Bosses warned to beware of redeployment ‘pay trap’ in efforts to keep valued employees in jobs during COVID crisis
Coming up with new ways to keep valued employees busy so they still have a job during the COVID crisis could end up in strife for bosses, even if they have good intentions.
Careers
Don't miss out on the headlines from Careers. Followed categories will be added to My News.
Well-meaning employers are exposing themselves to legal action as they try to keep staff working during the COVID-19 pandemic.
While most Australians are right now just grateful to keep their jobs, Employsure managing director Edward Mallett said some might soon realise they have been incorrectly paid.
Asking a chiropractor to do reception work was unlikely to create a wage issue but a hospitality worker asked to clean and redecorate for reopening or an administration worker asked to gather collateral for marketing campaigns might find they qualified for a different award and therefore a higher pay.
“I am worried about wages claims,” Mr Mallett said.
“People say ‘OK I was happy to have a job but was I being paid the right amount?’ There will be lots of questions that come out in the wash up.”
Maurice Blackburn principal and employment lawyer Giri Sivaraman said businesses on the JobKeeper scheme had more power to change workers’ duties and although he had not yet seen a legal case as a result, he expected they would come.
Mr Sivaraman predicted some employers would be confused as the scheme was not straightforward, others would panic and act before thinking things through, and others again would try to take advantage of the situation.
“There were unscrupulous employers before COVID-19 and there will be unscrupulous employers during COVID-19,” he said.
“In my experience as an employment lawyer for 20 years – and I have never been short of work – there will be some who do the wrong thing.”
Before an employer could start issuing directions to an employee outside the scope of their normal duties, Mr Sivaraman said certain conditions applied.
The employee must have any licenses or qualifications required for their new duties; the new duties must be safe, including in the context of COVID-19; and the employer must genuinely believe the direction is necessary to continue the employment of one or more of their employees.
“(New duties also) have got to be reasonably within the scope of the employer’s business operations – a boss cannot send someone off to mow his lawns,” Mr Sivaraman said.
“And finally, the employer still has to meet the hourly rate of pay guarantee, which means the employee should be paid the greater of either what they would have normally been paid had the direction not been given, or the rate of pay applicable to the duties they are now required to perform.
“If you are directed to do something which means that under an award you would normally earn less, you are not allowed to have your pay dropped.
“If you are effectively told to act up in higher duties, then the employer should be paying that higher pay.
“A worker cannot be penalised by a change of duties direction.”
His advice for any worker who believed they had been underpaid was to join their union then either talk to their employer or contact a lawyer or The Fair Work Ombudsman.