Amendments have also been made to the Fair Work Act 2009 to support the practical operation of the JobKeeper Scheme and to facilitate a range of flexible working arrangements designed to support the continued operation of businesses and the ongoing employment of employees.

JobKeeper enabling directions

Under these amendments, an employer who qualifies for JobKeeper Payments in respect of an eligible employee will be able to provide (subject to certain safeguards) the following directions (i.e., JobKeeper enabling directions) to the employee (provided the employee is initially consulted and the directions are not unreasonable in the circumstances):

• A ‘stand down’ direction, which can be a direction for the employee to not work on particular days, to work for a lesser period or to work a reduced number of

Such a direction can only be given if, amongst other things, the employee cannot be usefully employed for the employee’s normal days or hours during the period the employer is eligible to receive JobKeeper Payments for the employee, because of:

• changes to the business (e.g., less patronage and/or the closure of stores) attributable to the Coronavirus pandemic; or
• government initiatives to slow down the transmission of the Coronavirus

During the period to which such a direction applies, the employer is still required to pay the employee the fortnightly value of the JobKeeper Payment (i.e., $1,500 per fortnight). Furthermore, such a direction cannot reduce the employee’s hourly base rate of pay, meaning an employer must ensure that the total amount payable to a particular eligible employee in respect of a fortnight is either:

• the amount of the JobKeeper Payment for the employee; or
• if a greater amount is payable to the employee for the performance of work during the fortnight, that amount (i.e., in full).

• A direction about the duties to be performed by the employee that are within the employee’s skill and competency

Again, such a direction cannot reduce the employee’s hourly base rate of pay.

• A direction for the employee to work at a location that is different from the employee’s normal place of work (including the employee’s home).

This direction can only be given if, amongst other things, the new work location does not require the employee to travel a distance that is unreasonable in the circumstances (where the location is not the employee’s home).

This direction can only be given if, amongst other things, the new work location does not require the employee ot travel a distance that is unreasonable in the circumstances (where the location is not the employee’s home).

Employment agreements

Furthermore, in addition to the JobKeeper enabling directions (discussed above) the amendments to the Fair Work Act 2009 will also generally allow an employer and its employees to enter into agreements relating to their ongoing employment.

Specifically, an employer (during the period that they are entitled to the JobKeeper Payment for an employee) can make a request to the employee (and the employee cannot unreasonably refuse) for the employee to agree to:

• perform their duties on different days or at different times (without a reduction in the employee’s working hours); and/or
• take annual leave (including at half pay) that will not result in the employee having a balance of paid annual leave of fewer than two weeks

How do these Fair Work changes affect an employee’s existing terms and conditions of employment?

The above amendments have the effect of temporarily modifying employment rights and obligations to the extent specified in the relevant direction to, or agreement with, an employee. What this basically means is that the terms and conditions of an employee’s employment beyond the scope of the above JobKeeper-related amendments will not be affected.

Furthermore, if no such direction or agreement is made under the JobKeeper Scheme, an employee’s existing rights and obligations (which may be governed by the Fair Work Act 2009, a fair work instrument, a contract of employment or transitional instrument) continue to apply.

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