27 May 2020

The JobKeeper scheme has given employers temporary powers to direct staff to stand down, take leave or undertake different duties. That ability has also increased the arbitration powers of the Fair Work Commission to deal with disputes.

Most recently a stood down part-time employee raised a dispute over the direction for her to take a period of annual leave as a ‘JobKeeper enabling direction’.

The worker, who was receiving double her usual wage on the JobKeeper scheme, was found to have unreasonably refused a request to use up one day’s annual leave each week over 16 weeks.

After 22 years with the company, typically working two days a week, the employer stood the employee down on March 23 and issued her a JobKeeper-enabling direction not to attend work.

With accrued annual leave of almost 10 weeks and nine weeks’ long service leave, she was subsequently asked to take one day a week annual leave until September 27, when the COVID-19 provisions cease to take effect, or her leave balance had reduced to four days (a two week balance).

The worker said she did not believe the legislation was intended to assist large employers such as VRTP to use employees’ annual leave accruals to set-off against the Federal Government’s JobKeeper payments.

She also argued that the policy unfairly hit long-serving employees who had accrued significant leave.

In her case, the leave balance had already been calculated as underpinning planned holidays, including a six-week trip to Europe in 2021.

The Commission pointed out that the test is not, however, whether the employer has acted reasonably or unreasonably; it is whether the worker has unreasonably refused the request of the employer.

In all the circumstances, and noting that [the worker] anticipates requiring only four days’ annual leave for her proposed holidays in September and October 2020, it was considered that her refusal of the request was unreasonable.

Finally, the Commissioner stated, “for the sake of clarity”, she had not considered in reaching her conclusion the disparity between the worker’s usual wage and her JobKeeper payment.

MEA reminds members that JobKeeper enabling directions need to be issued in writing and should follow the consideration of what work the employer has for the worker before issuing the direction.

If you have any questions about JobKeeper enabling directions, please contact the MEA Workplace Relations Team on 1300 889 198.