WA state system employers to get access to JobKeeper flexibilities

In Western Australia two industrial relations systems continue to operate: the state industrial relations system which broadly covers sole traders, partnerships, some local government agencies, some trusts and some non-for-profit organisations (State System Employers), and the federal fair work system which covers most incorporated entities.

On 30 March 2020 the Federal Government introduced the JobKeeper stimulus package under which eligible employers can apply for a Government funded wage subsidy.  As part of the JobKeeper Scheme, changes were also made to the Fair Work Act 2009 (Cth) (FW Act) to provide employers with greater flexibility to manage their workforce with the aim of preserving jobs.

While private sector State System Employers can apply for JobKeeper payments provided they meet certain criteria, they are unable to utilise the additional workplace flexibilities introduced under the Scheme.

General Order

To address this lacuna, on 14 May 2020 the Western Australian Industrial Relations Commission (WAIRC) issued a decision confirming that a new General Order will be introduced containing similar temporary measures to those introduced into the FW Act by the JobKeeper Scheme to provide private sector State System Employers with the same flexibilities during the COVID-19 pandemic.

In summary, the Jobkeeper General Order[i] provides for the following measures in circumstances where a JobKeeper payment is payable to an employee:

• employers may stand down employees (either fully or partially) if they cannot be usefully employed due to changes to business that are attributable to the COVID-19 pandemic or government initiatives to slow the transmission of COVID-19;
• employers can direct employees to perform different duties or perform duties from a different location, including from the employee’s home, provided that it is necessary to continue the employment of one or more employees; and
• an employer can request that an employee agree to work on different days or at different times, and the employee must not unreasonably refuse that request.

Any directions issued must be reasonable and are subject to an obligation to provide written notice at least three days before the direction is given and to consult with employees.

The Jobkeeper General Order requires employers to pay eligible employees at least the $1,500 JobKeeper payment or, if higher, their usual wages in respect of any work the employee performs.   It also sets out mechanisms for how any disputes can be resolved through the WAIRC or WA Industrial Magistrates Court.

The Jobkeeper General Order is expected to take effect in the coming days and will remain in place until 28 September 2020.

Other interim COVID-19 measures

In addition to the JobKeeper General Order the WAIRC issued a separate General Order on 14 April 2020[ii] in response to the COVID-19 pandemic that allows most state system employees to make flexible leave arrangements. The measures include:

• the right to take up to two weeks (or longer if agreed with their employer) unpaid pandemic leave if the employee is required by government or medical authorities, or acting on the advice of a medical practitioner, to self-isolate or otherwise cannot work because of measures taken by the government or medical authorities in response to the COVID-19 pandemic;
• the ability to agree with their employer to take twice as much annual leave at half pay; and
• the ability to agree with their employer to take annual leave in advance of the entitlement accruing.

These measures will continue until 31 July 2020, but may be extended beyond that date.

[i] Minute of Proposed COVID-19 Jobkeeper General Order
[ii] COVID-19 Leave Flexibility Decision and General Order