Mathias Cormann (WA, Liberal Party, Vice-President of the Executive Council) Share this | Hansard source

The government will oppose these amendments. The workplace flexibilities provided for by this bill will assist employers who are continuing to experience financial distress as a result of the COVID-19 pandemic—overwhelmingly small businesses—to help them stay afloat and to keep their employees in a job. This includes employers who no longer qualify for JobKeeper but who continue to experience financial distress, a cohort that is referred to as legacy employers, many of whom will be unable to put their employees back on full-time hours and duties without having to cut jobs. This is particularly likely given the recent impact of the Victorian outbreak on the Australian economy, ongoing restrictions on businesses and economic uncertainty more broadly.

These flexibilities were developed in close consultation with a range of stakeholders, including union movement and industry and employer group representatives. The bill will allow legacy employers greater flexibility so they can keep people employed and their businesses afloat. All of the flexibility measures in the law as it stands are accompanied by a suite of comprehensive safeguards for employees, reflecting the close consultation with stakeholders, including the union movement, in the design of these provisions. These safeguards will continue under the bill, alongside some new safeguards applying specifically to employees of legacy employers.

Under the safeguards, employees of legacy employers cannot be stood down to zero hours under the provisions, but must still work at least 60 per cent of their pre-COVID ordinary hours and no less than two hours in a day on which they do work. Any direction issued by an employer must be reasonable. The employer must give notice to and consult with the employee or their representatives about the direction, and the direction must be put in writing. The Fair Work Commission is also available to resolve disputes about these provisions.

Directions to reduce hours can only be given where the employee cannot be usefully employed for their normal hours or days of work. Directions about duties of work and location of work require the employer to have information before that leads the employer to reasonably believe that the direction is necessary to continue the employment of one or more employees of the employer. Existing protections within the fair work system, including unfair dismissal rules, general protections, antidiscrimination laws, and work, health and safety all continue to apply as per usual. Crucially, none of the temporary Fair Work Act changes can reduce an employee's hourly rate, and any penalty rates or allowances applicable to hours actually worked must always be paid as usual.

Significant penalties apply under the Fair Work Act to employers who fail to meet their obligations or otherwise misuse the JobKeeper directions. The extension of the powers is temporary, and the provisions will be automatically repealed on 21 March 2021, with all terms and conditions reverting to normal on that date as though no direction or agreement had ever been made.