During the difficult times caused by the coronavirus, many employees have been stood down by their employer for a variety of reasons.
Under the Fair Work Act, employers already had the ability to stand down workers who could not be usefully employed – however, this was limited to just three reasons (see section 524):
1. Industrial action
2. Breakdown of machinery
3. A stoppage of work for any cause which the employer cannot reasonably be held responsible.
As a result of the coronavirus pandemic, a new stand-down provision is now available to those employers participating in the JobKeeper scheme.
This new provision within the Fair Work Act enables the employer to stand down an employee who cannot be usefully employed because of the COVID-19 pandemic or the government’s initiatives to slow the spread of COVID-19. This stand down can be a full or partial stand down, allowing for a reduction (including to zero) in days or hours of work.
It also allows the employer to direct the employee regarding the location of work, which may be from home or another site, as long as the travel requirements are not unreasonable.
Lastly, employers can direct employees to take annual leave, though this cannot cause an employee’s annual leave balance to drop below two weeks.
However, there are some safeguards in place for employees.
A worker’s hourly rate of pay cannot be less due to a JobKeeper-enabling stand down than would otherwise be applicable.
An employee to whom a JobKeeper-enabling stand down direction applies may request to engage in reasonable secondary employment, training or professional development. An employer must consider, and cannot unreasonably refuse, any such request.
These JobKeeper employer directions will cease on September 28, 2020. It is also important to note that these do not apply to an employer who is not receiving JobKeeper, and it does not apply to any employee not receiving JobKeeper, even if their employer is.
JobSeeker or JobKeeper?
A number of workers were stood down or let go prior to the JobKeeper scheme being made available.
If a worker has been stood down without pay and their employer is not receiving JobKeeper subsidy then they should apply for JobSeeker. However, if the employer is now receiving JobKeeper, then the worker may also be entitled to receive JobKeeper, depending on when they ceased work.
To access JobSeeker payments you must meet the following criteria:
- Be aged between 22 and pension age.
- Have an income and assets under the test limits.
- Meet residence requirements.
You will also need to either meet the definition of unemployed, or be sick or injured and unable to work or study for a short time.
There should be no changes made to employment without consultation between the employer, employee and the union. Please contact the AEU on (03) 9417 2822 if you need support regarding these issues.