Posted on 15/4/2021
One of the major concerns for businesses impacted by COVID-19 was how to manage reduced staffing requirements due to business downturn. The temporary amendments made to the Fair Work Act 2009 back in March 2020 essentially provided employers with greater flexibility to be able to temporarily stand down staff, reduce working hours, change working days, vary an employee’s duties or vary the employee’s location of work. What this meant was that businesses were able to retain staff during business downturn, when they may otherwise have been forced to consider redundancies or terminations.
Now, with JobKeeper having come to an end on 27 March 2021, the Fair Work Act no longer provides for these JobKeeper Enabling Directions to be issued, and employers must reinstate employees’ normal “pre COVID” terms and conditions of employment. This could mean any one (or a combination) of the following:
You will need to retrieve employees’ contracts of employment and check what their normal contracted hours are.
You may be considering reducing an employees’ working hours permanently, if your business is still experiencing a downturn. If so, you can only do this by agreement with the affected employee (and this should be documented in writing). It may be that employees are willing to reduce their hours, but if they are not, any decision to unilaterally reduce working hours on a permanent basis should be considered very carefully – and it would be wise to seek advice first.
We have all heard stories of businesses who were required to “pivot” as a result of COVID-19, and JobKeeper Enabling Directions meant an employer could lawfully direct an employee to perform different duties (as long as they had the skills and it was safe for them to do so). After 27 March 2021, these employees must now be returned to their normal duties. Again, if you wish to keep the changes to their duties put in place post COVID, you can do this by agreement with the employee.
Employees must be returned to their original work location, where possible. Depending on the wording in an employment contract, Award or enterprise agreement employers may still have the ability to require employees to work at different locations, even after the end of JobKeeper. If their normal work location is no longer open or there are no available duties for them at their normal work location, redundancy may need to be considered.
Without a doubt, one of the most significant organisational changes that employers faced during and post COVID-19 was the huge increase in employees working from home. This trend has continued even with life returning to a “new normal” in most states and territories, with a newfound expectation by employees that they will maintain the flexibility to work from home.
Flexible working arrangements, including working from home, can be an incredibly valuable “perk” to attract and retain quality people. And with the technological advances and support available, combined with a global shift in longstanding attitudes towards working from home, the historic barriers to working from home have certainly been weakened – if not removed altogether.
However, the operational requirements of your business and the requirements of an employees’ specific role are also important factors to consider when deciding whether to maintain working from home arrangements. These decisions should be supported by a robust policy and proper guidance for managers to ensure a consistent and fair approach.
With the end of the Government economic support provided by JobKeeper, business cash flow and financial viability must be closely examined. This will typically include a close analysis of all business overheads, including wage costs. Many employers are taking this opportunity to undertake a review of their workforces to determine how to best position themselves for the future and to ensure their sustainability. Inevitably, this may lead to the difficult decision to reduce employee headcount. Carrying out redundancies post-COVID in a fair, compliant and commercial manner is complex, and getting it wrong can be costly – always seek advice before proceeding down this path.
With a background in legal practice, Cecilia has developed strong technical expertise in all matters relating to workplace law, including awards, contracts, disciplinary matters, investigations, equal opportunity and HR policy development.