JobKeeper and COVID-19: Workplace rights in a changing world

The COVID-19 pandemic that has swept across the globe has caused suffering to employers, employees and the global economy. The Australian Government responded to the economic crisis with the JobKeeper payment to keep as many people in their jobs as possible. The JobKeeper payment is a $130 billion package that an eligible employer can access to keep the jobs of their eligible employees.

The JobKeeper payment was intimated in early March and was officially announced on 31 March 2020. The measures passed through parliament via the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 (Cth) which will make Part 6-4C of the Fair Work Act 2009 (Cth) (‘Act’). Since then, employers have had the ability to apply for the JobKeeper Payment that commenced on 1 May 2020, subject to the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) (‘JobKeeper Rules’). Employers can continue to apply for the JobKeeper payment until it ends in September 2020.

At Susan Moriarty & Associates we have seen cases where employers have made workers redundant and/or dismissed them due to the economic consequences of COVID-19 without consideration/with ignorance to the JobKeeper allowance.

This article will answer the following questions:

Note: These answers are crafted in a way to give you short responses that does not delve into the detail regarding the elements that must be satisfied such as the wage condition or how the Commonwealth government calculates whether an employer is eligible for the JobKeeper allowance. Should you wish to obtain that information regarding your particular circumstances, we would be happy to help you.

1. Can I ask whether my employer has applied for JobKeeper?

You can ask your employer whether they have applied for the JobKeeper allowance. If you are an eligible employee, you can inform the employer pursuant to the Part 6-4C of the Act that you intend to participate in the scheme and want to know whether they are applying for the JobKeeper subsidy.

An ‘eligible employee’ is one that:

• Is a full time, part time or long-term casual (ie. over 12 months);
• Is not a short-term casual (ie. less than 12 months);
• Is at least 16 years old as at 1 March 2020;
• Was employed by the employer as at 1 March 2020;
• An Australian resident or a New Zealand citizen but registered with the ATO;
• Was an employee during the relevant fortnight that the JobKeeper payment applies to;
• Notice is given to the employer in the ‘approved form’; and
• The Employer is not excluded from the JobKeeper subsidy.

Section 789GB of the Act makes it clear that the purpose of the JobKeeper allowance is to keep employees employed during the COVID-19 crisis. Therefore, your employer should tell you about it particularly if they are applying for the subsidy as it is a requirement they must meet. If they are not applying for JobKeeper, then they should tell you, especially if you work multiple jobs because you would need to establish which employer to get it from (as it is illegal to double-dip).

An important note is that an employer who has not applied for the JobKeeper subsidy does not have the protections given in the JobKeeper Rules and in the Act, such as being able to stand down employees with less legal risk and being able to change an employee’s responsibilities or their place of work. It is therefore beneficial for businesses to apply for the JobKeeper subsidy, and one would wonder why a business that may be suffering in the COVID-19 economic crisis would not be seeking the JobKeeper help if they are eligible.

2. If your Employer has applied for JobKeeper, do they have to tell you?

Yes. According to rule 6(4) of the JobKeeper Rules, the employer must notify an individual within seven (7) days of giving the Commissioner the employee’s details when they apply for the JobKeeper subsidy.

3. If my Employer is looking at COVID-19 related redundancies, can I raise the issue of the JobKeeper allowance?

If you are being made redundant, your employer must follow the law including discussing the redundancy with you. Section 389 of the Act states that a genuine redundancy is when:

• The employer no longer required the person’s job to be performed by anyone because of the operational requirements of the business; and
• The employer has complied with the relevant award/agreement regarding the requirement to consult about the redundancy.

During the consultation with your employer, you will be able to raise the JobKeeper allowance because it has been created to assist employees to keep their job. The employer will let you know if they are eligible for the payment or not, and consequently whether they will apply for it or have applied for it. If the employer has applied for the JobKeeper subsidy, they have to apply for all their employees and cannot choose who gets it and who does not.

It must be noted that there is no obligation on the employer to apply for the JobKeeper payment if they do not want to. Not applying for JobKeeper simply means the business can weather the COVID-19 economic crisis without government intervention.

If your employer is not applying for JobKeeper, section 389(2) of the Act makes it clear that the employer must consider whether it is reasonable to redeploy you to another role in the business or an associated business. If the employer fails to do so, they will be breaching the law. It would be worth in consultation to discuss this option because the availability of the JobKeeper subsidy would be taken into consideration if the employee is dismissed and the Fair Work Commission looks at whether the dismissal was harsh, unjust or unreasonable in section 389 of the Act. Make clear what you want and explore all the options, and make sure to document these discussions in writing.

4. If I am on the JobKeeper allowance, what rights do I have?

The JobKeeper payments do not change the protections you have against unfair dismissal as well as any adverse action claim about your workplace rights. The proposed section 789GY of the Act also gives further workplace rights that are protected, including:

• the benefit that an employee should be paid in accordance with the JobKeeper rules;
• agreeing, or not agreeing, to perform duties on different days or at different times;
• agreeing, or not agreeing, to take paid annual leave after a request by the employer;
• agreeing, or not agreeing, to take paid annual leave on request by the employer; and
• making a request if stood down for secondary employment, training or professional development.

The employer can request an employee to make an agreement regarding:

• Requesting the employee to take annual leave;
• Taking annual leave at half pay; and
• Varying the hours and days of work.

It is important to note that your contractual hours remain in effect until there is an agreement to alter it. The employer cannot take unilateral steps at changing your hours or days of work without an agreement with you. This has been a common tactic we have witnessed during this pandemic.

Whilst there are many protections and any substantive changes must be made by agreement between you and your employer, the employer does have the following powers if they are under the JobKeeper scheme:

• To take the stand down power pursuant to the requirements of section 789GDC of the Act;
• Directions to change duties in section 789GE of the Act; and
• Direction to change the place of work in section 789GF of the Act.

In essence these powers give the employer the ability to give you a stand down order where necessary, however you still must be paid appropriately. The power to change duties allows the employer to provide alternative duties to the employee regardless of the contract, in an attempt to prevent standing you down. The third power allows the employer to change your place of work.

Overall if you are on the JobKeeper allowance, your workplace rights are enshrined in the JobKeeper Rules and the Act, which should prevent any unconscionable conduct by the employer. If you are being forced to accept new hours or your hours are being reduced without consent, we suggest that you talk to us about it.

5. What can I do if my employer has made me redundant/dismissed me due to COVID-19 and they do not do anything about JobKeeper?

If you have been made redundant or dismissed due to COVID-19 and JobKeeper did not make part of the consultations with you about the redundancy, then you may be able to make an unfair dismissal application or an adverse action claim against the employer. Whether you have a potential case must be analysed on a case by case basis, and that is why getting legal advice is important.

Please note that there is a 21 day timeframe in which you must make an application in the Fair Work Commission. There are some exceptions to this timeframe, however if possible, seek advice within that timeframe.

We can help you

During the current COVID-19 economic crisis, keeping your job is more important than ever and we are happy to help you and the community get through this. We are experts in employment law and have a firm grasp of the JobKeeper legislation and the current economic and legal landscape, and will be able to give you an understanding of where you can go, what you can do, and whether you have a potential case.

This article is legal information and should not be seen as legal advice. Please consult with a lawyer should your require advice.