Fair Work Commission

See Fair Work Act ss.789GJD and 789GJF

Under s.789GJD, some legacy employers can ask an employee to make an agreement with the employer about performing their duties on different days or at different times compared with the employee’s ordinary days or times of work. To make a request under s.789GJD:

• the employer must have been entitled to a jobkeeper payment for the employee prior to 28 September 2020
• the employer must hold a 10% decline in turnover certificate that covers the employer for the designated quarter applicable at the time of making the request
• if the request is made before 28 September 2020, the employer must not be entitled to a jobkeeper payment for the employee for the fortnight beginning 28 September 2020,
• if the request is made on or after 28 September 2020, the employer must not be entitled to jobkeeper payments for the employee.

The employee:

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

The agreement is authorised if the employer meets the requirements in relation to entitlement to jobkeeper payments and the 10% decline in turnover certificate discussed above and:

• the relevant period of the agreement begins on or after 28 September 2020
• the agreement is in writing
• 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), and
• the agreement does not have the effect of requiring the employee to work less than 2 hours in a day.