(This article is prepared by Barrister Jason Raftos for our eNewsletter dated 20 April 2020. The opinion expressed are those of the author and does not necessarily represent those of the Chamber or its council members. Fill in the form at the bottom of our main webpage to subscribe for future eNewsletter)
Recent Employment Law Changes
The State and Federal Governments have introduced some employment law measures in response to the COVID-19 Pandemic. The following is a brief summary of those key changes.
JobKeeper Wage Subsidy
The JobKeeper wage subsidy is a $1,500 fortnightly payment to subsidise wages of eligible employees. Employers must have a revenue reduction of 30% to access the subsidy (or 50% for businesses with a turnover of $1bn or more). Employers can register for it with the Australian Taxation Office.
Not all employers are eligible. For such employers there maybe other options under existing laws.
Changes to Fair Work Act
For employers that are companies or otherwise subject to the Fair Work Act and have accessed JobKeeper there are new laws that may allow an employer to:
(a) stand down an employee without pay (or on partial pay) for any time they cannot be usefully employed; and
(b) require an employee to change their duties, where they work and when they work.
JobKeeper Enabling Stand Down Directions
The new laws allow for “JobKeeper enabling stand down directions” which may enable an employer (in writing):
(a) to direct an employee to not work certain days;
(b) reduce hours of work; and
(c) not pay an employee for any period that work is not performed.
However, employers will have to meet the “Minimum Payment Guarantee” and the “Hourly Rate of Pay Guarantee”.
Minimum Payment Guarantee
Under the Minimum Payment Guarantee an employer must ensure that an employee’s fortnightly pay is not less than the greater of the following:
(a) the amount of JobKeeper payment payable to the employer for the employee for the fortnight; or
(b) the amounts payable to the employee in relation to the performance of work during the fortnight.
Hourly Rate of Pay Guarantee
The employer must ensure that an employee’s hourly base rate of pay is not less than the rate that usually applies.
Other Key Issues
It is important to note:
(a) the new laws override any modern award, enterprise agreement or employment contract.
(b) employers cannot unreasonably refuse requests from stood down employees to work a second job;
(c) the changes are temporary and will be subject to a review in July 2020; and
(d) employers must act reasonably, consult with affected employees and only issue such directions where they are necessary to maintain the employee’s job.
Changes to Modern Awards
There have also been changes to most (but not all) modern awards allowing two weeks unpaid ‘pandemic leave’ and annual leave on half-pay.
Sole traders and partnerships
If you operate your business as a sole trader or through a partnership or a trust you are generally in the State system and the WAIRC’s COVID 19 General Order will apply. This allows for employees to take unpaid pandemic leave, annual leave on half pay or annual leave in advance.
Jason Raftos is a Barrister who practises primarily in the areas of employment law, industrial law, discrimination, migration and safety.
M: 0417 007 821
A: Level 3, 267 St Georges Terrace Perth WA 6000