Looking beyond Jobkeeper

Many businesses have been able to stay afloat and continue employing staff throughout the COVID-19 pandemic largely thanks to the Federal Government’s JobKeeper scheme and the accompanying JobKeeper changes to the Fair Work Act 2009. Private practices are no exception. We have heard from members who have been grateful recipients of recent support measures.  

According to the Treasury, the first phase of JobKeeper announced in March 2020 supported more than 3.6 million workers and around 1 million businesses, with payments totalling nearly $70 billion for the 13 JobKeeper fortnights to 27 September 20201.  

The second phase of JobKeeper announced in September 2020 required a re-test of business eligibility. The Treasury indicated that more than 1.5 million workers and around half a million businesses had applications processed at the start of the second phase, meaning that around 450,000 fewer businesses and around 2 million fewer employees qualified for JobKeeper in October 2020 than in September 20202 .  

Participation in the second phase of JobKeeper was lower than forecast by the Federal Government, suggesting that business is improving and the economy is recovering. According to the ABS, Australian economic activity rose 3.3% in the September 2020 quarter3. You may have noticed an uplift in activity at your practice after the NSW Government lifted the ban on elective surgery from 1 July 2020 or as COVID-19 restrictions have been further eased. 

The second phase of JobKeeper is set to end on 28 March 2021, along with the temporary JobKeeper provisions in the Fair Work Act which have given employers more flexibility to modify their employees’ working arrangements while covered by the JobKeeper scheme. On 9 December 2020 the Government introduced a Bill proposing significant amendments to industrial relations.  Amongst other changes the Bill seeks to extend certain JobKeeper flexibilities for a further two years for the retail and hospitality industries, being those industries hardest hit by COVID-19.  At the time of drafting this article, there was no such proposal to extend JobKeeper flexibilities beyond the scheduled end date for the health industry. 

While businesses have taken significant steps to adjust to the new normal, employers should be preparing for a future post JobKeeper. This includes making plans around staffing that may not have been necessary or may have been deferred while the JobKeeper scheme has been in effect. 

Flexible working arrangements

There is no doubt that the COVID-19 pandemic has placed flexible working arrangements under the spotlight. Particularly during lockdown, employers were required to consider flexible working arrangements they may not have contemplated before.

After the flexibilities enabled by the temporary JobKeeper provisions cease, some employees can continue to request flexibility in the workplace. Some employees will still have the right to request flexible working arrangements, such as changes to hours, patterns or locations of work (including working from home). 

The Fair Work Act enables employees who have worked with the same employer for at least 12 months to request flexible working arrangements if they:

• are the parent, or have responsibility for the care, of a child who is school aged or younger

• are a carer (under the Carer Recognition Act 2010)

• have a disability

• are 55 or older

• are experiencing family or domestic violence, or

• provide care or support to a member of their household or immediate family who requires care and support because of family or domestic violence.

Casual employees can only make a request for flexible working arrangements if they are a long term casual with a reasonable expectation of continuing employment on a regular and systematic basis.

It is important to note that an employer must respond in writing within 21 days and can only refuse a request on reasonable business grounds. Such grounds can include if it would be too costly for the employer, be impossible or impractical to change other employees’ working arrangements or have a significant negative affect on productivity or customer service. Sometimes employers and employees are able to consult with each other to agree a mutually acceptable solution.  

Changes to terms of employment

The temporary JobKeeper provisions in the Fair Work Act have enabled qualifying employers to give eligible employees a JobKeeper enabling direction or agreement to reduce hours or days of work, change duties or work location or change days or times of work. These flexibilities have been aimed at providing employers with flexibility to manage the workplace during the COVID-19 pandemic.

If a JobKeeper enabling stand down direction is in place, it will end if the employer or employee no longer meet the eligibility requirements, if the direction is withdrawn, revoked or replaced or it will otherwise stop applying after the temporary JobKeeper provisions cease.  

After this point, the situation pre-JobKeeper will prevail. In accordance with basic contract principles, the terms of a contract must be agreed. This means that a party to a contract cannot unilaterally change its terms. Any changes to existing terms and conditions of employment must be agreed. This applies to any change to agreed hours, days, times of work, pay and position.  

Consultation regarding change

Some of our members were not eligible for the first stage of JobKeeper and many of our members were not eligible for the second. Even with Government support, many private practices have suffered an immense financial blow and others have had to consider shutting down.  

Many of our members have had to make, or consider making, difficult decisions about staffing and operational requirements as they deal with the economic impact of COVID-19. These decisions have not been easy and have often been a last resort to maintain practice viability. Some of these decisions relate to a reduction in hours, days and pay. Other decisions have resulted in redundancies.

When it comes to change, it is important that employers consult with employees in accordance with the consultation provisions in applicable modern awards. Such changes include a definite decision to make major workplace changes that are likely to have significant effects on employees (such as a decision to make an employee’s position redundant or undertake an organisational restructure) or a proposed change to an employee’s regular roster or hours of work (before these changes are agreed).

Failure to comply with consultation provisions may lead to adverse consequences such as penalties for breach of a modern award or exposure to unfair dismissal in the case of redundancy.

AMA (NSW) Workplace Relations Team

Since the start of the COVID-19 pandemic, we have heard from members who have been dealing with considerable financial strain. We understand the impact of COVID-19 on business has been very stressful. We are here to support our members through these challenges.

If you need assistance with workplace flexibility, change or any other matter contact the AMA (NSW)
Workplace Relations Team by emailing workplace@amansw.com.au You can also access our Workplace Relations resources on our website, including our guide “Working through COVID-19: Consultation and Redundancy”.

This article is current as at 15 December 2020.

1. The Treasurer, “JobKeeper Update”, https://ministers.treasury.gov.au/ministers/josh-frydenberg-2018/media-releases/jobkeeper-update-0 (accessed 15 December 2020).

2. Ibid.

3. ABS, “Economic activity increased 3.3% in September quarter”, https://www.abs.gov.au/media-centre/media-releases/economic-activity-increased-33-september-quarter (accessed 15 December 2020).