Can my employer direct me to…….?
What you need to know about JobKeeper direction
The introduction of the Job Keeper Scheme means that if you and your employer are eligible and nominate for the Scheme, your employer can give you enabling directions. However, your employer has an obligation to consult about these directions with you and they must be reasonable. If you feel that you have been forced to accept a direction to keep your job, or that the direction you have been given is unreasonable, there are a number of ways you can raise your concerns with your employer.
Job Keeper Enabling Directions
The Fair Work Act now includes provisions on what an employer eligible to receive JobKeeper payments is allowed to direct you to do. These are called ‘enabling directions’ and can be in relation to:
- Reducing your hours of work.
- Amending the duties you perform
- The location in which your duties are performed
Any enabling directions from your employer will not be lawful unless your employer gives you at least 3 days written notice of their intention to enforce the direction. Your employer must give you the opportunity to consult about the direction either in writing or verbally within the 3 day period.
You should keep a written record of any consultation communications you have with your employer.
Reducing your hours of work
An employer can direct you to:
- not work or reduce your hours to nil i.e. ‘stand you down’
- not work on a day or days that the employee would ordinarily work
- work for a shorter amount of time than you would normally work on one or more days, or
- work fewer hours than your ordinary hours of work in general
Amending the duties you perform
An employer can direct you to perform any duties that are within your skill and competency.
For instance, if the duties require you to have a licence or qualification, you must have the licence or qualification.
These duties must be safe and reasonably within the scope of your company’s scope of work.
The location in which your duties are performed
An employer can direct you to perform duties at a place that is different from your normal place of work, including at your home.
This direction can only be given during the period in which you receive the Job Keeper payment.
If your employer directs you to work at a place that is not your home, you cannot be requested to travel unreasonable distances.
It must also be safe for you to work at the place your employer directs you to work from and reasonably within the scope of your employer’s business operations.
When can I refuse a direction?
A direction does not apply if it is unreasonable in all of the circumstances. You are entitled to refuse a direction if for example, it unreasonably impacts your caring responsibilities as a parent of a child who is of school age or younger.
Enabling directions must be reasonable. The Act does not allow your employer to:
- Reduce your hourly rate
- Make unreasonable requests
- Change your hours for the sole purpose of maximising the Job Keeper payment if it would be unreasonable for you to work more hours than you normally would.
Employers who give enabling directions must:
- Pay your wages – $1500 per fortnight at minimum and the amount payable for work you have performed beyond the value of this payment at your usual hourly rate.
- Uphold the general protections you are normally entitled to.
- Not unlawfully terminate you
- Not discriminate against you
- Ensure they meet their duties concerning your health and safety at work
- Make it clear that any dispute over employer directions is a workplace right and adverse action can not be taken against an employee because you disagreed with or disputed a direction
What can I do if my employer is being unreasonable?
If your employer has made a job keeper direction, and you believe it is unreasonable, within the 3 day consultation period, you may raise this with your employer in writing and discuss a way forward that suits you and your employer. This could include:
- Discussing days/hours that best suit your needs;
- Modification of roles and responsibilities at work;
- Make a request to take paid or unpaid leave if you have accrued leave. You may also request to take leave and be paid at a half rate to extend the period of leave.
- Request to reduce your hours to a part time arrangement.
- Request a flexible working arrangement to work outside of your traditional hours and work in blocks of shifts rather than a usual 9am-5pm working day.
Commence a dispute claim with the Fair Work Commission
If you are an employee under the jobkeeper scheme, and you believe the job keeper direction provided to you is unreasonable, and your employer is unwilling to reasonably consider your circumstance, you can apply to the Fair Work Commission to commence a claim to resolve a JobKeeper dispute.
If you’re unsure or would like support contact us today on 1800 RES 123 to arrange a consult.
However, you should not submit this application if:
- Your dispute relates to your entitlement to JobKeeper (visit the ATO’s website)
- Your employer is refusing to pay you the Jobkeeper payment and you are eligible for it; or (visit the ATO’s website)
- You think you have been underpaid under the scheme (Check FWC Website).
If you are not under the Job Keeper Scheme, and your employer is trying to unilaterally vary the terms of your employment, you can look at some of our other resources about consultation under a modern award or EA or variation of employment template letters in our Facebook Group.
Directions to take a pay cut: should I agree?
One final tip – if you are being asked to day a pay cut due to COVID-19 you should read out blog post first: how to legally take a pay cut during COVID-19. If you are being forced to agree to a pay cut in writing because you think you will lose your job if you don’t:
- Don’t agree unless it is temporary and your hours are also reduced, so that there is no change to your hourly rate. Join our Facebook Group to access our free template variation letter.
- You might be entitled to commence a dispute – Check if you have a claim by booking a 20 minute express COVID19 consult today.
- Last resort: Don’t want to commence a dispute but still want to protect yourself? Sign the letter if you feel like you have no other choice but include the statement: “I am signing under protest/duress and reserve my rights”
To help you navigate the changes we have launched a chatbot to give you quick answers to your questions about stand down, dismissal and pay cuts.
If you believe your employer is being unreasonable get in contact with us today. More than ever, it’s important for you to understand your rights at work with job keeper payments and to enforce them with your employer.
Checkout the Fair Work Commision website for more information on your rights and the Jobkeeper payment.