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When a JobKeeper enabling direction will have no effect
Table of contents
Introduction
See Fair Work Act 2009 ss.789GDC, 789GE, 789GF and Division 6 of Part 6-4C
Jobkeeper enabling directions cannot be made retrospectively.[1] This means that directions given before Part 6-4C commenced operation on 9 April 2020 are not authorised by provisions in that Part. Depending on the circumstances, such directions given before 9 April 2020 may still have been authorised, for example under a fair work instrument or a contract of employment.
Jobkeeper enabling directions have no effect if they are unreasonable or the employee was not consulted.
Jobkeeper enabling directions about duties of work and location of work also have no effect unless the employer reasonably believes they are necessary to continue the employment of one or more employees.
Reasonableness
See Fair Work Act s.789GK
A jobkeeper enabling direction does not apply if it is unreasonable in all the circumstances.
For example, a direction may be unreasonable because of the impact it would have on the caring responsibilities of the employee. Section 789GK does not otherwise provide guidance on what may be ‘unreasonable’. See ‘What is a reasonable belief?’ below, for more information.
Necessary to continue the employment of employees
See Fair Work Act s.789GL
To give a jobkeeper enabling direction about duties to be performed or location of work, the employer must have information before them that leads them to reasonably believe that the direction is necessary to continue the employment of one or more of their employees.
This is not required for jobkeeper enabling stand down directions.
What is a reasonable belief?
The expression ‘reasonable belief’ and similar expressions are used in a wide variety of contexts in statutes and by the common law.
In the context of discrimination laws, the High Court has held that what is reasonable must be ascertained taking into consideration all of the circumstances of the case, including by reference to the scope and purpose of the Act.[2]
What is a reasonable belief in the context of s.789GL of the Fair Work Act has not yet been considered. In light of previous High Court authority, however, what is reasonable should be considered in light of the objects of Part 6-4C of the Fair Work Act (see s.789GB), the objects of the Fair Work Act (see s.3), and the provisions to which the requirement pertains and the circumstances in the particular case to which the jobkeeper enabling direction relates.
It is clear from cases decided in those differing contexts that not only must the requisite belief actually and genuinely be held by the relevant person, but in addition the belief must be reasonable in the sense that, objectively speaking, there must be something to support it or some other rational basis for the holding of the belief and it is not irrational or absurd.[3]
In determining whether a jobkeeper enabling direction given by an employer to an employee is necessary to continue the employment of one or more employees of the employer, it does not matter that a similar jobkeeper enabling direction could have been given by the employer to an employee other than the relevant employee.[4]
Hypothetical example
Sonya runs a café and employs Chris and Jill, who are both waiters. Sonya’s business has qualified for the jobkeeper scheme.
As a result of COVID-19, Sonya cannot run her café as usual, so she decides that to keep the business running, she will offer home delivered meals. Sonya needs someone to do the deliveries, so she directs Chris to perform those duties. The direction has effect, even though Sonya could have directed Jill to do the deliveries rather than Chris.
Consultation
See Fair Work Act s.789GM
A jobkeeper enabling direction does not apply to an employee unless:
- the employer gave the employee at least three days written notice of the employer’s intention to give the direction. A lesser period of notice may apply if the employee genuinely agrees to a lesser notice period, and
- before giving the direction, the employer consulted the employee, or a representative of the employee, about the direction.
The Regulations may require that a written notice of the employer’s intention to give the direction must be in a prescribed form. As at the date of publication of this benchbook, no relevant regulations have been made.
If an employer has already given notice and consulted with an employee, the employer can give a jobkeeper enabling direction without having to give notice and consult again if:
- the employer previously complied with the notice and consultation requirements in relation to a proposal to give the employee another jobkeeper enabling direction under the same provision, and
- the employee or their representative expressed views about the proposal to the employer, and
- the employer considered those views in deciding to give the direction.
An employer must keep a written record of a consultation with an employee or their representative.
References
[1] Fair Work Act ss.789GDC(1)(a), 789GE(1)(a) and 789GF(1)(a).
[2] Waters v Public Transport Corporation [1991] HCA 49 per Mason CJ and Gaudron J at 32
[3] Amie Mac v Bank of Queensland Limited and Others [2015] FWC 774 (Hatcher VP, 13 February 2015) at para. 79.
[4] Fair Work Act 2.789G(2)
Updated time
Last updated
07 May 2020
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