Fair Work Commission

Introduction

See Fair Work Act ss.789GJB, and 789GJC

Division 5A of Part 6-4C of the Fair Work Act authorises legacy employers that hold a 10% decline in turnover certificate 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 is not entitled to jobkeeper payments for an employee, but was entitled to a jobkeeper payment for that employee prior to 28 September 2020, and that holds a 10% decline in turnover certificate, can direct the employee to perform any duties during a period beginning on or after 28 September 2020 (the relevant period) that are within the employee’s skill and competency.

A direction about duties of work is authorised if:

• the employer is not entitled to one or more jobkeeper payments for the relevant period, but was entitled to a jobkeeper payment for the employee prior to 28 September 2020
• 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
• at the time direction was given, the employer held a 10% decline in turnover certificate that covers the employer for the designated quarter applicable to that time.

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.

Location of work

An employer that is not entitled to jobkeeper payments for an employee, but was entitled to a jobkeeper payment for that employee prior to 28 September 2020, and that holds a 10% decline in turnover certificate, can give the employee a direction to perform work during a period beginning on or after 28 September 2020 (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:

• employer is not entitled to one or more jobkeeper payments for the relevant period, but was entitled to a jobkeeper payment for the employee prior to 28 September 2020
• 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
• at the time the direction is given, the employer held a 10% decline in turnover certificate that covers the employer for the designated quarter applicable to that time.