The COVID-19 pandemic continues to wreak havoc on Australian businesses, many of which are currently experiencing significant reductions in revenue, restrictions on trade, or forced government closure. As a result, businesses are confronted with questions about how to navigate the ever- changing legal and regulatory landscape, especially in light of the recent introduction of the temporary JobKeeper changes and the variation of certain modern awards.

These are some of the hot topics in the employment law space arising from the COVID-19 pandemic:

What is "stand down" and how is it different from redundancy?

In these difficult times, employers may need to consider their options regarding their obligation to pay wages. In certain circumstances, employers have the right to effectively freeze the employment of an employee without pay. This is called "stand down" and it differs from redundancy. Redundancy, a form of termination, is where a role is no longer required to be performed. Stand down, being a temporary measure, is a less drastic alternative to redundancy.

Can I ask employees to work different days and times and/ore reduced hours?

Generally, an employer cannot direct an employee to work different days and hours than usual, as this would be in breach of contract. However, the JobKeeper rules and certain varied modern awards give employers greater flexibility to change employees' ordinary working hours, including by reducing their hours and days of work to nil.

Can I ask employees to take annual leave?

Similarly, the JobKeeper rules and certain varied modern awards give employers greater flexibility in directing employees to take annual leave, provided the employee keeps a leave balance of at least 2 weeks. In addition, an employer may agree to an employee taking twice as much annual leave at half pay.

How do I reinstate laid off employees?

In light of COVID-19, many businesses may have already laid off employees under the Fair Work Act, a contract or an enterprise agreement because they could not afford to pay their wages. However, the JobKeeper allowance permits employers in certain circumstances to obtain a $1,500 fortnightly wage subsidy for employees for the purpose of maintaining a connection between the employer and the employee, and to give employees any available work. Therefore, employers may now consider reinstating employees who had been laid off.

There are specific eligibility requirements for the JobKeeper wage subsidy. For example, employers with an annual turnover of $1 billion or less must show a 30% reduction in turnover. In addition, employers need to take note of the following key dates relevant to JobKeeper:

• 1 March 2020 – the date an employee must have been employed to be eligible for the JobKeeper allowance

• 30 March 2020 – the date the JobKeeper wage subsidy becomes available

• 28 September 2020 – the date the JobKeeper wage subsidy and JobKeeper scheme as a whole ends

How can we help?

1. Providing advice to help you navigate the JobKeeper scheme, including enacting stand downs, reducing hours, flexible work arrangements, annual leave directions and reinstating laid-off employees

2. Providing advice in relation to varied modern awards and assisting you to determine which modern award or enterprise agreement applies to individual employees in your workforce

3. Assisting you to draft letters to your employees

4. Putting you in touch with our tax team to discuss employer and employee eligibility requirements for the JobKeeper wage subsidy

Contact our Employment team or our Tax team for assistance.

The material in this article was correct at the time of publication and has been prepared for information purposes only. It should not be taken to be specific advice or be used in decision-making. All readers are advised to undertake their own research or to seek professional advice to keep abreast of any reforms and developments in the law. Brown Wright Stein Lawyers excludes all liability relating to relying on the information and ideas contained in this article.

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