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 received 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 allowed qualifying employers, in certain circumstances, to:

• give a direction to change an employee’s usual duties
• give a direction to change an employee’s location of work.

They also allowed qualifying employers to agree with an employee to change their days and times of work.

A qualifying employer could give an eligible employee a JobKeeper enabling direction or 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 the JobKeeper provisions

For a qualifying employer to give a direction for an employee to change duties or work location under the JobKeeper provisions, they needed to:

• have qualified for and enrolled in the JobKeeper scheme
• have been entitled to JobKeeper payments for the employee the direction or agreement applied to
• be a national system employer in the Fair Work system.

Direction to change usual duties

Under the JobKeeper provisions, a qualifying employer could give an eligible employee a direction to perform different duties.

To do this, the qualifying employer needed to make sure that:

• the duties were within the employee’s skill and competency
• the duties were safe (including considering the nature and spread of coronavirus)
• the employee had any required licences or qualifications to perform the duties
• the duties were reasonably within the scope of the employer’s business operations
• the direction was reasonable.

Employers needed to follow notice and consultation requirements when giving a direction.

The direction didn’t apply to the employee unless the employer reasonably believed that the direction was necessary to continue the employment of one or more employees. To determine whether it was necessary, it didn’t matter that the employer could have given a similar direction to another employee.

The qualifying employer needed to make sure that the direction was reasonable. This included taking into account all of the circumstances, including:

• any caring responsibilities that the employee had
• if the direction applied to a category of employees, making sure it didn’t have an unfair effect on some employees in that category compared to others.

If the direction was unreasonable, it didn’t apply to an employee.

The qualifying employer could only direct an employee to do work that applied to the operation of the business they were employed at. For example, an employer couldn’t direct an employee to do odd jobs unrelated to the operation of the business.

An employee’s pay rate couldn’t be reduced while a direction to change usual duties was in place. If the temporary new duties attracted a higher pay rate, the employee needed to be paid the higher rate. For example, under any applicable award or agreement.

If an employer gave an employee a JobKeeper enabling direction, the employee had to comply.

Steps to give a direction to change usual duties

Qualifying employers needed to:

1. Notify the employee in writing at least 3 days before giving the JobKeeper enabling direction. This applied unless the employee genuinely agreed to a shorter time.
2. Consult with the employee (or their representative) about the direction and keep a written record of the consultation.
3. Give the employee the direction in writing.

When a direction ended

A direction applied until the first of the following:

• the employer stopped being a qualifying employer
• the employee who was subject to the direction stopped being an eligible employee
• it was withdrawn, revoked or replaced (including by the Fair Work Commission), or
• 29 March 2021.

When a direction ended, an employee’s terms and conditions of employment reverted back to what they were before the direction was in place.

Directions to change location of work

Under the JobKeeper provisions, a qualifying employer could give an eligible employee a JobKeeper enabling direction to perform duties somewhere different from the employee's normal workplace. This could include the employee's home.

Qualifying employers needed to make sure that:

• the new location was suitable for the employee’s duties
• the employee wasn’t required to travel an unreasonable distance in all the circumstances (including considering the nature and spread of coronavirus)
• it was safe for the employee to perform  duties at the new location (including considering the nature and spread of coronavirus)
• the employee performing their duties at the new location was reasonably within the scope of the employer’s business operations
• the direction was reasonable.

Employers needed to follow notice and consultation requirements when giving a direction.

The direction didn't apply to the employee unless the employer reasonably believed that the direction about location of work was necessary to continue the employment of one or more employees. To determine whether it was necessary, it didn’t matter that the employer could have given a similar direction to another employee.

A qualifying employer needed to make sure that the direction was reasonable. This included taking into account all of the employee’s circumstances, including:

• any caring responsibilities the employee had
• if the direction applied to a category of employees, making sure it didn’t have an unfair effect on some employees in that category compared to others.

If a direction was unreasonable, it didn’t apply to an employee.

If a qualifying employer gave an employee a JobKeeper enabling direction, the employee had to comply with it.

How a direction to change location of work was given

Qualifying employers needed to:

1. Notify the employee in writing at least 3 days before giving the JobKeeper enabling direction. This applied unless the employee genuinely agrees to a shorter time.
2. Consult with the employee (or their representative) about the direction and keep a written record of the consultation.
3. Give the employee the direction in writing.

When a direction ended

A direction applied until the first of the following:

• the employer stopped being a qualifying employer
• the employee who was subject to the direction stopped being an eligible employee
• it was withdrawn, revoked or replaced (including by the Fair Work Commission), or
• 29 March 2021.

When a direction ended, an employee’s terms and conditions of employment reverted back to what they were before the direction was in place.

References

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