The majority of the jobkeeper provisions of the Fair Work Act 2009 were repealed on 29 March 2021. The Fair Work Commission has limited power to deal with jobkeeper disputes on or after this date.

Attachment 5 sets out the jobkeeper provisions of the Fair Work Act that continue to apply on and after 29 March 2021.

Directions about duties & location of work

 

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Introduction

See Fair Work Act 2009 ss.789GE, 789GF, and 789GDB(3)

Sections 789GE, 789GF, 789GDB(3) of Part 6-4C were repealed on 29 March 2021.

A jobkeeper enabling direction cannot be given on or after 29 March 2021 and a jobkeeper enabling direction given before 29 March 2021 does not apply on or after that date.

See Attachment 5 for information about the jobkeeper provisions that apply on and after 29 March 2021.

Division 4 of Part 6-4C of the Fair Work Act authorises an employer who qualifies for the jobkeeper scheme to give a jobkeeper enabling direction to an employee about their duties of work or the location where their work is to be performed.

Duties of work

An employer that has qualified for the jobkeeper scheme can direct an employee to perform any duties during a period (the relevant period) that are within the employee’s skill and competency.

A direction about duties of work is authorised if:

  • the duties are safe, having regard to (without limitation) the nature and spread of COVID-19
  • where the employee was required to have a licence or qualification in order to perform those duties - the employee had the licence or qualification
  • the 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.

Payment while a direction in relation to duties of work applies

If a direction in relation to duties of work applies to an employee, the employer must ensure that the employee’s hourly base rate of pay is not less than the greater of the following:

  • the hourly base rate of pay that would have applied to the employee if the direction had not been given to the employee, or
  • the hourly base rate of pay that is applicable to the duties the employee is performing.

Example

The following example is taken from the Explanatory Memorandum to the Coronavirus Economic Response Package Omnibus (Measures No. 2) Bill 2020.

Ameisa operates a warehouse in NSW. The Storage Services and Wholesale Award 2010 applies to the employees of the warehouse, including Meera. As a storeworker grade 4, Meera generally acts in a leading hand capacity, coordinating the work of other storeworkers, performs liaison duties including with customers, and controlling inventory.

Ameisa’s business is affected by the Coronavirus pandemic and qualifies for the jobkeeper scheme. Given the downturn in Ameisa’s business operations, Meera is not required to perform her usual duties in respect of customer liaison. In order to keep Meera connected to employment during the pandemic, rather than reducing Meera’s hours, Ameisa gives Meera a jobkeeper enabling direction that changes Meera’s usual duties and enables her to be retain her regularly rostered hours, albeit in other duties.

Ameisa wants Meera to drive a forklift in the warehouse. Because the duties can be performed with appropriate social distancing and in a way that is safe with respect to the nature and spread of Coronavirus, reasonably within the scope of Ameisa’s business operations, and Meera holds a current high risk work licence to operate a forklift (class LO), Ameisa is able to give a jobkeeper enabling direction authorised by s 789GE to drive the forklift.

While Meera’s duties have been modified by the jobkeeper enabling direction, the other terms and conditions relating to her employment, such as the days and hours she works, are unchanged.

Related information

Location of work

An employer that has qualified for the jobkeeper payment can give an employee a direction to perform work during a period (the relevant period), at a different location to the employee’s normal place of work. This includes a direction that the employee must work from home.

A direction regarding the location of work is authorised if:

  • the employer qualified for the jobkeeper scheme when the direction was given
  • 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.

Updated time

Last updated

29 March 2021

 

 

 

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