Can I issue an eligible casual employee a Jobkeeper Enabling Stand Down Direction to work a specific number of hours per week?

Yes. The introduction of the temporary Jobkeeper amendments to the Fair Work Act 2009 (Cth) - Part 6-4C, provide employers with new Jobkeeper-related rights to change employment arrangements of employees in certain circumstances.

Section 789GDC of the temporary provisions under the Fair Work Act, enable the employer to direct an employee, including a long-term casual employee, to work reduced hours or days during a period (a Jobkeeper enabling stand down direction). Under such a direction a casual employee for example that may have worked for 4 shifts per week, may be directed to work 3 shifts per week, or where they consistently worked 25 hours per week may be required to work 20 hours per week.

In order to issue such a direction an employer would need to:

• Give the employee at least three (3) days written notice of the direction;
• Consult with the employee and their representative if they have one about the direction;
• Keep a written record of the consultation; and
• Ensure that the direction is reasonable in the circumstances.

Where a stand down is actioned by an employer, they also need to be able to demonstrate that the impacts of COVID-19 or the Government’s measures to deal with the pandemic have caused an employee to not be able to be usefully employed for any period that the employee is stood down. 

What can I do as an employer if the casual employee refuses to attend work having been issued a Jobkeeper Enabling Direction?
Prior to the COVID-19 pandemic and the introduction of the Jobkeeper scheme, casual employees have always had the right to be able to reject the offer of shifts provided by their employer. Casual employees still have that right as an eligible employee under the Jobkeeper Scheme.

However casual employees need to take into consideration the fact that if they consistently reject shifts that are offered by their employer, they cannot expect to be offered shifts into the future and will subsequently place their ongoing employment with the employee in jeopardy.    

Where a casual employee indicates that they don’t want to attend work we would recommend that the employer documents each and every occasion that the employee has rejected shifts and communicate with them to enquire as to whether they intend to continue working for the Hotel given their consistent rejection of shifts. We would recommend that communications also include information explaining that their continued rejection of shifts places their employment in jeopardy as well as their ongoing eligibility on the Jobkeeper scheme.  

Ultimately, if a casual employee continues to make them themselves unavailable to work without good reason over a reasonable period of time, potential termination of employment is an option for the employer.

Where a Jobkeeper Enabling Direction has been issued, the employer also has the right to be able to lodge a dispute with the Fair Work Commission (‘FWC’) in relation to the employee’s non-compliance with the jobkeeper enabling stand down direction.  

Any decision to terminate an employee’s employment and or lodge a dispute in the FWC needs to be treated with caution and we would recommend that you seek advice first from the AHA|SA workplace relations team.

Despite being eligible for the Jobkeeper Scheme I have a casual employee that has chosen to access Jobseeker payments rather than participate in the Jobkeeper Scheme. Do I have to provide them with hours of work?

Despite the fact that the casual employee may have been an eligible employee to participate in the Jobseeker Scheme, the employee is under no obligation to participate in the Jobkeeper Scheme if they elect not to participate.

The casual employee in this example has chosen to access Jobseeker payments from Centrelink, however this does not in itself mean that their employment with the employer has ceased. Employment will cease where the employer informs the employee that their employment has been terminated. Their termination will be reinforced through appropriate documentation such as a separation certificate and or letter of termination.

The casual employee’s employment in this example has not been terminated and they are a regular and systematic casual employee, accordingly once the trading levels increase and there are hours available for the employer to provide to the employee, then the employer will have an obligation to provide the employee with hours of work.

In the example above, what would happen if I chose not to provide the casual employee with any hours of work despite there being hours of work available?

There would be significant risks for the employer in the example above if they decided not to provide the casual employee with any hours of work when trading restrictions were lifted, despite their being hours available.

The casual employee in the example above is a regular and systematic casual that has been employed with the business for over 12 months and therefore has the ability to lodge an unfair dismissal or general protections claim under the Fair Work Act if there position is terminated.  

In an instance where a regular and systematic casual employee such as this is simply never put back on the roster, it will be deemed that their employment has been terminated. Without a valid reason for termination and without the employer undertaking a process of procedural fairness prior to termination, the employer would be exposed to significant risk in the event of an unfair dismissal or general protections claim.

With trading restrictions easing do I have to provide a casual employee with the same average hours of work that they worked prior to the shutdown?

Casual employees do not have an entitlement to a set number of hours, or an entitlement to the exact number of average hours they received prior to the shutdown. The hours that a casual employee is provided once trading restrictions are eased will be based according to the operational trading levels of the Hotel. This may mean for example that their hours gradually increase according to increases in operational demands or if there is no increase in trade it may mean that their hours remain at a low level until such time as trade picks up.

What happens if the Hotels levels of trade post the lifting of trading restrictions remain at such a low level that it is no longer viable to be able to sustain the employment of a casual employee?  

If the employment of a casual employee cannot be sustained due to poor trading levels then the employer will need to undertake an appropriate process for making the casual employee’s position redundant.

Casual employees who are employed under the HIGA are not entitled to redundancy pay or notice of termination. Casual employees under the HIGA are paid a 25% loading which is paid as compensation for annual leave, personal/carer’s leave, notice of termination, redundancy benefits and other entitlements of full-time or part-time employment.

Despite the fact that casual employees are not entitled to a notice period or redundancy pay (unless specified in an Enterprise/Collective Agreement), a casual employee’s employment can still be made redundant and the employer is still obligated to follow an appropriate consultation process in line with the consultation provisions contained in a Modern Award or Enterprise/Collective Agreement.

Employers when making a casual position redundant will also still need to consider any matters to help mitigate the effects of the redundancy such as whether the employee could be redeployed in another position within the hotel.

We recommend that if a Member needs to undertake a process of redundancy they seek advice from the AHA|SA Workplace Relations Team.

To assist with my labour costs I would like to only roster on those staff members that are eligible employees under the Jobkeeper scheme and leave those employees who are not under the Jobkeeper scheme either stood down or without shifts? Can I do this?

The introduction of the Jobkeeper wage subsidy scheme is aimed at not only keeping employees employed with their current employer, but also to assist businesses financially by helping to subsidise their labour costs.

It is understandable that employers would therefore want to have any hours worked by employees subsidised through the Jobkeeper Scheme. Employers should tread carefully however in this area to avoid any potential general protections, unfair dismissal, or underpayment of wages claims.

This is particularly evident in the case of full-time employees who are not eligible employees under the Jobkeeper Scheme. For example, an employer may choose to roster on a couple of casual employees who are under the Jobkeeper Scheme to perform hours and duties that would otherwise have been performed by the full-time employee who is stood down without pay and not on the Jobkeeper Scheme. Implementing such a practice poses risks for the employer, because they need to demonstrate that the full-time employee could not be “usefully employed” and such an argument is difficult where you have casual employees performing the full-time employee’s duties and ordinary shifts.