What To Do If Your Employees Are Refusing To Come Back To Work

Published June 01, 2020 (last updated July 22, 2020)

Employers have the right to ask staff to work where reasonable during the COVID-19 pandemic, according to Employsure, Australia’s leading workplace relations company.

COVID-19 has forced many businesses across the country to restructure how they operate, in order to reduce the threat of the disease spreading among staff.

Some businesses have shifted their employees into working from home, while those who don’t have that option might have new health and safety measures in place.

The Federal Government’s $130 billion JobKeeper wage subsidy has allowed thousands of businesses to continue to operate and pay staff, who would have otherwise been out of a job. However, there have been cases where some employees have been leveraging the scheme to avoid working reasonable hours or to come back to work altogether.

“The program is helping thousands of employers keep staff on their books, but unfortunately in some cases business owners are being taken advantage of,” said Senior Employment Relations Adviser Erin Gaffney.

“We’ve been seeing this in certain cases with casual workers, who are now earning more than they usually do thanks to being topped up well above their normal wage via JobKeeper’s $1500 a fortnight.

“While many cases of casuals refusing to work are legitimate, many aren’t giving any good reason at all, and that in turn in putting bosses in an unfair position.

“In general, where a genuine casual is continuing to reject shifts due to the coronavirus, their employer cannot force them to come to work and cannot discipline them for this. They can however be disciplined for breaches of procedure, such as non-compliance with absence notification policies.

“For regular and systematic casuals who are not sick, and are under no special circumstances such as pregnancy or a pre-existing health condition and don’t face any health and safety risks in the workplace, an employer can direct them to attend work.”

What Should Employers Do?

If someone on JobKeeper is refusing to do their contractual shifts with you, it’s no different than if they didn’t turn up to work in normal circumstances. This can lead to a disciplinary issue, and you hope in the course of that procedure that all parties can see sense which results in the employee coming back to work.

In the case of a regular and systematic employee with 12 months service, the employer is eligible and confirmed to be receiving JobKeeper and employee is nominated, the employer may be able to enact JobKeeper enabling directions under the Fair Work Act as well.

“These directions include reducing their hours of work, duties and location of work, without the employee’s consent. For this to happen, several conditions need to be met,” said Ms Gaffney.

“The direction must be responsive to business changes attributable to COVID-19 or government initiatives to slow the transmission. An employer can only give the direction if the worker cannot be usefully employed for their normal hours.

“The employer can only give the direction to a worker who they have received a JobKeeper payment for, and they must consult them about the direction. It must be reasonable in the circumstances. Their rate of pay cannot be reduced and the JobKeeper payment must continue to be passed on.

“Finally, the employee must be provided with at least three days’ notice of the intention to give the direction and it must be in writing. If they refuse, the employer can make an application to the Fair Work Commission to resolve the dispute.”

A Watch Out For Employers – Increasing Employee Hours:

The amendments to the Fair Work Act do not openly give employers a right to unilaterally increase an employee’s hours of work. They only allow a direction to be issued to reduce an employee’s hours, where certain requirements are met.

A permanent employee’s hours of work could therefore only be increased in accordance with the provisions of an applicable industrial instrument, or by mutual agreement.

A casual employee’s hours of work could only be increased from their usual hours where the increase is reasonable and mutually agreed.

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