State system COVID-19 JobKeeper provisions

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Temporary state system JobKeeper provisions have been introduced for private sector state system employers and employees who are participating in the Commonwealth JobKeeper scheme.

These provisions were implemented by the COVID-19 JobKeeper General Order issued by the Western Australian Industrial Relations Commission on 15 May 2020. The provisions are effective from 15 May 2020 and apply until 28 September 2020, unless extended.

The state system JobKeeper provisions only apply to employers who have qualified for the JobKeeper scheme and their eligible employees, and allow employers to give certain directions to employees and make agreements with employees to change their days and times of work. Employers must comply with a number of specific requirements. 

This information is a summary of the COVID-19 JobKeeper General Order and does not include all obligations required by the General Order. It is important that you also refer to the full COVID-19 JobKeeper General Order that is available on the WA Industrial Relations Commission website.

Information on the Commonwealth JobKeeper scheme is available from the Australian Taxation Office.

Employer payment obligations

The state system JobKeeper provisions only apply to employers who have qualified for the JobKeeper scheme and their eligible employees.   

If a JobKeeper payment is payable to an employer for an employee for a fortnight, the employer must ensure that the total amount payable to the employee in respect of the fortnight is not less than the higher of the following:

  • the amount of JobKeeper payment payable to the employer for the employee for the fortnight; or
  • the amounts payable to the employee in relation to the performance of work during the fortnight (including leave payments, penalty rates, loadings and allowances).

If a JobKeeper enabling direction about stand down, including reductions to hours of work given by an employer applies to an employee, the employer must ensure that the employee’s base rate of pay (worked out on an hourly basis) is not less than the base rate of pay (worked out on an hourly basis) that would have been applicable to the employee if the direction had not been given to the employee.

If a JobKeeper enabling direction about changes to duties of work given by an employer applies to an employee, the employer must ensure that the employee’s base rate of pay (worked out on an hourly basis) is not less than the greater of the following:

  • the base rate of pay (worked out on an hourly basis) that would have been applicable to the employee if the direction had not been given to the employee; or
  • the base rate of pay (worked out on an hourly basis) that is applicable to the duties the employee is performing.

Base rate of pay means the amount payable to an employee for their ordinary hours of work, but not including any of the following:

  • incentive-based payments and bonuses;
  • loadings;
  • monetary allowances;
  • overtime or penalty rates; and
  • any other separately identifiable amounts.

JobKeeper enabling directions in relation to stand down and hours, duties and location of work

The state system JobKeeper provisions only apply to employers who have qualified for the JobKeeper scheme and their eligible employees.  

Under the state system JobKeeper provisions an employer is able to give a ‘JobKeeper enabling direction’ to an employee to temporarily:

  • stand down an employee (including by reducing their hours or days of work);
  • change an employee’s usual duties; and
  • change an employee’s location of work.

Qualifying employers can only give JobKeeper enabling directions for the time that they are claiming the JobKeeper payment for an eligible employee.

JobKeeper enabling directions are subject to the employer payment obligations and the rules and consultation requirements. The requirements include that employers need to:

  • notify the employee in writing at least 3 days before giving the JobKeeper enabling stand down direction (unless the employee genuinely agrees to a shorter timeframe);
  • consult with the employee (or their representative) about the direction and keep a written record of the consultation; and
  • give the employee the direction in writing. 

A qualifying employer can give an eligible employee a JobKeeper enabling direction from 15 May 2020 (when the JobKeeper provisions in the JobKeeper General Order started). A JobKeeper enabling direction remains in effect until revoked or replaced by the employer, or until the General Order JobKeeper provisions cease completely on 28 September 2020 (unless extended).

The different types of JobKeeper enabling direction are discussed in detail below.

JobKeeper enabling directions about stand down, including reductions to hours of work

An employer may give an employee a direction (known as a JobKeeper enabling stand down direction) to:

  • not work on a day or days on which the employee would usually work;
  • work for a lesser period than the period which the employee would ordinarily work on a particular day or days; or
  • work a reduced number of hours (compared with the employee’s ordinary hours of work). The reduced number of hours may be nil;

during a particular period (known as the JobKeeper enabling stand down period).

A JobKeeper enabling stand down direction is subject to:

  • when the direction was given, the employer qualified for the JobKeeper scheme;
  • the employee cannot be usefully employed for the employee’s normal days or hours during the JobKeeper enabling stand down period because of changes to business attributable to:
    • the COVID-19 pandemic; or
    • government initiatives to slow the transmission of COVID-19;
  • the implementation of the JobKeeper enabling stand down direction is safe, having regard to (without limitation) the nature and spread of COVID-19; and
  • the employer becomes entitled to one or more JobKeeper payments for the employee:
    • for a period that consists of or includes the JobKeeper enabling stand down period; or
    • for periods that, when considered together, consist of or include the JobKeeper enabling stand down period.

If the JobKeeper enabling stand down direction applies to the employee, then, during the JobKeeper enabling stand down period, the employer:

  • is still required to comply with the employer payment obligations under the JobKeeper General Order;
  • but is not otherwise required to make payments to the employee in respect of the JobKeeper enabling stand down period.

The JobKeeper enabling stand down direction does not apply to the employee during a period when the employee:

  • is taking paid or unpaid leave that is authorised by the employer; or
  • is otherwise authorised to be absent from the employee’s employment.

An employee may take paid or unpaid leave (for example, annual leave) during all or part of a period during which the JobKeeper enabling stand down direction would otherwise apply to the employee.

An employee subject to a JobKeeper enabling stand down direction may request to engage in reasonable secondary employment, training and professional development. An employer must consider these requests and not unreasonably refuse.

A JobKeeper enabling direction given by an employer to an employee does not apply to the employee if the direction is unreasonable in all of the circumstances. A direction may be unreasonable depending on the impact of the direction on any caring responsibilities the employee may have.

JobKeeper enabling directions are subject to the employer payment obligations and the rules and consultation requirements.

JobKeeper enabling directions about changes to duties of work

An employer may direct an employee to perform any duties during a period (the relevant period) that are within the employee’s skill and competency.

The direction is subject to:

  • when the direction was given, the employer qualified for the JobKeeper scheme; and
  • those duties are safe, having regard to (without limitation) the nature and spread of COVID-19; and
  • in a case where the employee is required to have a licence or qualification in order to perform those duties, the employee had the licence or qualification; and
  • those duties are reasonably within the scope of the employer’s business operations; and
  • the employer becomes entitled to one or more JobKeeper payments for the employee:
    • for a period that consists of or includes the relevant period; or
    • for periods that, when considered together, consist of or include the relevant period.

A JobKeeper enabling direction in relation to duties of work has no effect unless the employer has information that leads them to reasonably believe that the direction is necessary to continue the employment of one or more of their employees. 

A JobKeeper enabling direction given by an employer to an employee does not apply to the employee if the direction is unreasonable in all of the circumstances. A direction may be unreasonable depending on the impact of the direction on any caring responsibilities the employee may have.

JobKeeper enabling directions are subject to the employer payment obligations and the rules and consultation requirements

JobKeeper enabling directions about location of work 

An employer may direct an employee to perform duties at a place that is different from the employee’s normal place of work, including the employee’s home.

The direction is subject to:

  • when the direction was given, the employer qualified for the JobKeeper scheme;
  • the place is suitable for the employee’s duties;
  • if the place is not the employee’s home, the place does not require the employee to travel a distance that is unreasonable in all the circumstances, including the circumstances surrounding the COVID-19 pandemic;
  • the performance of the employee’s duties at the place is:
    • safe, having regard to (without limitation) the nature and spread of COVID-19; and
    • reasonably within the scope of the employer’s business operations; and
  • the employer becomes entitled to one or more JobKeeper payments for the employee:
    • for a period that consists of or includes the relevant period; or
    • for periods that, when considered together, consist of or include the relevant period.

A JobKeeper enabling direction in relation to location of work has no effect unless the employer has information that leads them to reasonably believe that the direction is necessary to continue the employment of one or more of their employees.

A JobKeeper enabling direction given by an employer to an employee does not apply to the employee if the direction is unreasonable in all of the circumstances. A direction may be unreasonable depending on the impact of the direction on any caring responsibilities the employee may have.

JobKeeper enabling directions are subject to the employer payment obligations and the rules and consultation requirements.

Rules and consultation requirements for JobKeeper enabling directions

The JobKeeper General Order sets out a number of rules and consultation requirements in relation to JobKeeper enabling directions.

Misuse of JobKeeper enabling directions

An employer is prohibited from purporting to give a JobKeeper enabling direction if the direction is not authorised by the JobKeeper General Order, and the employer knows, or ought to have reasonably known, the direction is not authorised.

Reasonableness

A JobKeeper enabling direction given by an employer to an employee does not apply to the employee if the direction is unreasonable in all of the circumstances. A direction may be unreasonable depending on the impact of the direction on any caring responsibilities the employee may have.

Continuing the employment of employees

A JobKeeper enabling direction in relation to duties of work or location of work has no effect unless the employer has information that leads them to reasonably believe that the direction is necessary to continue the employment of one or more of their employees.

Consultation requirements

A JobKeeper enabling direction given by an employer to an employee does not apply to the employee unless:

  • the employer gave the employee written notice of the employer’s intention to give the direction;
  • the employer did so:
    • at least 3 days before the direction was given; or
    • if the employee genuinely agreed to a lesser notice period – during that lesser notice period; and
  • before giving the direction, the employer consulted the employee (or a representative of the employee) about the direction.

If an employer has already given notice and consulted with an employee, the employer can give a JobKeeper enabling direction without having to give notice and consult again if:

  • the employer previously complied with the notice and consultation requirements in relation to a proposal to give the employee another JobKeeper enabling direction of the same type; and
  • the employee or their representative expressed views about the proposal to the employer; and
  • the employer considered those views in deciding to give the direction.

An employer must keep a written record of the consultation.

Form of direction (must be in writing)

A JobKeeper enabling direction must be in writing.

Duration

A JobKeeper enabling direction given by an employer to an employee continues in effect until:

  • it is withdrawn or revoked by the employer; or
  • it is replaced by a new JobKeeper enabling direction.

All JobKeeper enabling directions cease to have effect at the start of 28 September 2020.

Employee compliance

If a JobKeeper enabling direction given by an employer applies to an employee of the employer, the employee must comply with the direction.

JobKeeper enabling directions - service and leave 

Service

Under the state system JobKeeper provisions, for the purposes of the Minimum Conditions of Employment Act 1993 and any applicable industrial instrument (that is, a WA award; an industrial agreement or employer-employee agreement; a contract of employment), if an employee is subject to a JobKeeper enabling direction in relation to stand down, hours, duty or location of work during a period, that period counts as service.

The situation may be different for long service leave entitlements, depending on an employee’s employment arrangements. Please contact Wageline on 1300 655 266 for more information.

Redundancy and termination

If a JobKeeper enabling stand down direction applies to an employee (including a direction which reduces an employee’s hours of work), the following are to be calculated based on their usual hours and days of work, as if the direction had not been given:

  • redundancy pay;
  • payment in lieu of notice of termination.

Leave accrual

Under the state system JobKeeper provisions, for most types of leave, if a JobKeeper enabling stand down direction applies to an employee (including a direction which reduces an employee’s hours of work), the employee accrues leave entitlements based on their usual hours and days of work, as if the direction had not been given.

The situation may be different for long service leave accrual, depending on an employee’s employment arrangements. Please contact Wageline on 1300 655 266 for more information.

Employer and employee can agree to employee taking paid leave 

An employer and employee may agree that an employee will use paid leave entitlements during some or all of the period the employer is receiving JobKeeper payments. If an eligible employee has been given a JobKeeper enabling stand down direction to work less hours than usual (or no hours), but wants to be paid their normal pay, they can agree with their employer to use their paid leave entitlements to top up the amount they are being paid.  If that happens, for the time they are on paid leave, they are not on a JobKeeper enabling stand down.

In any relevant fortnight, the employee must be paid the greater of either the amount of the JobKeeper payment or their usual pay for work performed, including leave payments.

Can an employee be directed to take leave whilst receiving JobKeeper payments?

There are no provisions in the COVID-19 JobKeeper General Order which enable an employer to direct an employee to take leave while receiving JobKeeper payments.

Annual leave must generally be taken by agreement between an employer and employee. An employer cannot direct an employee as to when they must take a period of annual leave.

An employer also cannot direct an employee who is covered by the Long Service Leave Act to take long service leave at a particular time. Some employees are entitled to long service leave under an award, industrial agreement, other legislation or an agreement with their employer. Employers must comply with those provisions, including in relation to whether they are or are not able to direct an employee to take a period of long service leave at a particular time.

How does JobKeeper affect sick and carer’s leave?

The JobKeeper scheme does not affect an eligible employee’s entitlement to accrue or take paid sick or carer’s leave.

An employee who has been given a JobKeeper enabling stand down direction to work less or no hours, is still entitled to be paid sick and carer’s leave for a period they are sick or caring for a member of their family or household. Notice and evidence rules still apply. The employer must include the employee’s normal pay for the period of sick or carer’s leave when calculating the employee’s pay for a fortnight.  In any relevant fortnight, the employee must be paid the greater of either the amount of the JobKeeper payment or their usual pay for work performed, including leave payments.

What if an employee takes unpaid leave while receiving JobKeeper?  

An eligible employee on authorised unpaid leave (including unpaid pandemic leave) must receive at least the amount of the JobKeeper payment from their qualifying employer for the period they are on unpaid leave, if they meet the eligibility conditions for the JobKeeper scheme.

Are employees subject to a JobKeeper enabling stand down direction entitled to pay for a public holiday?

Whether or not an employee is entitled to be paid for a public holiday on which they do not work, during a period of JobKeeper enabled stand down depends on their employment arrangements.

If an employee is entitled to paid public holidays under a WA award or contract of employment, they are entitled to be paid their usual ordinary hours of work for a public holiday falling during the stand down period, and this needs to be taken into account when calculating their pay for the fortnight. This is because a JobKeeper enabling stand down direction does not apply when the employee is authorised to be absent from work.

The situation is different for award free employees, as the entitlement under the Minimum Conditions of Employment Act 1993 is to be paid as normal on a public holiday if they are not required to work on a day solely because that day is a public holiday. If a JobKeeper enabling stand down direction has been issued to such an employee prior to a public holiday, then the employee is not entitled to be paid for any absence on the public holiday (because they are not absent from work solely because that day is a public holiday).

Requests for an employee to change days and times of work

The state system JobKeeper provisions allow a qualifying employer to request to make an agreement with an eligible employee to perform duties on different days or at different times, compared with the employee’s ordinary days or times of work.

An employer may request to make an agreement with an employee to perform duties during a period:

  • on different days; or
  • at different times;

compared with the employee’s ordinary days or times of work.

When an employer gives the employee a request to make an agreement, the employee:

  • must consider the request; and
  • must not unreasonably refuse the request. 

The agreement is subject to:

  • when the agreement was made, the employer qualified for the JobKeeper scheme;
  • the performance of the employee’s duties on those days or at those times is:
    • safe, having regard to (without limitation) the nature and spread of COVID-19; and
    • reasonably within the scope of the employer’s business operations;
  • the agreement does not have the effect of reducing the employee’s number of hours of work (compared with the employee’s ordinary hours of work);
  • the agreement is in writing; and
  • the employer becomes entitled to one or more JobKeeper payments for the employee:
    • for a period that consists of or includes the relevant period; or
    • for periods that, when considered together, consist of or include the relevant period.

Disputes

Where there is a question, dispute or difficulty arising under the JobKeeper General Order, the employer and the employee (or their representatives) must confer among themselves and make reasonable attempts to resolve the matter.

If the employer and employee are unable to resolve the matter within 24 hours of the question, dispute or difficulty being raised, the employer or an organisation of which the employee is a member or is eligible to become a member, may apply to the Western Australian Industrial Relations Commission for conciliation and if required, arbitration.

If the employer and employee are unable to resolve the matter within 48 hours of the question, dispute or difficulty being raised and the matter has not been referred to the Western Australian Industrial Relations Commission:

  • the employee may:
  • request mediation under the Employment Dispute Resolution Act 2008 (WA), by lodging Form 1 – Request for Mediation with the Western Australian Industrial Relations Commission.  It should be noted that for mediation to occur under this arrangement, the employer must consent to the mediation.
  • notify the Registrar of the Western Australian Industrial Relations Commission that the employer has been or is, by some act, omission or circumstance, taking industrial action (as defined in s7(1) of the Act) against them for the purpose of compelling them to accept terms or conditions of employment contrary to the terms of this General Order, and ask the Registrar to refer the notification to the Commission.  The Commission will then consider whether to convene a conciliation conference.
  • make an application to the Industrial Magistrate’s Court for enforcement of the General Order, by lodging Form 1.1, 1.2 and 1.3; and
  • the employer or organisation, including registered industrial organisations such as a union, may apply to the Commission for conciliation and, if necessary, arbitration, under s 44 of the Industrial Relations Act 1979 (WA).

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