Stood down, reduced hours, JobKeeper – understanding worker rights during COVID-19

As early childhood education and care (ECEC) services around Australia adjust to the many changes caused by the COVID-19 pandemic, educators are grappling to understand workplace issues they may not have encountered before, such as being stood down, or having to adjust their working hours to “fit” with payments from the JobKeeper package. 

The Sector has prepared some general information to support educators and others employed in ECEC to understand these terms, and to learn more about the obligations of their employer during this time. 

Please note, the advice in this article is general in nature and does not constitute legal advice. Employees are advised to make their own inquiries and seek independent advice (including the appropriate legal advice) on whether it is suitable for their circumstances.

Stood down

An employer may find themselves in a situation where they cannot employ a worker because of reasons beyond their control. 

When an employee is stood down, they stop working, and are not paid by their employer. However, they are still employed by the business, and have entitlements to leave accrual and other supports. Being stood down is different from being made redundant or being terminated. 

Under the Fair Work Act, an employee can be stood down from their role if they can’t be usefully employed because of a stoppage of work that the employer can’t reasonably be held responsible for.

For example, severe weather or a natural disaster, such as the recent bushfires, may have caused an ECEC service to be shut down, and this could trigger the Act’s stand down clause. 

Given that the Federal Government announced restrictions on business and social gatherings to help slow the spread of COVID-19, businesses affected by these restrictions can now lawfully stand down employees without pay under the Fair Work Act.

Reduced hours

Many ECEC settings are requesting that educators and others employed in the service adjust their hours to suit the JobKeeper amount of $750 each week ($1,500 per fortnight).

When an employer wishes to make changes to a roster or to ordinary hours of work, they must first discuss this with the employee. In order to be compliant with their obligations, an employer must: 

• Provide information about the change (what the change will be, when it will happen) 
• Invite the employee to give their view about the impact of the change
• Consider their view about the impact of the change.

Employees should be sure that they understand the changes, agree with them, and have some form of documentation confirming the change. Awards and industrial agreements often provide a mechanism for employers to have some flexibility and discretion in directing employees to work a varying pattern of hours, however these should be used in conjunction with an employee/employer contract. 

JobKeeper 

The JobKeeper Payment is a payment made to eligible businesses and not-for-profits affected by COVID-19 to support them in retaining employees. 

Eligible businesses that elect to participate will receive a payment of $1,500 per fortnight per eligible employee to support the people they employed as at 1 March 2020 who are retained in employment. 

Where an employee was previously earning less than $1,500 per fortnight (before tax), or has been stood down, the employer must provide the employee at least $1,500 per fortnight (before tax). Where an employee earns more than $1,500 per fortnight, employers can use the payment to subsidise the employee’s wages. Self-employed individuals will also be eligible to receive the JobKeeper payment.

JobKeeper payments commenced 30 March 2020, and will run until 27 September 2020, at this stage. Participation in the JobKeeper program is determined by the employer, and is administered by the Australian Taxation Office (ATO).

Only certain employees are eligible for JobKeeper payments. The criteria are as follows:

• the employee is currently employed by the eligible employer (including those stood down or re-hired); 
• the employee is a full-time or part-time employee, or a casual employed on a regular and systematic basis for longer than 12 months as at 1 March 2020; 
• the employee was aged 16 years or older at 1 March 2020; 

• the employee was an Australian citizen, the holder of a permanent visa, or a Special Category (Subclass 444) Visa Holder at 1 March 2020; 
• the employee was a resident for Australian tax purposes on 1 March 2020; and 
• the employee is not in receipt of a JobKeeper Payment from another employer. 

Further information and support 

Employees who are members of a Union may wish to consult with the Union in relation to their rights at this time. For those who are not Union members, the FairWork Ombudsman website contains information about COVID-19 and employment. 

The Sector maintains a dedicated register of information relating to COVID 19, which may be accessed here.