Allan Jones v Live Events Australia Pty Ltd  FWC 3469 (Anderson DP, 3 July 2020).
The applicant, a broadcast engineer whose work primarily involves coverage of horse racing events in Western Australia, normally worked in excess of 80 hours per fortnight pre-COVID-19.
The overall business of the respondent has been disrupted by COVID-19 and all its employees, except the applicant, agreed to a partial reduction to their contracted earnings of initially 40%. The applicant was given a jobkeeper enabling stand down direction reducing his minimum hours of work by 40%, from 80 to 48 per fortnight. At the time, the respondent continued to roster the applicant for around 80 hours per fortnight and he was performing productive work across those hours, but his regular overtime work had been scaled back.
The applicant argued that the jobkeeper enabling stand down direction was not authorised because the requirement in s.789GD(1)(c) that he could not be usefully employed for his normal days or hours had not been met, and the direction was ‘unreasonable in all the circumstances’.
The Commission considered that the applicant was not completely working his ‘normal’ hours (including regular overtime). Considering this and the possibility that his hours could be altogether reduced if there was a cancellation of horse racing events due to COVID-19, the Commission was satisfied that the requirement in s.789GD(1)(c) was made out.
However, the Commission was not satisfied that the direction was reasonable, as it was issued at a time when the respondent expected to continue to roster the applicant to work in excess of 48 hours per fortnight. The Commission said the direction was precautionary in nature, with the respondent seeking flexibility to reduce the applicant’s ordinary hours by 40% should it need to do so. The Commission observed that a reasonable level of contingency would not of itself render a direction unreasonable, but a contingency which is so disproportionate from the actual circumstances is an unreasonable direction.
The Commission made an order substituting the direction with a new direction that the applicant’s minimum hours of work be no less than 64 per fortnight where in all the circumstances this reduction is necessary and reasonable.