of three days written notice of any direction, although this can be reduced by agreement. You or your representative (union) must be consulted about the direction.

A direction is effective until it is revoked or replaced by a new direction from your employer.

A direction will cease to have effect on 28 September 2020 (when the JobKeeper scheme is set to end).

Any dispute about a direction or stand down can be heard by the Fair Work Commission.

Protections under workplace health and safety, anti-discrimination and workers’ compensation laws continue to apply.

Can I work elsewhere or undertake training if I have been stood down or had my hours cut?

You have a right to request to engage in reasonable secondary employment or to undertake professional development or training while you are not working.

Your employer must consider this request, and must not unreasonably refuse the request.

Can I be forced to take my annual leave? Can I take annual leave at half pay?

You can be asked by your employer to agree to take some annual leave, as long as you will not be left with a balance of less than two weeks. You must consider the request and can only refuse if you have reasonable grounds to do so.

Your annual leave will be paid at your usual rate of pay.

You can also agree with your employer to take twice the period of annual leave at half your rate of pay – this is by mutual agreement.

When should I hire an employment or redundancy lawyer?

If you are concerned that your employer has not complied with the requirements of the JobKeeper scheme, you can get advice from your union or an employment or redundancy lawyer in Melbourne. This may include if you have been asked to do more hours or if you are not being paid the full JobKeeper payment.

There are significant penalties for employers who do the wrong thing and it is important that the rights of employees are protected at this time.

How can I get an employment lawyer?

At Gordon Legal, we understand the JobKeeper scheme is a personal issue.

For personalised and individual advice, we offer consultations to discuss your matter.

Please call Gordon Legal (Melbourne) on 03 9603 3000 or our Geelong office on 5225 1600 to speak with a member of our team.

Given the current environment, we are providing consultations over the phone, Zoom, WebEx or Skype.

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