Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 (38 of 2020)

Schedule 1 Amendment of the Fair Work Act 2009

Part 1 Amendments

Fair Work Act 2009

5 After Part 6-4B

Insert:

Part 6-4C - Coronavirus economic response

Division 1 - Introduction

789GA Guide to this Part

The purpose of this Part is to assist employers who qualify for the jobkeeper scheme to deal with the economic impact of the Coronavirus known as COVID-19.

This Part authorises an employer who qualifies for the jobkeeper scheme to give a jobkeeper enabling stand down direction to an employee (including to reduce hours of work).

This Part authorises an employer who qualifies for the jobkeeper scheme to give a direction to an employee about:

(a) the duties to be performed by the employee; or

(b) the location of the employee's work.

This Part authorises an employer who qualifies for the jobkeeper scheme and an employee to make an agreement in relation to:

(a) the days or times when the employee is to perform work; or

(b) the employee taking annual leave, including at half pay.

This Part provides that an employer who qualifies for the jobkeeper scheme must consult an employee (or a representative of the employee) before giving a direction.

This Part provides that:

(a) a direction given by an employer who qualifies for the jobkeeper scheme to an employee does not apply to the employee if the direction is unreasonable in all of the circumstances; and

(b) a direction given by an employer who qualifies for the jobkeeper scheme to an employee in relation to the duties to be performed by the employee, or the location of the employee's work, does not apply to the employee unless the employer reasonably believes the direction is necessary to continue the employment of one or more employees of the employer.

This Part provides for other safeguards relating to directions given by employers who qualify for the jobkeeper scheme, including a rule that this Part will at all times operate subject to listed laws.

This Part provides that the FWC may deal with a dispute about the operation of this Part.

Note: The core provisions of this Part (namely, Divisions 2, 3, 4, 5, 6, 9 and 11) will be repealed on 28 September 2020.

789GB Object

The object of this Part is to:

(a) make temporary changes to assist the Australian people to keep their jobs, and maintain their connection to their employers, during the unprecedented economic downturn and work restrictions arising from:

(i) the COVID-19 pandemic; and

(ii) government initiatives to slow the transmission of COVID-19; and

(b) help sustain the viability of Australian businesses during the COVID-19 pandemic, including by preparing the Australian economy to recover with speed and strength after a period of hibernation; and

(d) ensure the continued effective operation of occupational health and safety laws during the COVID-19 pandemic; and

(e) help ensure that, where reasonably possible, employees:

(i) remain productively employed during the COVID-19 pandemic; and

(ii) continue to contribute to the business of their employer where it is safe and possible for the business to continue operating.

789GC Definitions

In this Part:

designated employment provision means:

(a) a provision of this Act (other than a provision of this Part or a provision mentioned in section 789GZ); or

(b) a provision of:

(i) a fair work instrument; or

(ii) a contract of employment; or

(iii) a transitional instrument (within the meaning of item 2 of Schedule 3 to the Transitional Act).

employee means a national system employee.

Note: See also Division 2 of Part 6-4A (TCF contract outworkers taken to be employees in certain circumstances).

employer means a national system employer.

fortnight means a 14-day period beginning on a Monday.

hourly rate of pay guarantee has the meaning given by section 789GDB.

jobkeeper enabling direction means a direction authorised by section 789GDC, 789GE or 789GF.

jobkeeper payment means a payment that:

(a) is payable by the Commonwealth in accordance with the jobkeeper payment rules; and

(b) is known as jobkeeper payment.

jobkeeper payment rules means rules made under the Coronavirus Economic Response Package (Payments and Benefits) Act 2020.

licence includes:

(a) registration; and

(b) permit.

minimum payment guarantee has the meaning given by section 789GDA.

qualifies for the jobkeeper scheme has the same meaning as in the jobkeeper payment rules.

wage condition means the wage condition set out in the jobkeeper payment rules.

Division 2 - Employer payment obligations

789GD Obligation of employer to satisfy the wage condition

If:

(a) an employer qualifies for the jobkeeper scheme; and

(b) the employer would be entitled to jobkeeper payment for an employee for a fortnight if (among other things) the employer satisfied the wage condition in respect of the employee for the fortnight;

the employer must ensure that the wage condition has been satisfied in respect of the employee by the end of the fortnight.

Note: 1 This section is a civil remedy provision (see Part 4-1).

Note 2: Under the jobkeeper payment rules, a jobkeeper payment is a payment to an employer for a particular employee for a fortnight.

789GDA Minimum payment guarantee

(1) For the purposes of this Part, the minimum payment guarantee consists of the rule set out in subsection (2).

(2) If a jobkeeper payment is payable to an employer for an employee of the employer for a fortnight, the employer must ensure that the total amount payable to the employee in respect of the fortnight 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;

(b) the amounts payable to the employee in relation to the performance of work during the fortnight.

Note 1: This subsection is a civil remedy provision (see Part 4-1).

Note 2: Amounts referred to in this subsection (other than paragraph (a)) include the following, if they become payable in respect of the fortnight:

(a) incentive-based payments and bonuses;

(b) loadings;

(d) overtime or penalty rates;

(e) leave payments.

789GDB Hourly rate of pay guarantee

(1) For the purposes of this Part, the hourly rate of pay guarantee consists of the rules set out in subsections (2) and (3).

Minimum rate of pay - jobkeeper enabling stand down

(2) If a jobkeeper enabling direction given by an employer under section 789GDC (jobkeeper enabling stand down) applies to an employee of the employer, the employer must ensure that the employee's base rate of pay (worked out on an hourly basis) is not less than the base rate of pay (worked out on an hourly basis) that would have been applicable to the employee if the direction had not been given to the employee.

Note: This subsection is a civil remedy provision (see Part 4-1).

Minimum rate of pay - duties of work

(3) If a jobkeeper enabling direction given by an employer under section 789GE (duties of work) applies to an employee of the employer, the employer must ensure that the employee's base rate of pay (worked out on an hourly basis) is not less than the greater of the following:

(a) the base rate of pay (worked out on an hourly basis) that would have been applicable to the employee if the direction had not been given to the employee;

(b) the base rate of pay (worked out on an hourly basis) that is applicable to the duties the employee is performing.

Note: This subsection is a civil remedy provision (see Part 4-1).

Base rate of pay for certain payment arrangements

(4) If:

(a) an employee is paid otherwise than:

(i) on an hourly basis; or

(ii) by reference to an hourly rate of pay; and

(b) a workplace instrument applicable to the employee:

(i) specifies the employee's base rate of pay for the purposes of the National Employment Standards; or

(ii) sets out a method for working out the employee's base rate of pay for the purposes of the National Employment Standards;

then, for the purposes of this section, the employee's base rate of pay is:

(d) the amount worked out using the method set out in the workplace instrument;

as the case requires.

Division 3 - Jobkeeper enabling stand down

789GDC Jobkeeper enabling stand down

(1) If:

(a) after the commencement of this section, an employer of an employee gave the employee a direction (the jobkeeper enabling stand down direction ) to:

(i) not work on a day or days on which the employee would usually work; or

(ii) work for a lesser period than the period which the employee would ordinarily work on a particular day or days; or

(iii) work a reduced number of hours (compared with the employee's ordinary hours of work);

during a period (the jobkeeper enabling stand down period ); and

(b) when the jobkeeper enabling stand down direction was given, the employer qualified for the jobkeeper scheme; and

(c) the employee cannot be usefully employed for the employee's normal days or hours during the jobkeeper enabling stand down period because of changes to business attributable to:

(i) the COVID-19 pandemic; or

(ii) government initiatives to slow the transmission of COVID-19; and

(d) the implementation of the jobkeeper enabling stand down direction is safe, having regard to (without limitation) the nature and spread of COVID-19; and

(e) the employer becomes entitled to one or more jobkeeper payments for the employee:

(i) for a period that consists of or includes the jobkeeper enabling stand down period; or

(ii) for periods that, when considered together, consist of or include the jobkeeper enabling stand down period;

the jobkeeper enabling stand down direction is authorised by this section.

(2) If the jobkeeper enabling stand down direction applies to the employee, then, during the jobkeeper enabling stand down period, the employer is still required to comply with:

(a) section 789GD (which deals with satisfying the wage condition); and

(b) the minimum payment guarantee (see section 789GDA); and

but is not otherwise required to make payments to the employee in respect of the jobkeeper enabling stand down period.

(3) The jobkeeper enabling stand down direction does not apply to the employee during a period when the employee:

(a) is taking paid or unpaid leave that is authorised by the employer; or

(b) is otherwise authorised to be absent from the employee's employment.

Note: An employee may take paid or unpaid leave (for example, annual leave) during all or part of a period during which the jobkeeper enabling stand down direction would otherwise apply to the employee.

(4) For the purposes of subparagraph (1)(a)(iii), the reduced number of hours may be nil.

(5) This section has effect despite a designated employment provision.

Division 4 - Duties, location and days of work

789GE Duties of work

(1) If:

(a) after the commencement of this section, an employer of an employee directed the employee to perform any duties during a period (the relevant period ) that are within the employee's skill and competency; and

(b) when the direction was given, the employer qualified for the jobkeeper scheme; and

(d) in a case where the employee was required to have a licence or qualification in order to perform those duties - the employee had the licence or qualification; and

(e) those duties are reasonably within the scope of the employer's business operations; and

(f) the employer becomes entitled to one or more jobkeeper payments for the employee:

(i) for a period that consists of or includes the relevant period; or

(ii) for periods that, when considered together, consist of or include the relevant period;

the direction is authorised by this section.

(2) This section has effect despite a designated employment provision.

789GF Location of work

(1) If:

(a) after the commencement of this section, an employer of an employee directed the employee to perform duties during a period (the relevant period ) at a place that is different from the employee's normal place of work, including the employee's home; and

(b) when the direction was given, the employer qualified for the jobkeeper scheme; and

(d) 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; and

(e) the performance of the employee's duties at the place is:

(i) safe, having regard to (without limitation) the nature and spread of COVID-19; and

(ii) reasonably within the scope of the employer's business operations; and

(f) the employer becomes entitled to one or more jobkeeper payments for the employee:

(i) for a period that consists of or includes the relevant period; or

(ii) for periods that, when considered together, consist of or include the relevant period;

the direction is authorised by this section.

(2) This section has effect despite a designated employment provision.

789GG Days of work etc.

(1) If:

(a) an employer of an employee qualifies for the jobkeeper scheme; and

(b) the employer is entitled to one or more jobkeeper payments for the employee; and

the employee:

(d) must consider the request; and

(e) must not unreasonably refuse the request.

(2) If:

(a) after the commencement of this section, an employer and an employee of the employer agree in writing to the employee performing duties during a period (the relevant period ):

(i) on different days; or

(ii) at different times;

compared with the employee's ordinary days or times of work; and

(b) when the agreement was made, the employer qualified for the jobkeeper scheme; and

(i) safe, having regard to (without limitation) the nature and spread of COVID-19; and

(ii) reasonably within the scope of the employer's business operations; and

(d) the agreement does not have the effect of reducing the employee's number of hours of work (compared with the employee's ordinary hours of work); and

(e) the employer becomes entitled to one or more jobkeeper payments for the employee:

(i) for a period that consists of or includes the relevant period; or

(ii) for periods that, when considered together, consist of or include the relevant period;

the agreement is authorised by this section.

(3) This section has effect despite a designated employment provision.

Division 5 - Taking paid annual leave

789GJ Taking paid annual leave

(1) If:

(a) the employer of an employee qualifies for the jobkeeper scheme; and

(b) the employer is entitled to one or more jobkeeper payments for the employee; and

(d) complying with the request will not result in the employee having a balance of paid annual leave of fewer than 2 weeks;

the employee:

(e) must consider the request; and

(f) must not unreasonably refuse the request.

(2) If:

(a) after the commencement of this section, an employer and an employee of the employer agree in writing to the employee taking twice as much paid annual leave, at half the employee's rate of pay, for a period (the relevant period ); and

(b) when the agreement was made, the employer qualified for the jobkeeper scheme; and

(i) for a period that consists of or includes the relevant period; or

(ii) for periods that, when considered together, consist of or include the relevant period;

the agreement is authorised by this section.

(3) This section has effect despite a designated employment provision.

Division 6 - Rules relating to jobkeeper enabling directions

789GK Reasonableness

A jobkeeper enabling direction given by an employer to an employee of the employer does not apply to the employee if the direction is unreasonable in all of the circumstances.

Note: A direction may be unreasonable depending on the impact of the direction on any caring responsibilities the employee may have.

789GL Continuing the employment of employees

(1) A jobkeeper enabling direction given by an employer to an employee of the employer under section 789GE (duties of work) or 789GF (location of work) has no effect unless the employer has information before the employer that leads the employer to reasonably believe that the direction is necessary to continue the employment of one or more employees of the employer.

(2) In determining whether a jobkeeper enabling direction given by an employer to an employee of the employer (the relevant employee ) is necessary to continue the employment of one or more employees of the employer, it is immaterial that a similar jobkeeper enabling direction could have been given by the employer to an employee of the employer other than the relevant employee.

789GM Consultation

(1) A jobkeeper enabling direction given by an employer to an employee of the employer does not apply to the employee unless:

(a) the employer gave the employee written notice of the employer's intention to give the direction; and

(b) the employer did so:

(i) at least 3 days before the direction was given; or

(ii) if the employee genuinely agreed to a lesser notice period - during that lesser notice period; and

(c) before giving the direction, the employer consulted the employee (or a representative of the employee) about the direction.

(2) The regulations may require that a notice under paragraph (1)(a) must be in a prescribed form.

(3) Subsection (1) does not apply to a jobkeeper enabling direction (the relevant direction ) given by an employer to an employee of the employer under a particular section of this Part if:

(a) the employer previously complied with paragraphs (1)(a), (b) and (c) in relation to a proposal to give the employee another direction under that section; and

(b) in the course of consulting the employee (or a representative of the employee) about the proposal, the employee (or the representative of the employee) expressed views to the employer; and

(4) An employer must keep a written record of a consultation under paragraph (1)(c):

(a) with an employee of the employer; or

(b) with a representative of an employee of the employer.

789GN Form of direction

(1) A jobkeeper enabling direction must be in writing.

(2) The regulations may require that a jobkeeper enabling direction must be in a prescribed form.

789GP Duration

(1) A jobkeeper enabling direction given by an employer to an employee of the employer under a particular section of this Part continues in effect until:

(a) it is withdrawn or revoked by the employer; or

(b) it is replaced by a new jobkeeper enabling direction given by the employer to the employee under that section.

(2) Subsection (1) has effect subject to:

(a) subsection (3); and

(b) an order made by the FWC under Division 10.

(3) A jobkeeper enabling direction ceases to have effect at the start of 28 September 2020.

789GQ Compliance

If a jobkeeper enabling direction given by an employer applies to an employee of the employer, the employee must comply with the direction.

Division 7 - Service

789GR Service

(1) For the purposes of this Act, if an employee is subject to a jobkeeper enabling direction during a period, that period counts as service.

(2) Subsection (1) has effect in addition to section 22.

Division 8 - Accrual rules

789GS Accrual rules

(1) If a jobkeeper enabling direction under section 789GDC (jobkeeper enabling stand down) applies to an employee, the employee accrues leave entitlements as if the direction had not been given.

(2) If a jobkeeper enabling direction under section 789GDC (jobkeeper enabling stand down) applies to an employee, the following are to be calculated as if the direction had not been given:

(a) redundancy pay;

(b) payment in lieu of notice of termination.

(3) If an employee takes paid annual leave in accordance with an agreement under subsection 789GJ(2), the employee accrues leave entitlements as if the agreement had not been made.

(4) If an employee takes paid annual leave in accordance with an agreement under subsection 789GJ(2), the following are to be calculated as if the agreement had not been made:

(a) redundancy pay;

(b) payment in lieu of notice of termination.

Division 9 - Employee requests for secondary employment, training etc.

789GU Employee requests for secondary employment, training etc.

If:

(a) a jobkeeper enabling direction given by an employer under section 789GDC (jobkeeper enabling stand down) applies to an employee of the employer; and

(b) the employee gives the employer any of the following requests:

(i) a request to engage in reasonable secondary employment;

(ii) a request for training;

(iii) a request for professional development;

the employer:

(d) must not unreasonably refuse the request.

Note: This section is a civil remedy provision (see Part 4-1).

Division 10 - Dealing with disputes

789GV FWC may deal with a dispute about the operation of this Part

(1) The FWC may deal with a dispute about the operation of this Part.

(2) The FWC may deal with a dispute by arbitration.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(3) The FWC may deal with a dispute only on application by any of the following:

(a) an employee;

(b) an employer;

(d) an employer organisation.

(4) The FWC may make any of the following orders:

(a) an order that the FWC considers desirable to give effect to a jobkeeper enabling direction;

(b) an order setting aside a jobkeeper enabling direction;

(i) setting aside a jobkeeper enabling direction; and

(ii) substituting a different jobkeeper enabling direction;

(d) any other order that the FWC considers appropriate.

(5) The FWC must not make an order under paragraph (4)(a) or (c) on or after 28 September 2020.

(6) An order made by the FWC under paragraph (4)(a) ceases to have effect at the start of 28 September 2020.

(7) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.

789GW Contravening an FWC order dealing with a dispute about the operation of this Part

A person must not contravene a term of an FWC order dealing with a dispute about the operation of this Part.

Note: This section is a civil remedy provision (see Part 4-1).

Division 11 - Exclusions

789GX Exclusions

The Minister may, by legislative instrument, exclude one or more specified employers from the operation of any or all of the following provisions:

(a) section 789GDC;

(b) section 789GE;

(d) section 789GG;

(e) section 789GJ.

Division 12 - Protections

789GXA Misuse of jobkeeper enabling direction

An employer must not purport to give a jobkeeper enabling direction if:

(a) the direction is not authorised by this Part; and

(b) the employer knows that the direction is not authorised by this Part.

Note: This section is a civil remedy provision (see Part 4-1).

789GY Protection of workplace rights

For the avoidance of doubt, each of the following is a workplace right within the meaning of Part 3-1:

(a) the benefit that an employee of an employer has or derives because of an obligation of the employer under section 789GD to satisfy the wage condition;

(b) agreeing, or not agreeing, to perform duties:

(i) on different days; or

(ii) at different times;

in accordance with subsection 789GG(2);

(d) agreeing, or not agreeing, to take paid annual leave in accordance with subsection 789GJ(2);

(e) making a request under section 789GU (secondary employment, training etc.).

789GZ Relationship with other laws etc.

(1) This Part will at all times operate subject to the following:

(a) Division 2 of Part 2-9 (payment of wages etc.);

(b) Part 3-1 (general protections);

(d) section 772 (employment not to be terminated on certain grounds);

(e) an anti-discrimination law;

(f) a law of the Commonwealth, a State or a Territory, so far as the law deals with health and safety obligations of employers or employees;

(g) a law of the Commonwealth, a State or a Territory, so far as the law deals with workers' compensation.

(2) This Part has effect subject to a person's right to be represented, or collectively represented, by an employee organisation or employer organisation.

789GZA Redundancy

The giving of a jobkeeper enabling direction does not amount to a redundancy.

Division 13 - Review of this Part

789GZB Review of this Part

(1) The Minister must cause an independent review to be conducted of the operation of this Part.

(2) The review must start on or before:

(a) 28 July 2020; or

(b) if a later day is specified in the regulations - that later day.

(3) The persons who conduct the review must:

(a) complete the review; and

(b) give the Minister a written report of the review;

on or before:

(d) if a later day is specified in the regulations - that later day.

(4) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 5 sitting days of that House after the report is given to the Minister.

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