Fair Work Commission

Martha runs a discount variety shop selling household goods. She employs 4 part-time staff. On 1 March 2020, her employees all worked 30 hours per week. In April, Martha closed her shop due to COVID-19 restrictions. Martha was eligible for JobKeeper payments for her 4 employees. She stood her staff down by giving them JobKeeper enabling stand down directions (including passing on the full JobKeeper wage subsidy to them).

Martha re-opened her shop when restrictions eased. However, sales were still down compared to last year. She gave her employees a partial JobKeeper stand down direction so that each employee worked 20 hours per week until 27 September 2020.

Turnover in the June quarter of 2020 was 20% lower than in the June quarter of 2019. This means that Sunshine Valley Discount Variety Shop met the 10% decline in turnover test. Martha made a statutory declaration because Sunshine Valley Discount Variety Shop is a small business with fewer than 15 employees. In mid-September 2020, she consulted with her staff and notified them of partial JobKeeper enabling stand down directions in writing under s.789GJA. The new partial stand down directions to work 20 hours per week applied from 28 September 2020.

Sunshine Valley Discount Variety Shop’s turnover for the September 2020 quarter was only 7% less than the September 2019 quarter. This means that after 28 October 2020, the business does not meet the 10% decline in turnover test. Sunshine Valley Discount Variety Shop’s JobKeeper enabling stand down direction cannot apply from 28 October 2020. Martha gives her staff notice that the direction will not apply from 28 October 2020. Her employees resume working 30 hours per week.

A direction reducing an employee's ordinary hours of work is called a JobKeeper enabling stand down direction.

A legacy employer can direct an employee to:

• not work on a day or days that the employee would normally work
• work for a shorter time than the employee would normally work, or
• work fewer hours than the employee's ordinary hours of work.

For a legacy employer to give a valid direction:

• the employer must hold a 10% decline in turnover certificate when the direction is given
• the employer must not be claiming JobKeeper payments for the employee that the direction applies to on or after 28 September 2020
• the employer was entitled to receive a JobKeeper payment for the employee before 28 September 2020
• the direction applies on or after 28 September 2020
• the direction must not require the employee to work less than 60% of the ordinary hours the employee worked at 1 March 2020 (or less than 60% of the ordinary hours or work specified in the Fair Work Regulations 2013, if the employee belongs to a class of employees specified in the Fair Work Regulations 2013)
• the direction must not require the employee to work less than 2 hours per day
• the employer must not be able to usefully employ the employee for their normal days or hours because of the COVID-19 pandemic or government initiatives to slow the transmission of COVID-19
• the direction must be safe having regard to the nature and spread of COVID-19
• the direction must be reasonable
• the direction must be in writing
• the employer must give the employee notice of their intention to give the direction in writing at least 7 days before they give the employee the direction.

The legacy employer must consult with employees at least 7 days before they give the direction (or less if the employee genuinely agrees) and keep a written record of the consultation.

The employer must:

• recognise any representative of employees and consult with them
• give the employee or representative any information about the proposed direction such as information about the direction, when it will start and the effects of the direction
• invite the employee or their representative to give their views about the impact of the direction
• genuinely consider the employee’s views within the 7-day period.

If an employee has been given a JobKeeper enabling stand down direction the employee may make a:

• request to engage in reasonable secondary employment
• request for training
• request for personal development

The employer must consider the request and not unreasonably refuse it.

Find out more

Visit the JobKeeper benchbook for further information about JobKeeper enabling stand down directions.

A legacy employer can direct an employee to perform any duties that are within the employee's skill and competency.

To give a valid direction:

• the duties must be reasonably within the scope of the employer's business operations
• the direction must be reasonable
• the employee must have the appropriate licence or qualification to perform the duties (if necessary)
• the employer must have information that leads them to reasonably believe that the direction is necessary to keep employing one or more employees (but not necessarily the employee who was given the direction)
• the direction must be safe having regard to the nature and spread of COVID-19.

For a legacy employer to give a valid direction:

• the employer must hold a 10% decline in turnover certificate when the direction is given
• the employer must not be claiming JobKeeper payments for the employee that the direction applies to on or after 28 September 2020
• the employer was entitled to receive a JobKeeper payment for the employee before 28 September 2020
• the legacy employer must consult with employees at least 7 days before they give the direction (or less if the employee agrees) and keep a written record of the consultation. The employer must:
  • recognise any representative of employees and consult with them
  • give the employee or representative any information about the proposed direction such as information about the direction, when it will start and the effects of the direction
  • invite the employee or their representative to give their views about the impact of the direction
  • genuinely consider the employee's views within the 7-day period.
• the employer must give the employee notice of their intention to give the direction in writing at least 7 days before they give the employee the direction.
• the employer must give the direction in writing
• the direction applies on or after 28 September 2020.

Find out more

Visit the JobKeeper benchbook for further information about JobKeeper directions about duties of work.

An employer can direct an employee to perform duties at a place that is different from the employee’s normal place of work (including the employee's home).

To give a valid direction:

• the place must be suitable for the employee’s duties
• if the place isn’t the employee’s home, the travel distance can’t be unreasonable in all the circumstances (including the circumstances around the COVID-19 pandemic)
• performing the duties at the place must be reasonably within the scope of the employer’s business operations
• the direction must be reasonable
• the employer must have information that leads them to reasonably believe that the direction is necessary to keep employing one or more employees (but not necessarily the employee who was given the direction)
• performing the duties at the place must be safe having regard to the nature and spread of COVID-19.

For a legacy employer to give a valid direction:

• the employer must hold a 10% decline in turnover certificate when the direction is given
• the employer must not be claiming JobKeeper payments for the employee that the direction applies to on or after 28 September 2020
• the employer was entitled to receive a JobKeeper payment for the employee before 28 September 2020
• the legacy employer must consult with employees at least 7 days before they give the direction (or less if the employee agrees) and keep a written record of the consultation. The employer must:
  • recognise any representative of employees and consult with them
  • give the employee or representative any information about the proposed direction such as information about the direction, when it will start and the effects of the direction
  • invite the employee or their representative to give their views about the impact of the direction
  • genuinely consider the employee’s views within the 7-day period.
• the employer must give the employee notice of their intention to give the direction in writing at least 7 days before they give the employee the direction.
• the employer must give the direction in writing
• the direction applies on or after 28 September 2020.

Find out more

Visit the JobKeeper benchbook for further information about JobKeeper directions about location of work.

A legacy employer can request an employee to agree to work on different days, or at different times, compared with the employee's ordinary days or times of work.

For an agreement to be authorised by the JobKeeper provisions:

• if the request is made before 28 September 2020, the employer must not be entitled to a JobKeeper payment for the employee for the fortnight beginning 28 September 2020
• if the request is made on or after 28 September 2020, the employer must not be entitled to JobKeeper payments for the employee
• the employer must not be claiming JobKeeper payments for the employee for the time that the agreement applies (after 28 September 2020)
• the employer must have been entitled to a jobkeeper payment for the employee before 28 September 2020
• the employer held the 10% decline in turnover certificate when the request was given
• working on the days or at the times in the agreement must be safe having regard to the nature and spread of COVID19
• working on the days or at the times in the agreement must be reasonably within the scope of the employer’s business operations
• the agreement must not reduce the employee’s number of hours of work (compared to their ordinary hours of work)
• the agreement must not reduce the employee’s number of hours of work to less than 2 hours per day
• the agreement must be in writing.

The employee must consider and must not unreasonably refuse the request.

Find out more

Visit the JobKeeper benchbook for further information in relation to JobKeeper agreements about changing days and times of work.