Boss forced worker onto JobKeeper because she ‘earned more’ than co-workers

Katie has been in her job for a year – but after the coronavirus pandemic hit, a bizarre request from her employer left her fuming.

Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn tackle your legal rights when it comes to workplace rip-offs.

QUESTION: When coronavirus hit I had been working full-time for a company for 12 months. Several of us were stood down whereas others, who had only been employed for a few weeks and were still in probation, kept working. Those employees still working are doing full-time work and overtime. It seemed totally unfair so I questioned management about it only to be told it was because I earned more than the others. I am still on a stand down receiving JobKeeper payments and now they have asked me to work at a new facility temporarily which is 1.5 hours from home. They have also said I will only receive the JobKeeper payment for this work, which is less than my usual weekly wage. I feel like I’m being ripped off. – Katie, Hobart

ANSWER: There have been some changes to the law that allow employers to temporarily change certain work conditions to help them deal with the financial impact of COVID-19 and keep workers employed.

We can see you are concerned that your employer is making decisions that unfairly apply to you and treating you differently to your co-workers.

Once an employer qualifies for the JobKeeper scheme, they can change your work conditions either by agreement or by issuing what’s called a JobKeeper Enabling Direction.

These directions allow your employer to do all of the things they have done or are proposing, including:

• Changing where you are located for your work

• Changing your duties

• Stand you down

A stand down under JobKeeper may include a direction to not work at all or to work fewer hours or days than your ordinary working hours.

However, just because your employer has issued these directions doesn’t mean they were made lawfully.

The directions are subject to a number of restrictions. They must:

• Be ‘reasonable’ in all the circumstances

• Comply with any requirements to provide notice or consult with you, as would be normally required in your workplace

• Be in writing

Just like in your situation, it is common that some employees will be stood down and some won’t be.

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Once an employer qualifies for JobKeeper, they can change your work conditions either by agreement or by issuing a JobKeeper Enabling Direction. Picture: iStock

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How many employees can be stood down depends on the amount of work there is to be performed. Each employee must be providing some economic value to the employer.

For your stand down to be lawful, you must be unable to be usefully employed for your normal days or hours during the stand down period because of business changes caused by the COVID-19 pandemic.

On this basis your employer can choose which staff are stood down. They must not make such decisions based on unlawful grounds, such as age, disability, gender or race. Length of service with an employer is not a relevant factor.

Unfair dismissal, general protections and anti-discrimination laws all continue to apply with respect to your employer’s directions.

The direction to return to work at another location in return for receiving the JobKeeper payment is another issue to consider.

If your normal wage is more than the JobKeeper payment and it is proposed that you work your usual hours, you should be receiving your full pay with the JobKeeper payment subsiding part of your income.

When considering an alternate working location your employer should ensure that the location is suitable to perform your duties. This means they must not require you to travel a distance that is unreasonable in all the circumstances.

It is hard to tell if the commute of 1.5 hours is excessive without knowing how far it is to your usual workplace and more about your personal circumstances. If you think it is unreasonable you should outline this in writing to your employer.

The duties they are requiring you to do at the new facility must also be reasonably within your skill and competency and be reasonably within the scope of your employer’s business.

If after reading this you think you have been asked to do something unreasonable or have been treated unfavourably there may be a number of different legal avenues available to you.

For example, if your pay is going to be reduced without your agreement and with an expectation you will work the same hours you may have a breach of contract claim.

You may have a claim under anti-discrimination legislation if, for example, your employer has made the direction based on the fact that you are over 60 years old, have caring responsibilities or have a health issue.

Any of the directions issued by your employer to stand down, change your duties or location of work can be disputed before the Fair Work Commission.

We suggest getting advice quickly so you know where you stand.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.

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