On 8 April 2020, Federal Treasurer Josh Frydenberg introduced the Coronavirus Economic Response Package Omnibus (Measures No. 2) Bill 2020 (Cth) (“the Bill”) to the House of Representatives. The Bill passed both houses of parliament on the same day, and received the royal assent on 9 April 2020.
The Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 (Cth) (“the Second Omnibus Act”) makes amendments to various Acts in order to better support Australians during the Coronavirus pandemic.
Schedule 1 of the Second Omnibus Act makes amendments to the Fair Work Act 2009 (Cth) (“the Fair Work Act”) in order to support the operation of the JobKeeper scheme. The Second Omnibus Act inserts Part 6-4C into the Fair Work Act which authorises an employer who qualifies for the JobKeeper scheme, to give a JobKeeper enabling stand down direction to an employee.
The directions can be in regards to:
In giving a direction, employees are to consult with the employee, or a representative of the employee first. However, the direction will not apply if it is found to be unreasonable in all circumstances. A direction may be found to be unreasonable when taking into account the impact that the direction will have on an employee’s caring responsibilities. Furthermore, the direction will only apply where the employer reasonably believes that the direction is necessary to ensure that one or more employees can continued to be employed.
Part 6-4C also allows a JobKeeper employer to come to an agreement with their employee in regard to:
These amendments also require employers to meet minimum payment obligations for employees subject to directions and agreements. The inserted section 789GDA(2) states:
“If a jobkeeper payment is payable to an employer for an employee of the employer for a fortnight, the employer must ensure that the total amount payable to the employee in respect of the fortnight is not less than the greater of the following:
(a)the amount of jobkeeper payment payable to the employer for the employee for the fortnight;
(b)the amounts payable to the employee in relation to the performance of work during the fortnight.”
The new Part 6-4C also guarantees a minimum hourly base rate of pay for employees working under a direction. The base rate is calculated on an hourly basis and is not to be less than the greater of the either:
Part 6-4C also contains provisions regarding how an employee will accrue leave entitlements when under a direction or agreement. If a JobKeeper recipient is under a direction or a paid annual leave agreement, then, leave entitlements, redundancy pay, and payment in lieu of notice of termination will accrue as though the direction or agreement had not been made.
The Second Omnibus Act also contains provisions which:
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Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 (Cth) and Coronavirus Economic Response Package Omnibus (Measures No. 2) Bill 2020 (Cth) supporting documents available from TimeBase’s LawOne Service
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