Further to our previous updates which mainly focused on the Fair Work Commission’s response to the COVID-19 pandemic, the Western Australia Industrial Relations Commission (WAIRC) has issued the JobKeeper General Order (JobKeeper Order) and the Leave General Order (Leave Order) which allows private-sector employers and state system employees greater flexibility to manage their working arrangements during the pandemic and specifically to support the JobKeeper Scheme (the Orders).
Broad overview of the General Orders
At the outset, it is important to determine whether the Orders apply to your business or employees. Generally, the Federal system governed by the Fair Work Act 2009 (Cth) (FW Act), applies to corporations (constitutional), corporate trustees and Federal government departments (Federal Employers). Conversely, the State system governed by the Industrial Relations Act 1979 (WA), applies to sole traders, partnerships, family trusts (with a non-corporate trustee) and State government departments (State Employers). The Orders apply to all State Employers (who qualify for the Job Keeper Scheme) and those employed by those employers (excluding public sector employees, who are subject to various Public Sector Labour Relations Circulars). Broadly, the Orders mirror the FW Act changes as a result of the enactment of the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 (Cth) which took effect from 9 April 2020 and address various shortcomings in the Minimum Conditions of Employment Act 1993 (WA). These changes include:
- An ability for employers to stand down employees where they cannot be usefully employed;
- An ability for employers to alter work duties;
- An ability for employers to alter the location of work; and
- An employer may request that an employee’s workdays or times be altered and an employee must (i) consider the request, and (ii) not unreasonably refuse the request.
The measures under the Leave Order include:
- Two weeks of unpaid leave where an employee is required to self-isolate or is otherwise prevented from working due to COVID-19;
- An ability for employers and employees to agree to double annual leave at half pay; and
- An ability to take annual leave in advance provided both the employer and employee agree.
These changes (which were overall slightly delayed compared to the FWC’s response), now allow for State Employers to navigate their current workforce’s return to work with greater flexibility and certainty.
Application of Orders and existing Industrial Awards or Enterprise Agreements
The Leave Order makes it clear that where an existing industrial instrument (award or agreement) contains a more beneficial term compared to the Leave Order, then the award / agreement will apply. However, in circumstances of any inconsistency between the terms of the Leave Order and any award / agreement, then the Order will prevail. This is a particularly relevant where State Employers need to manage leave requests from their employees due to downturn of business, and to ensure a gradual, viable return to full operations for businesses.
Disputes
There are now greater powers vested in the WAIRC by the JobKeeper Order to resolve any disputes that may arise between parties, which may include conciliation, arbitration and enforcement orders, which were previously not available.
Key takeaways
- As Western Australians are currently in ‘phase-2’ of the State Government’s 4-phase roadmap to bolster our economy, State Employers have the means to adjust employees’ work duties and locations as necessary to facilitate a gradual kick-start to their business, particularly in hospitality, retail and manufacturing.
- Employers could also consider their options available under the Leave Order to retain employees until we see a greater ease of restrictions on or around 18 June 2020.
- Employers should continue to discuss the needs of the business with their employees to minimise the likelihood of disputes thereby reducing the potential intervention of the WAIRC.
- All consultation requirements under any applicable award / industrial agreement continue to apply.
This update has been provided as general information only, and State Employers (or employees) should seek advice on their particular circumstances. Due to the pace of change of the law related to the COVID-19 crisis, the accuracy of any legal advice may be subject to change at short notice.
Please contact our employment and workplace relations team on (08) 9321 0522 should you require any advice on the practical implications of these changes, or to provide general guidance and clarity regarding your rights and obligations under the Orders.
