Employee slams cafe’s JobKeeper ‘rort’
Jenny counts herself lucky to receive the $1500 wage subsidy - but her boss' request has left her wondering if she's being "exploited".
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 JobKeeper problems.
QUESTION: My boss has multiple businesses and is receiving JobKeeper payments for me to work in a cafe he owns. The cafe is now open reduced hours and I am being asked to clean for his "cleaning business". Not only this, but he wants me to increase my hours up to the value of the JobKeeper payment. It feels like a rort. Do I have any right to say no to the cleaning work but keeping my job in the cafe? I need the money and really don't want to lose my job completely. - Jenny, Gold Coast
ANSWER: Based on the information you have provided, we can't be certain if your boss is rorting the system or potentially exploiting you.
We can, however, give some general advice about your rights and the JobKeeper scheme, which will help you determine if you are potentially being taken for a ride.
By qualifying for the JobKeeper scheme, your employer must pass on the full $1500 payment to you.
It is not clear if you are working the same hours you always have, or if your working hours have decreased because of the cafe's reduced opening hours.
That said, if you do not usually earn $1500 per fortnight, you are still entitled to the full payment and do not have to increase your usual hours to receive the full amount.
There have been some changes made to the law (Fair Work Act 2009) called "JobKeeper Enabling Directions", which allow your employer to change where you are to work, what your duties are, and if necessary, stand you down.
However, any of these changes - such as to perform cleaning duties - are subject to a number of restrictions and must:
• Be reasonable in all the circumstances,
• Comply with any requirements to provide notice or consult that already apply to your employment arrangement,
• Be in writing.
When looking at the "reasonableness" of the change in duties, they should be within your skill and competency and be safe, given the nature and spread of COVID-19.
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Where a changed duty requires you to have a licence or qualification, you should have the relevant licence or qualification and it should be reasonably within the scope of your employer's business.
Your employer must also hold a reasonable belief that the change in duties is necessary for your continued employment or the continued employment of other employees.
Whether your employer can lawfully direct a change in duties will also depend on what your contract of employment, award or enterprise agreement says.
It may contain a clause permitting your employer to change your duties, sometimes without your agreement. So check your contract or industrial instrument (if you have one).
What your employer can and cannot do with respect to changing your duties may also be affected by the business structure in place and who actually employs you, for example, whether it is the cafe, the cleaning business or another entity altogether.
Any of the directions made by your employer, such as to change your duties and location of work can be disputed before the Fair Work Commission.
We suggest getting legal 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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Originally published as Aussie cafe's JobKeeper 'rort'