With many people’s livelihood at stake and the economy hanging in the balance, governments and decision-making bodies have been making a number of quick fixes and tweaks to their legislation to increase the ability of employers to keep their organisations going and people in their jobs, albeit in changed ways.
The Fair Work Act and the JobKeeper Scheme
The Fair Work Act has been amended to provide significantly more flexibility in changing employment conditions but only in relation to employers who are participating in the JobKeeper scheme. The changes give employers greater flexibility in relation to:
- giving directions to reduce hours and days of work, including stand down provisions
- giving directions to change usual duties
- giving directions to change work location (including working from home)
- making agreements to work different days and times
- making agreements to take annual leave.
Further information is available on the Fair Work Ombudsman’s website Fair Work Ombudsman's website.
While the employee is subject to the Fair Work Act JobKeeper enabling provisions, the employee’s usual terms and conditions of employment (for example under a modern award, enterprise agreement or employment contract) continue to apply, except where the JobKeeper enabling direction or agreement is different to the employee's usual terms and conditions.
For Western Australian organisations that are participating in the JobKeeper scheme but do not come under the Fair Work Act, the WA Industrial Relations Commission issued the COVID-19 JobKeeper General Order on 15 May 2020 which mirrors the Fair Work Act JobKeeper provisions. The General Order applies until 28 September 2020, unless extended.
Changes for Staff Covered by (Most) Awards
The following changes apply only to employees who are covered by 99 modern awards from 8 April 2020 (the excluded awards relate mostly to mining and construction). At this point these changes do not appear to apply to staff who are covered by enterprise agreements.
Unpaid Pandemic Leave
There is information available about this on the Australian Government Fair Work Ombudsman website.
Employees who are prevented from working:
- as a result of being required to self-isolate by government or medical authorities, or acting on the advice of a medical practitioner, or
- by measures taken by government or medical authorities in response to the pandemic (for example, an enforceable government direction restricting non-essential businesses),
can access up to two weeks unpaid pandemic leave. The leave does not have to be accrued, the full two weeks is available immediately and in full (not pro-rated) to full-time, part-time, and casual employees. The leave needs to start before 30 June 2020 but can finish after that date. Employees do not have to use all of their paid leave before accessing unpaid pandemic leave. Notice and evidence provisions apply.
Annual Leave at Half Pay
Employees can take their annual leave at half pay, and double their time off work, if the employer agrees. This means that an employee gets one week’s annual leave payment (including annual leave loading if applicable) for every two weeks of annual leave they take.
The agreement must be in writing and a record must be maintained by the employer. The leave needs to start before 30 June 2020 but can finish after that date.
Staff Covered by the Clerks - Private Sector Award
In addition to the changes to the awards listed above, the Fair Work Commission made temporary changes to the Clerks - Private Sector Award that apply from an employee’s first full pay period on or after 28 March until 30 June 2020. This provides flexibility during the COVID-19 pandemic in amending:
- employees’ classifications and duties
- the minimum engagement/pay for part-time and casual employees
- the span of hours changes while working at home
- full-time and part-time employees' hours of work
- directions to take annual leave.
Long Service Leave-New South Wales
New South Wales, which has one of the more rigid long service leave regimes, passed temporary amendments applying from 25 March to improve flexibility during the period of the COVID-19 pandemic.
In NSW the temporary changes to long service leave allow:
- if the employee and the employer agree, the employer to give less than one month’s notice to an employee to take the long service leave if the employee agrees
- if the employer and the employee agree, the employee to take a period of less than one month’s long service leave in advance
- long service leave to continue to accrue if an employee is stood down without pay between 11 March and 12 September this year as a direct or indirect result of the COVID-19 pandemic.
The relevant Acts are the:
- COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) commenced 25 March 2020
- COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Act 2020 No 5 (NSW) commenced 14 May 2020.
Employees Covered by Enterprise Agreements (EA)
Employers with an enterprise agreement (EA) are still bound by the terms of the EA notwithstanding the significant changes occurring in the work environment. Any changes to the terms of the EA require a variation of the EA by the Fair Work Commission, following a procedure very similar to making a new EA including voting by employees and passing the “better off overall test” (BOOT) before it is approved. The Commission has the power to waive the BOOT test where it is in the public interest to do so. The Commission has made changes to reduce the time and procedures for employees to vote on changes to the EA, and it is expediting progress once the amended draft EA is submitted to it for ratification.
Superannuation and Early Release
Employees whose working hours were reduced by 20 per cent or more (or made redundant) as a result of the COVID-19 pandemic can access some of their superannuation early, in a scheme administered by the: Australian Taxation Office. Individuals will not need to pay tax on amounts released and will not need to include it in their tax return.
Workers and the COVIDSafe ‘App’
While all governments have been fiercely encouraging Australians to upload and use the COVIDSafe ‘App’, it is unlawful for an employer (or anyone else) to coerce an employee (or visitor etc) to upload and use the App. It is also unlawful to take any adverse action against a person who chooses not to upload and use the App. This was initially a government Determination, which subsequently became law under the Privacy Amendment (Public Health Contact Information) Act 2020 (Cth), with penalties for breaches.
Stay Alert – The Changes Keep on Coming
All governments and the Fair Work Commission are very well aware of the economic pressures on all employers and the need to ensure that the economy survives through the COVID-19 disruptions. As the restrictions are in the process of being lifted and businesses move to the ‘new normal’there are very likely to be further changes to facilitate the recovery. The Fair Work Ombudsman’s Coronavirus and Australian Workplace Laws website provides almost daily updates with guidance to employers and employees as to the application of the changes to awards and laws as they evolve.
On a more sustained note, the Prime Minister has called for an overhaul of the industrial relations system by way of an accord between unions, employers and government, and meetings to this end have already commenced between the parties.
It is very important for all employers to stay abreast of any changes to laws, regulations, directives or awards, as no one would benefit from the distractions of being hauled before a court or tribunal for failing to comply.