Australia’s COVID-19 safety net JobKeeper is at the centre of a massive increase in the number of workers raising issues with unfair dismissals, as Treasury concedes miscalculations and devils emerge in the detail.
The ABC reports the case of medical student and pub worker Emma Scealy, who says she was told she was among staff being employed under JobKeeper – providing she agree to work 20 to 25 hours per week, doing cleaning. The $750 payment was a significant increase to her usual pay.
“I usually only work two or three shifts a week, so it would’ve been 10 to 15 hours more than my average,” she said.
Scealy joined four other workers who together broached the question with their employer, Customs House, as to whether they had to do the additional hours to get the payment. They reportedly did not say they would not work the hours.
Customs House had originally cited it would have to let some staff go due to cashflow issues, and less than a week after the workers met with management all five were counted in those receiving a termination notice. The Hotel denies the staff terminations were related to their questioning.
Scealy has filed an unfair dismissal claim over the termination. A conciliation hearing is scheduled to take place next week.
Should the Hotel lose the case, it may not only be forced to reinstate workers but then miss being back-paid the JobKeeper payments and will likely also face a fine for breaching industrial relations laws.
The case highlights considerable confusion in the hospitality industry around the crisis program, originally projected to cost the government and country $130 billion.
Australian Hotels Association national CEO Stephen Ferguson explains their understanding is that employees may be asked to work additional hours so long as the request is reasonable.
He notes that financing to cover wages until the ATO reimbursement – coupled with uncertainty around worker eligibility and prospect the business would not be repaid – led to “tremendous problems for employers”.
The regulations stipulate workers can refuse anything they think is unreasonable, notably if the work conflicts with other responsibilities or is outside their usual skillset.
But there are also rules around the issuing of employee directions, with employers required to first consult the employee (or representative) at least three days prior to a ‘JobKeeper enabling direction’. There must also be written record of this consultation.
If the employer has not abided by all conditions, it is quite likely an appeal against unfair dismissal will be upheld.
The Fair Work Commission (FWC) reports the number of unfair dismissal applications received in April 2020 was 65 per cent higher than April 2019. For perspective, the Commission proffered that terminations may have increased ten-fold on what would be anticipated had the pandemic not occurred.
It’s understood the majority of the increase relates to JobKeeper disputes, particularly dismissals and stand-downs, as well as changes to employees’ working hours and eligibility of some casual workers.
The uncertainty bolsters cries to expand the scheme to include more of those slipping through the cracks – especially after Friday’s joint announcement by the Treasury and ATO that a “reporting error” means the original $130 billion cost of JobKeeper, covering over six million workers, is now expected to come in at only $70 billion, and cover 3.5 million workers.