Responding to employees on JobKeeper refusing to return to work

By Jerome Doraisamy|04 June 2020
Michael Byrnes and Emily Capener

There has been no bigger test of employer’s brands than COVID-19, creating new challenges for firms to manage their employees.

In recent weeks, Australian mainstream media has reported on employees not wanting to return to work, preferring instead to stay at home, not work and continue to collect the JobKeeper allowance of $750 per week.

Assuming the reports are “not totally apocryphal”, Swaab partner Michael Byrnes and graduate Emily Capener told Lawyers Weekly, such employees must know that this is “not the way the scheme operates, JobKeeper doesn’t confer upon employees a $750 per week paid leave option”.

“If an employee repeatedly fails to present for work after being directed to do so then, absent some compelling reason, they may have abandoned their employment. The JobKeeper subsidy will end with cessation of employment,” the pair said.

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“If an employee has been stood down (whether pursuant to the usual stand-down right in the Fair Work Act or a JobKeeper stand-down direction) and the employer wants that employee to return then, as a general proposition, the employee must do so. The employer would implement this by bringing the stand-down to an end and directing the employee to return to work on a specified date.”

It goes without saying, Mr Byrnes and Ms Capener continued, that an employer who wants an employee to return to their pre-COVID-19 hours needs to pay the employee their usual salary.

“They cannot unilaterally decrease the salary of the employee for the same hours of work. Employers should also consider the various health and safety issues that apply to all employees returning to work in the present environment (irrespective of JobSeeker subsidy), such as the need for a clean workplace that enables social distancing and the capacity limitations on public transport,” they advised.

“Sadly, but perhaps not inevitably, it appears there have been JobKeeper abuses by both employees and employers. The rules have been established to try and strike a balance between the legitimate interests of both parties for the course of the pandemic crisis. It is neither intended to be a paid holiday for employees nor an opportunity for government-subsidised exploitation by employers.”

As a general proposition, Mr Byrnes and Ms Capener explained, employers cannot unilaterally vary the duties of employees, “although the terms of an employment contract might give an employer some latitude”, they said.

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For JobKeeper eligible employees, however, employers might be able to issue a ‘JobKeeper enabling direction’ to vary duties. In doing so the employer must ensure the necessary conditions for issuing such a direction are satisfied. These include the duties being within the employee’s skill and competence, the employee holding any necessary qualifications, the employer reasonably believing that the direction is necessary to maintain the employment of the employee and the direction being reasonable in all the circumstances,” they outlined.

“If the necessary conditions for a JobKeeper enabling direction in respect of duties have been satisfied, then the employer can insist upon the employee performing the modified duties. An employee who refuses to do so puts themselves at risk of disciplinary action by the employer.”

Mr Byrnes added: “In the context of a law firm a JobKeeper enabling direction in relation to duties might be used to direct lawyers to perform different legal work than that which they ordinarily perform or direct a secretary who has traditionally worked with one team of a law firm being asked to support a busier team. It can help achieve more effective utilisation of resources.”

JobKeeper is a temporary measure, the pair mused, and is due to conclude at the end of September, and it is unlikely that it will be extended.

“The challenge is in ensuring the firm that emerges from the pandemic crisis is one that can adapt to the post-COVID-19 world,” Mr Byrnes and Ms Capener submitted.

“While JobKeeper [helps facilitate] this by supporting the retention of staff until September, boutique employers need to be careful to resist the temptation of being led into a false sense of security by the scheme, deferring the hard work of planning and making any necessary structural adjustments. These adjustments include some areas of practice pivoting (as many clients have had to do) to mitigate the loss or diminution of traditional sources of work.”

When asked how best boutique law firms can manage these considerations, the pair said that boutiques cannot “cruise along with a [business-as-usual] approach”.

Strategic planning informed by deep thinking, available market information and a flexible attitude [are] very important. Employees should be brought along on this journey. Once JobKeeper comes to an end, it’s not just the money that stops but also the flexibility that comes with the employer directions and requests that form an integral part of the scheme,” they suggested.

“If boutique employers want employees to perform different duties or work varied hours, they will likely need the co-operation and consent of employees. That is less likely to be forthcoming from employees who feel they have been shut out of the post-COVID-19 transition process.

For some boutique employers, Mr Byrnes concluded, “the rubber is going to hit the road once JobKeeper ends”.

“If employees feel they have not been treated with respect, or worse, exploited during the crisis, then they might put up resistance to a post-COVID-19 program of change,” he said.

“There has been no bigger test of ‘employer brand’ than this crisis. Some employers might find they have no employee goodwill left to draw on when they might need it most.”

Responding to employees on JobKeeper refusing to return to work
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