You could be stung: Employment rights eroded by JobKeeper

Fair Work Act reforms have blurred workplace definitions, says CQU Academic.

CQU Head of Law Dr Victoria Lambropoulos says workplace law reforms have made things difficult for employers and employees since Jobkeeper was introduced.

THE rights of Gladstone employees and employers, plus millions of others have been eroded due to JobKeeper payment related reforms, says a CQUniversity academic.

CQUni Head of Law Dr Victoria Lambropoulos said a clearer definition of “reasonableness” was needed in pandemic-hit workplaces due to law reforms.

Under the reforms to the Fair Work Act, enacted from April 9, there are new rights for employers to vary working days and duties, reduce working-day hours, reduce working days overall, and reduce annual leave obligations.

Since the Fair Work Act reforms, the Fair Work Commission has made nearly 90 dispute resolution decisions relating to JobKeeper.

More than 11,000 locals from Flynn and more than 3.5 million Australian workers have accessed the $1500 fortnightly Jobkeeper payment through their employer, according to the ABS.

Dr Lambropoulos, who is also a barrister, said government measures to prevent widespread job losses amid COVID-19 restrictions had reframed employers’ rights to “stand down” employees.

“In many of these cases, the new laws state that the employee cannot ‘unreasonably refuse’ the request – but reasonableness is very difficult to define, especially in an unprecedented pandemic,” she said.

“Even in normal circumstances, the concept is pretty slippery and open to interpretation.”

The government’s broad reference to “reasonableness”, Dr Lambropoulos said, would leave employers and employees to “fumble through, the best way they can, so that they come to informal agreements”.

“Alternatively, if they cannot agree they will go to the Fair Work Commission to decide what is reasonableness,” she said.

“This can be an expensive process with or without lawyers involved.”

Even if the temporary provisions are repealed Dr Lambropoulos says the challenge of defining “reasonableness” in workplaces won’t go away any time soon.

“This is a term that’s applied across the Small Business Dismissal Code, and it basically gives the Fair Work Commission discretion in how they want to interpret it,” she explained.

“In a time of prolonged business closures and a likely slow recovery even after the pandemic, we’re going to see a lot more stand downs, redundancies and dismissals to come – we need to know the rights of employees and employers can be balanced effectively by this concept of ‘reasonableness’.”

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