Temporary provisions were added to the Fair Work Act (JobKeeper provisions) as part of the JobKeeper scheme. Employers may have been able to use these provisions if they were a:

• qualifying employer - employers who qualified for the JobKeeper scheme and were receiving JobKeeper payments for their employees
• legacy employer - employers who previously qualified for the JobKeeper scheme but no longer qualified, or chose not to participate, from 28 September 2020.

The JobKeeper provisions enabled qualifying employers in certain circumstances to make agreements with an eligible employee to change the employee’s days and times of work. They also allowed qualifying employers to issue directions to change duties or work location.

The JobKeeper provisions also enabled qualifying employers to give eligible employees a direction to reduce their hours or days of work (including to no hours) in certain circumstances.

A qualifying employer could make an agreement under the JobKeeper provisions from 9 April 2020 (when the JobKeeper provisions started). The last day the provisions applied was 28 March 2021.

Who could previously use these JobKeeper provisions

For a qualifying employer to have made an agreement about changing days or times of work under the JobKeeper provisions, they needed to:

• qualify for and enrol in the JobKeeper scheme
• be entitled to JobKeeper payments for the employee the agreement applies to
• be a national system employer in the Fair Work system.

Agreements about changing an employee’s work days or times

The JobKeeper provisions allowed a qualifying employer to agree with an eligible employee to:

• work on different days, or
• during different times.

Before making an agreement, a qualifying employer had to make sure that:

• it was safe (including considering the nature and spread of coronavirus)
• it was reasonably within scope of the employer’s business operations
• the employee’s usual work hours weren't reduced overall (this required a JobKeeper enabling stand down direction).

If a qualifying employer asked an employee to make an agreement to change their work days or times, the employee had to consider the request and couldn't unreasonably refuse it. This meant that the employee couldn't refuse the request just because it resulted in them working extra hours. Any agreement made had to be recorded in writing, such as in a letter or email.

Any agreements made under these JobKeeper provisions stopped applying after 28 March 2021. Employees' terms and conditions reverted back to what they were without the agreement in place. For example, under an award, enterprise agreement or employment contract.

Asking eligible employees to work more hours

A qualifying employer could ask an employee to work reasonable extra hours (in excess of their ordinary hours) while the employer was receiving JobKeeper payments for them.

When a qualifying employer asked an employee to work on different days or during different times, and this meant the employee would work extra hours, the employee needed to consider the request and couldn’t unreasonably refuse it. An employee could refuse if it wasn’t reasonable in the circumstances. For example, because the employee had caring responsibilities.

An employer could take disciplinary action against an employee who unreasonably refused the employer’s request to work extra hours. If an employer ended an employee’s employment, the employer needed to make sure they complied with the general protections and unfair dismissal obligations in the Fair Work Act.

A qualifying employer couldn’t force or try to force an employee to work unreasonable additional hours. They also couldn’t tell an employee whose employment terms and conditions were set by a workplace instrument (such as an award or enterprise agreement) that they had to work additional hours in order to get the amount of the JobKeeper payment.

Agreements made under the JobKeeper provisions overrode any inconsistent terms in an employment contract, award or enterprise agreement but didn’t change overtime or penalty rate entitlements that may have applied for any extra hours an employee worked.

References

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