A recent Fair Work Commission decision has once again muddied the waters about employers powers under JobKeeper.
In a case involving staff at the cash-transit business Prosegur, FWC Deputy president Peter Sams ruled it was reasonable for the employer to increase the hours of some casual and part-time employees to 25 hours per week.
While this rule upends the previous understanding that employers could only reduce the hours of employees on JobKeeper, it does not mean an organisation can increase staff hours in whatever way they see fit.
HRM asked Michael Byrnes, employment law partner at Swaab, what implication this decision has for employers. He says it hinges on the definition of a “reasonable” request.
“It is important to note that it very much turns on the circumstance of the case and the question of what is reasonable, having regard to the situation of the employees and the operational needs of the business,” says Byrnes.
While a lifeline for a lot of organisations, JobKeeper has caused a lot of administrative anxiety for HR and payroll experts across the country. Questions about “reasonable requests” have plagued it from the beginning.
As HRM previously reported, toy retailer Kidstuff asked some of their employees to triple their hours to be eligible for JobKeeper. However, the retail union, SDA NSW, argued the request was unreasonable.
In the case of Prosegur, the business wanted all employees, regardless of employment type, to work 25 hours a week. For some casuals this was an increase in hours from before JobKeeper.
Deputy president Sams decided this was reasonable, saying there was a business case for doing so and citing the fact that one of the company’s casual workers had longer hours than this pre-COVID while another had only slightly less. He also said the alternative would have caused a “rostering nightmare”.
Byrnes says employers should be careful of reading too much into the case because it’s not a free pass.
“It’s probably only going to be in rare circumstances where an employer can ask an employee to work more hours than previously, and it may well be that the circumstance of the business means it’s not actually a reasonable request.”
“A request for a full-time or part-time employee to increase their hours beyond what they were doing previously is less likely to be found to be a reasonable request [than a casual]. So this decision has a particular impact on casuals more than others.”
Casual employment has been under the microscope lately. The recent Workpac v Rossato case highlighted the need for employers to understand what defines a casual. An important feature of casual employment is the power to refuse or swap shifts.
“Hopefully [the FWC’s] decision will help employers navigate a casual employee’s right to reject hours or shifts and the need for business to start gearing up again.
“But HR shouldn’t assume they can increase the hours of casuals just because of this decision, I would caution reading too much into this and deciding it is a free pass for employers to compel casual employees to work more hours.
“If they do decide to roster them on for more hours, then they need to be in a position to argue that the rostering is reasonable in regard to the employee’s individual circumstances and the operational needs of the business.”
Obstinance and abandonment
Restaurants and retailers across the country have complained of the struggle to get employees back into the workplace. Unlike some office jobs where staff could work from home, many people in these sectors couldn’t work at all during the lockdown. JobKeeper helped these businesses keep staff while they were closed, but now employers are saying staff don’t want to return.
As the Australian Financial Review reports, in some instances employees are expressing a genuine concern about catching COVID-19 – this is particularly persuasive if they are immunocompromised or live with someone who is. But there have also been reports of employees that argue they shouldn’t have to work longer hours than they did before the pandemic, since the money comes from the government and not their employer.
The nature of JobKeeper is such that disagreements between employers and their workers can be harder to navigate. Employers can’t so easily dismiss and replace staff members they feel have abandoned work because new hires would not be eligible for JobKeeper.
For organisations in that circumstance, Byrnes has advice.
“Employers need to be firm in the direction if they’re asking an employee to return to work. If it comes to it, particularly with permanent employees, it may be the case that an employee has abandoned their work.
“If an employee has abandoned their employment, then the employment relationship has come to an end and neither the employer nor employee will be eligible for JobKeeper.”