New provisions in the Fair Work Act 2009 (Cth) (‘the Act’) allow an employer who qualifies for the JobKeeper scheme to issue an eligible employee with a stand down direction, temporarily reducing their hours of work. Where a JobKeeper enabling stand down direction is given, the employee is entitled to be paid either $1500 (before tax) each fortnight or their usual pay for the work performed, whichever is higher. Importantly, a stand down direction is only permissible if it is reasonable in all the circumstances. The provisions do not allow an employer to reduce employee’s hours however they see fit. This issue was highlighted in Allan Jones v Live Events Australia Pty Ltd [2020] where the FWC found in favour of an employee whose hours were reduced by 40% under a JobKeeper enabling stand down direction. The direction was found to be authorised, given the financial detriment suffered by the employer due to the COVID-19 pandemic. However, the FWC found the extent of the reduction to be unreasonable considering the working hours of other employees, and the ongoing business for horseracing, which the employee was heavily involved with in his specific role. There are various factors to consider when imposing a JobKeeper enabling stand down direction, including reasonableness as well as strict notification and consultation requirements. Contact M+E for further information and advice in this area.
