Job Keeper Decisions

Whilst there is little doubt that JobKeeper has done an excellent job at providing income support to business in a very short period of time –it has not unexpectedly created lots of uncertainty as to its practical application for a variety of employee entitlements.

Thankfully, there are now a number of decisions flowing from FWC which provide more guidance around these issues. We have attached a table for your assistance. Almost all decisions have been consistent with what most commentators thought would occur and only one stands out as being somewhat ‘surprising’.

The ‘surprising’ decision relates to recent confirmation by FWC that it was not unreasonable for employer to provide a JobKeeper enabling direction that had the effect of requiring some casual employees to work more hours than they were usually working pre-JobKeeper. This decision appears to fly in the face of what Federal Attorney General Christian Porter said at the time of introducing the new JobKeeper legislation. “Nothing in the temporary changes to the law to facilitate JobKeeper payments allow an employer to compel anyone to work morethan their usual hours”.FWC appeared to rely on the fact that the employer applied a blanket 25 hour working week across all employees for very specific operational reasons tied to that business and did not specifically target individual casual employees to arrive at this perhaps ‘counter intuitive’ decision.

We remain cautious about the continued application of this decision and in particular recommend against requiring workers to do extra hours solely on the basis of matching those additional hours to the provision of JobKeeper payments.

FWC continues to remind employers that each case will turn on its facts in determining what is “not unreasonable”. Accordingly, we continue to recommend seeking specific advice before implementing any JobKeeper enabling direction.