JobKeeper directions must be equitable, fair and justifiable

JobKeeper directions must be equitable, fair and justifiable

In the very recent decision of Transport Workers’ Union of Australia v Prosegur Australia Pty Ltd [2020] FWCFB 3655 (13 July 2020), the Full Bench of the FWC quashed a previous FWC decision that an employer rightly issued a JobKeeper enabling direction requiring its full-time, part-time and casual employees to work a minimum 25 hours per week.

The Full Bench warned that the direction disproportionately affected full-time and part-time employees by reducing their hours (with full-time workers most affected) whilst increasing the hours worked by some casuals. 

The decision focussed on whether the direction should be nullified under section 789GK of the Fair Work Act 2009 because it was unreasonable in the circumstances. In overturning the previous decision, the Full Bench determined that a JobKeeper enabling direction must be equitable, fair and justifiable having regard to the legislative objects of such directions and the respective circumstances of the employer and employee.

The Bench determined that the previous decision did not properly take account of the relevant circumstances of the employer and employees in assessing the reasonableness of the decision and directed the parties to urgently confer ahead of a re-determination by arbitration if they fail to resolve the dispute. 

To guide the parties in seeking a resolution of the matter, the Bench outlined various “propositions” including that the impact on the statutory, award, agreement and contractual entitlements of employees affected by the direction must be considered (including any disproportionate or unfair reduction or increase in hours of various groups of employees as a result of the direction). Another guiding proposition given by the Bench was that JobKeeper directions must be also workable from the employer’s point of view. This proposition was offered in response to a proposal by the union that the hours of all workers be reduced proportionately which the Bench considered would be unworkable for the employer.

This decision comes amidst the rapidly changing restriction levels being placed on businesses as waves of the COVID-19 pandemic sweep across Victoria and NSW in particular. It highlights the need for employers to carefully consider the content of JobKeeper enabling directions and the impact that they will have on both employees as a whole and as between various groups of employees.

WR Law would be happy to assist you with understanding your rights and obligations in relation to JobKeeper enabling directions. For more articles like this, visit our website www.wrlaw.com.au and/or subscribe to our newsletter.

Transport Workers’ Union of Australia v Prosegur Australia Pty Ltd [2020] FWCFB 3655 (13 July 2020)

This article has been prepared for information purposes only and is not legal advice.  For legal advice regarding your specific circumstances, please contact WR Law directly on (03) 5499 6131 or by email admin@wrlaw.com.au.