With strict lockdown conditions in place for South Australia for 6-14 days, it is important to understand what your rights and obligations are in regards to employment arrangements.
Rights vary greatly depending on what award employees are covered by and whether the employer is on JobKeeper or was on JobKeeper and is eligible for the Jobkeeper legacy provisions.
Where an employer is currently on JobKeeper, the employer is eligible to use Jobkeeper enabling stand down directions which can continue beyond a period of enforced lockdown within the Jobkeeper eligibility period. The direction must be notified to the employee in writing at least three days before giving the direction unless the employee agrees to a shorter timeframe. Jobkeeper enabling directions include the ability to direct an employee to temporarily:
- Not work on one or more days that they usually work
- Work for a shorter period than the employee usually works
- Not work any hours at all
If an employee is stood down using a Jobkeeper direction, their pay would be topped up to be at least the amount of Jobkeeper claimed for that employee. You can not direct an employee to take paid leave without their agreement.
For more information visit the Fairwork website here
Jobkeeper Legacy Employers
An employer is eligible to be a JobKeeper legacy employer if they received Jobkeeper between March and September and their September 2020 quarter turnover is 10% down on their September 2019 quarter. If eligible, the employer needs to get a certificate from an accountant or if they have less than 15 employees, they can sign a statutory declaration confirming that their turnover has dropped by 10% or more in the September quarter instead.
Jobkeeper stand down directions for legacy employers work similarly to Jobkeeper employers except that the direction has to be in relation to an employee who they previously received Jobkeeper payments for and any direction cannot reduce their hours to less than 2 hours on a work day or, for a full time or part time employee, it cannot reduce their hours to less than 60% of their ordinary hours as at 1 March 2020.
Therefore the Jobkeeper legacy provisions are not of much help when a business cant trade at all. More information can be found here
All other Employers
For other employers, you may be eligible to stand down employees when the business has closed because of an enforceable government direction for which you are not responsible. Before doing so, employers need to consider alternative arrangements such as whether employees can work from home or complete alternative tasks. You may also be able to agree with employees to take annual leave or direct them to take leave in certain circumstances.
The ability to direct an employee to take leave varies depending on what award they are covered by. For more information see the Fairwork website here.
The Fairwork website provides a template letter and instructions to follow for standing down employees which can be found here
If an employee is stood down and is not taking annual leave then they are generally not required to be paid but they continue to accrue annual and sick leave during this period. Employees may need to consider applying for JobSeeker payments during their stand down period.