ABC NEWS

JobKeeper explained: What your boss can and cannot ask you to do

ABC NEWS logo ABC NEWS 24/05/2020 06:56:10 By Kate Ainsworth
a man standing on top of a wooden table: Your hours and duties can be changed with conditions, if you are getting the JobKeeper allowance. (ABC News: Hugh Sando) © Provided by ABC HealthYour hours and duties can be changed with conditions, if you are getting the JobKeeper allowance. (ABC News: Hugh Sando)

It's been less than two months since the Federal Government announced its $70 billion JobKeeper package for Australians who have lost their jobs or been forced out of work due to the coronavirus pandemic.

Eligible employees began to receive the payment from the start of this month, backdated to 30 March when the scheme was first announced.

However some businesses have come under fire for asking their employees to work so they can "earn" the payment.

That's raised questions about whether employers can make their employees work or perform other duties to receive the JobKeeper payment - so the ABC has spoken to the experts to find out.

What is the JobKeeper payment?

JobKeeper is part of the Federal Government's $320 billion economic support package to subsidise wages for businesses impacted by the coronavirus pandemic.

It was designed to help employers pay their employees during the coronavirus pandemic for up to six months, with businesses claiming a reimbursement from the Federal Government through the Australian Tax Office.

Eligible businesses must first apply for the scheme before nominating their employees to receive a fortnightly payment of $1,500 before tax.

The Federal Government estimates that some 3.5 million Australian workers will benefit from the payment, and more than 910,000 businesses have applied for the scheme to date.

Do I have to work to earn the JobKeeper payment from my boss?

"Technically under JobKeeper, it's not lawful to make an employee earn the JobKeeper allowance," said Zana Bytheway, executive director at employment legal rights service JobWatch.

Ms Bytheway said JobKeeper was meant to help businesses which had seen a downturn in business because of the coronavirus pay their employees.

"Say you work two days a week and have been stood down as a consequence of coronavirus, therefore you are home for that period of time and you are an eligible employee to receive a JobKeeper allowance," Ms Bytheway explained.

"The employer is required to pass on the full benefit of that $1,500 to you even though your income would have been $1,000 per fortnight."

But JobKeeper isn't only available for those who are now suddenly without work due to coronavirus.

"You're also able to receive JobKeeper if you are working and you have got the capacity to work," Ms Bytheway added.

Can my employer change my hours?

It depends on the type of change.

Your hours can be reduced temporarily as part of the "JobKeeper enabling stand down directions" made by your employer, which is part of the Fair Work Act and allows employers to reduce the number of days or hours an employee usually works.

The Fair Work Ombudsman said an eligible employee could be given the direction if they were unable to be usefully employed for their normal working days or hours due to the pandemic or measures taken by the Government to slow the spread of the virus.

But the direction does not allow for employers to increase the number of hours their employees work.

"They [employees] can't be forced or coerced to work more than they usually would," Jannette Armstrong, Tasmanian secretary of the United Workers Union, said.

Employers also can't ask their employees to work additional hours to mimic the number they would have to work to typically receive $1,500 a fortnight. The Fair Work Ombudsman says that's "not likely to be reasonable".

But that is not to say working more hours is out of the question while receiving JobKeeper payments.

Employers can ask employees if they want to work more hours, but Fair Work says any increase "needs to be reasonable".

Whether employees choose to work the extra hours offered though is up to the employee - and they can refuse if it isn't reasonable.

"There's a whole host of reasons why it might not be reasonable or realistic for a person's hours to be increased," Ms Armstrong said.

"A lot of people are in these new situations, where they're having to homeschool and having to care for other people who might have been at school or childcare and now can't because of the shutdown and isolation."

Could the type of work I do change?

Similar to the hours you work, the duties you perform at work can also be changed.

Ms Bytheway said in order for that to happen, certain conditions needed to be met.

"You have to consider safety, you have to consider the skills and competencies of the person in order to do that and, of course, if there are licences and qualifications involved, that is also a consideration," she said.

Fair Work said the direction also had to be reasonable, otherwise it did not apply to the employee.

The duties must also be related to the operation of the business they work at, meaning odd jobs likely won't fit the bill.

Some duties can also attract a higher base pay rate, depending on an award or enterprise agreement. If that's the case, Fair Work says the employee needs to be paid at the higher rate.

By the same token, employers cannot reduce an employee's rate if the duties they're now performing typically attract a lower base pay rate than what the employee usually receives.

Employers are also unable to change the duties of employees immediately.

Fair Work said employers needed to notify employees about any change in usual duties at least three days before the change was made through the JobKeeper enabling direction, consult with employees about the direction and keep a written record of it, and give the employee the agreed direction in writing.

What should I do if I think my employer isn't following the rules?

Ms Armstrong encouraged employees to raise the matter with their employer directly if they were comfortable about that.

"But I would absolutely recommend that they get some support and some advice about their rights and entitlements before doing so," she said.

Ms Bytheway said it could also potentially be a JobKeeper dispute, and would be considered as a matter for the Fair Work Commission.

"They can then arbitrate, mediate or conciliate the disputes and essentially can make an order in relation to the direction," she said.

A Fair Work spokesperson said anyone with an urgent enquiry about their workplace obligations could contact the Fair Work Ombudsman on 13 13 94 or through the website.

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