Changing duties, location or days & times of work under the JobKeeper scheme

Published 1 May 2020 | Updated 20 May 2020

To support the implementation and operation of the JobKeeper scheme external-icon.png in Australian workplaces, temporary provisions have been added to the Fair Work Act (Fair Work Act JobKeeper provisions). They apply to employers who have qualified for the JobKeeper scheme and their eligible employees.

The Fair Work Act JobKeeper provisions enable qualifying employers in certain circumstances to:

  • give a direction to change an employee’s usual duties
  • give a direction to change an employee’s location of work
  • agree with an employee to change their days and times of work.

A qualifying employer can give an eligible employee a JobKeeper enabling direction or make an agreement under the Fair Work JobKeeper provisions from 9 April 2020 (when the Fair Work JobKeeper provisions started). The provisions end on 28 September 2020.

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Who can use the Fair Work Act JobKeeper provisions

To give a direction or make an agreement under the Fair Work Act JobKeeper provisions, an employer needs to:

  • qualify for and enrol in the JobKeeper scheme
  • be entitled to JobKeeper payments for the employee to whom the direction or agreement applies
  • be a national system employer in the Fair Work system.

Directions about changing duties and work location under the JobKeeper scheme

The Fair Work Act JobKeeper provisions allow qualifying employers to give directions to their eligible employees in certain circumstances. These directions are known as ‘JobKeeper enabling directions’. JobKeeper enabling directions include JobKeeper enabling stand down directions and directions to change duties and work location.

If an employer gives an employee a JobKeeper enabling direction, the employee has to comply with it.

Directions to change usual duties

When can an employer make a direction to change usual duties?

Under the Fair Work Act JobKeeper provisions, a qualifying employer can give an eligible employee a JobKeeper enabling direction to perform any duties that are within their skill and competency. To do this, the employer needs to ensure that:

  • the duties are safe (including considering the nature and spread of coronavirus)
  • the employee has any required licenses or qualifications to perform the duties
  • the duties are reasonably within the scope of the employer’s business operations.

The direction won’t apply to the employee unless the employer reasonably believes that the direction about duties is necessary to continue the employment of 1 or more employees. To determine whether it’s necessary, it doesn’t matter that the employer could have given a similar direction to another employee.

An employer needs to make sure that the direction is reasonable, taking into account all of the circumstances, including any caring responsibilities that the employee has. If a direction is unreasonable, it doesn’t apply to an employee.

The employer can only direct an employee to do work that applies to the operation of the business they are employed at. For example, an employer can’t direct an employee to do odd jobs unrelated to the operation of the business.

An employee’s base pay rate can’t be reduced while a direction to change usual duties is in place. If the temporary new duties attract a higher base pay rate (for example, under an applicable award or enterprise agreement), the employee needs to be paid the higher pay rate.

Example: Direction to change usual duties – new duties within employee’s skill and competency

Oliver is employed full-time as a leading hand in a Sydney warehouse business. The warehouse business is affected by coronavirus. It is enrolled in the JobKeeper scheme and is receiving JobKeeper payments in relation to Oliver.

Given the downturn in business, Oliver’s employer no longer needs Oliver to perform his leading hand duties. Instead, Oliver is directed to carry out forklift driving duties temporarily. Oliver’s employer is able to make this JobKeeper enabling direction because:

  • Oliver has experience driving forklifts and holds the appropriate licences
  • the driving duties are safe and can be performed with appropriate social distancing measures in place
  • the driving duties are within the scope of the warehouse’s business.

While this JobKeeper enabling direction is in place, Oliver’s other employment conditions (such as hours and days of work) haven’t changed. Oliver already gets paid more than a forklift driver, so his hourly pay rate doesn’t change.

How to make a direction to change usual duties

Employers need to:

  1. notify the employee in writing at least 3 days before giving the JobKeeper enabling direction (unless the employee genuinely agrees to a shorter timeframe)
  2. consult with the employee (or their representative) about the direction and keep a written record of the consultation
  3. give the employee the direction in writing.

Example: Direction to change usual duties - changed duties are within business operations

Cassie works part-time at Arendelle Eats, a corner store in Adelaide. She usually works Monday, Wednesday and Friday from 3pm to 6pm.

Because of coronavirus, Arendelle Eats isn’t getting any customers during the time Cassie usually works.

Arendelle Eats has qualified for the JobKeeper scheme and is entitled to receive JobKeeper payments of $1500 each fortnight for Cassie. On Monday, Arendelle, the owner of Arendelle Eats, explains the impact that the coronavirus outbreak has had on the business, and explains that instead of serving customers, Cassie will temporarily need to clean all the shelves and products that the store sells.

Arendelle confirms that Cassie will be provided with the protective gear and cleaning equipment to do her new duties safely. Arendelle gives Cassie a letter explaining her intention to give her a JobKeeper enabling direction to do different duties. Arendelle keeps a written record of their discussion and, on Friday, gives Cassie a written direction explaining her new duties.

Arendelle can make this direction under the JobKeeper change of duties provisions, because:

  • the new duties are within Cassie’s skill and competency, and are safe
  • the new duties relate to the business operations of the corner store
  • Arendelle reasonably believes that the direction is necessary to continue Cassie’s employment.

Example: Direction to change usual duties – the changed duties aren’t within business operations

Janine owns a retail fashion business and has one part-time employee, Mary.

Janine’s business has experienced a substantial reduction in turnover because of coronavirus. It qualifies for the JobKeeper scheme and Janine is entitled to JobKeeper payments for Mary.

Janine tells Mary that the store will be closing for the next 6 weeks and that she can’t usefully employ Mary to work her usual duties. Janine gives Mary an advance written direction that for the next six weeks, instead of working at the shop, Mary will work her usual shifts at Janine’s house helping to look after Janine’s two children as well as cleaning and cooking for Janine’s family.

This isn’t a valid direction under the JobKeeper change of duties provisions because the new duties don’t relate to the operation of Janine’s retail business.

Janine’s direction has no effect and Mary doesn’t have to perform work at her house.

Changes to duties without using JobKeeper enabling directions

In some circumstances, an employer may be able change an employee’s duties in accordance with applicable award, enterprise agreement or employment contract. For example, recent changes to some awards provide flexibility during coronavirus for employers to make temporary directions. Go to Temporary changes to workplace laws during coronavirus for more information.

Any directions made under the new JobKeeper provisions end on 28 September 2020. Employees’ terms and conditions will revert back to what they were without the direction in place.

Directions to change location of work

Under the Fair Work Act JobKeeper provisions, a qualifying employer can give an eligible employee a JobKeeper enabling direction to perform duties at a place that is different from the employee's normal place of work. This can include the employee's home. Employers have to make sure that:

  • the location is suitable for the employee’s duties
  • the employee is not required to travel an unreasonable distance in all the circumstances (including considering the nature and spread of coronavirus)
  • it is safe for the employee to perform their duties at the new location (including considering the nature and spread of coronavirus)
  • the employee performing their duties at the new location is reasonably within the scope of the employer’s business operations.

The direction won’t apply to the employee unless the employer reasonably believes that the direction about location of work is necessary to continue the employment of 1 or more employees. To determine whether it’s necessary, it doesn’t matter that the employer could have given a similar direction to another employee.

An employer needs to make sure that the direction is reasonable, taking into account all of the employee’s circumstances, including any caring responsibilities. If a direction is unreasonable, it doesn’t apply to an employee.

How to give a direction to change location of work

Employers need to:

  1. notify the employee in writing at least 3 days before giving the JobKeeper enabling direction (unless the employee genuinely agrees to a shorter timeframe)
  2. consult with the employee (or their representative) about the direction and keep a written record of the consultation
  3. give the employee the direction in writing.

Example: Directions to change location of work must fulfil a range of criteria

Sarah runs an online mobile phone accessory business and also has stores at shopping centres in Melbourne. Raha is employed to work in the Chadstone store, to do sales and provide product information and support to customers.

Sarah’s business has suffered a significant downturn due to coronavirus and is entitled to JobKeeper payments for Raha.

Sarah’s sales report shows that sales at the Chadstone store have declined by 70% due to the impacts of coronavirus. Sales in her online store, which is run from a nearby office, have increased by 20%.

In order to continue Raha’s employment, Sarah wants to give Raha a JobKeeper enabling direction to perform her usual duties for the online store.

In deciding whether she can give the direction, Sarah considers all of the factors required to give one. Sarah decides that:

  • Raha can suitably perform his duties at the online store office
  • working at the office doesn’t require unreasonable travel
  • the office is a safe location (including with regard to coronavirus).

Sarah can give a direction. Sarah gives Raha written notice of her intention to direct him to work at the online store office, consults with Raha about the proposed direction and makes a written record of the consultation.

3 days after consulting with Raha, Sarah gives him a written direction to work at the online store office for the next 4 weeks.

Changes to work location without using JobKeeper enabling directions

An employer doesn’t have to give a JobKeeper enabling direction that an employee perform work at a different location. Some people will continue to work at their usual location or can agree to work somewhere else. Employers can also direct employees to work from a different location without issuing a JobKeeper enabling direction, if the direction is lawful and reasonable, and there is nothing inconsistent in an applicable award, enterprise agreement or employment contract. See When can employees work from home.

Any directions made under the new JobKeeper provisions end on 28 September 2020. Employees’ terms and conditions will revert back to what they were without the direction in place.

Agreements about changing an employee’s work days and times under the JobKeeper scheme

The Fair Work Act JobKeeper provisions enable a qualifying employer to agree with an eligible employee to perform their usual duties on different days or during different times. The employer needs to make sure that:

  • it is safe (including considering the nature and spread of coronavirus)
  • it is reasonably within scope of employer’s business operations
  • the employee’s usual work hours aren't reduced overall (as this requires a JobKeeper enabling stand down direction).

If an employer asks their employee to make these changes, the employee has to consider the request and can’t unreasonably refuse it. Any agreement has to be recorded in writing, such as in a letter or email.

Any agreements made under the new JobKeeper provisions end on 28 September 2020. Employees’ terms and conditions will revert back to what they were without the agreement in place.

Example: Agreement to change work days and times

Kate works part-time at a book store in Canberra. She usually works for 16 hours a week on Mondays and Tuesdays.

Kate’s employer qualifies for the JobKeeper scheme and is entitled to receive JobKeeper payments for Kate.

Because of coronavirus, the number of customers coming into the store to buy books has dropped significantly. Kate’s employer decides to start operating temporarily as an online business instead, including delivering books to customers who order online. This means Kate’s employer doesn’t need her to come into the store on her usual days.

Kate’s employer asks her to temporarily work her normal 16 hours a week over 4 days instead of 2, to prepare the online orders the store has received. Spreading the hours over 4 days instead of 2 will allow the business to prepare the orders more effectively. Kate considers the request and agrees. Kate and her employer record the agreement in writing.

This is a valid agreement because:

  • Kate’s total usual working hours each week haven’t decreased
  • the agreed change relates to the operation of the book store
  • it’s safe for Kate to work the hours on separate days.

Example: Agreement to change work days – reasonable refusal

Mark works on Saturdays as a part-time receptionist at a physiotherapy clinic in Newcastle.

Mark’s employer qualifies for the JobKeeper Scheme and is entitled to receive JobKeeper payments for Mark. Because of coronavirus, there are fewer customers booking appointments on Saturdays. As a result, Mark’s employer doesn’t need a receptionist on Saturdays.

Mark’s employer asks him if he would consider working on Fridays for the next 6 weeks, instead of on Saturdays.

Mark carefully considers the request, but tells his employer that he can’t agree to change his working hours to a Friday because he is the primary carer for his young children on that day.

Mark can refuse his employer’s request because he has a reasonable basis for why he can’t change his work day. Given Mark’s employer doesn’t currently need a receptionist on a Saturday, they may want to consider other options for Mark, such as requesting Mark to take annual leave or using a JobKeeper enabling direction to temporarily change Mark’s duties.

Asking eligible employees to work additional hours

If a qualifying employer wants to ask an eligible employee to work extra hours (in excess of their ordinary hours) while the employer is receiving JobKeeper payments, the usual requirements in the Fair Work Act apply.

This means that any additional hours need to be reasonable. An employee can refuse a request to work unreasonable additional hours. If the only reason for a request to work additional hours is to ‘match’ the amount of the $1500 (before tax) JobKeeper payment, that is not likely to be reasonable.

Employers must also comply with any other terms and conditions of employment that apply to the employee (for example under an award, enterprise agreement or employment contract). This could include overtime or other penalty rates for extra hours worked.

Under the general protections provisions of the Fair Work Act, an employer can't force (or try to force) an employee to work unreasonable additional hours, or to tell the employee who has terms and conditions set by a workplace instrument (such as an award or enterprise agreement) that they must work additional hours as a condition of receiving the amount of the JobKeeper payment.

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Example: Part-time employee usually earns less than $1500 a fortnight

Marley is a part-time nursery manager at Pumpkin’s Nursery and is employed under the Nursery Award. He works 45 hours a fortnight so he can look after his elderly parents, and is usually paid $1350 a fortnight for his hours of work.

Pumpkin’s Nursery qualifies for the JobKeeper scheme in relation to Marley. Pumpkin’s Nursery must now pay Marley $1500 each fortnight for his hours of work, even though that is more than Marley’s usual pay.

Marley doesn’t need to work any more hours to receive the full $1500. If his employer asked him to work more hours just to match the JobKeeper payment, it’s unlikely those hours would be reasonable and Marley could refuse.

However, Pumpkin’s Nursery can ask Marley to work additional hours for other reasons, and those hours may be reasonable. The Nursery is undertaking some renovations and asks Marley if he can work 50 hours each fortnight for the next month to help. In considering if the additional 5 hours each fortnight are reasonable, Pumpkin’s Nursery needs to consider factors including:

  • any risk to work health and safety arising from Marley working additional hours
  • the workplace needs of Pumpkin’s Nursery (including the need to do renovations)
  • Marley’s personal circumstances, including his caring responsibilities for his elderly parents
  • any notice it gave Marley of the need to work additional hours.

Under his award, any additional hours Marley works are paid as overtime. If Marley agrees to the request to work the additional hours, when Pumpkin’s Nursery determines how much Marley needs to be paid each fortnight, Pumpkin’s Nursery needs to include overtime in its calculations (and pay Marley more than $1500 if he is entitled to that).

More information

JobKeeper scheme

For more information for employers and employees on how to enrol for the JobKeeper scheme, who is eligible and it how it works, go to the ATO website – JobKeeper section external-icon.png.

Hours of work

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Flexibility in the workplace

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Pay rates

Use our Pay and Conditions Tool to calculate base pay rates, allowances and penalty rates (including overtime) under an award.

Enforcement and dealing with disputes

We help employers and employees understand and follow Australian workplace laws. We do this by:

  • providing information and education
  • providing tools, templates and guides
  • helping you resolve workplace issues.

Our Resolving workplace issues during coronavirus page has information and resources to help you resolve workplace disputes. It also has information about our enforcement role under the JobKeeper scheme and who can help with:

  • questions about eligibility for the JobKeeper scheme
  • disputes about directions or requests under the JobKeeper scheme.
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