The Fair Work Commission has rejected arguments that an employer’s JobKeeper-enabling direction was unreasonable because it disproportionately affected permanent workers. It also required some casuals receiving JobKeeper to work more hours.
Cash-in-transit company Prosegur Australia has experienced a 30–40% reduction in work since February 2020 and a 65% decrease in revenue since March, compared to before COVID-19. Specifically, work at its Moorooka Depot in Queensland has reduced by 35%.
In April and then again in June, the employer told Moorooka depot employees that due to the reduction in work, they would all be offered a minimum of 25 hours’ work per week.
The Transport Workers’ Union of Australia Queensland Branch applied to the FWC on their behalf, arguing this JobKeeper enabling direction was invalid because the employer didn’t consult employees.
Further, it claimed the direction unfairly and disproportionately affected permanent employees, because full- and part-time workers regularly worked up to 50 hours and 30–35 hours per week respectively.
It asked the FWC to set aside the direction and instead order the employer to:
- direct a proportionate percentage reduction in hours for all employees, so the financial burden was shared equally;
- not require any employee to work more hours in a week or fortnight than they did pre-COVID;
- genuinely consider requests for secondary employment; and
- genuinely consider employees’ requests not to work certain days, or to work reduced hours.
Deputy President Peter Sams found that in both April and June the employer and the TWU met for about an hour to discuss the directions, making it “difficult to accept” the Union was not simply arguing it found the directions unreasonable.
Further, the employer sought feedback from employees about the directions, but only received a few enquiries and no formal objection over the five-week proposal period, he found.
“In my view, the claim the [employer] was not interested in the views or feedback from employees is not supported by the reality,” he said, noting it was his opinion that it engaged in genuine consultation.
Deputy President Sams also found that, on a rolling average basis, all full- and part-time employees were working more than 30 hours a week, while no casual employees were doing so. “Thus, it cannot possibly be said that permanent full-time and part-time employees are working 25 hours a week.
“For full-time employees, weekly hours are close to or exceed minimum award hours of 38 hours a week. Accordingly, I consider that [the employer’s] JobKeeper-enabling direction was not unreasonable.”
Unreasonable to refuse increased hours
The TWU’s request for employees not to be required to work more hours than they did pre-COVID raised a general question as to whether it was unreasonable for an employer to require employees to increase their hours of work on different days or at different times, Deputy President Sams said.
Two casual employees told the Commission they felt pressured to make themselves more available as a result of the employer’s direction.
In analysing the Government’s intentions in introducing Part 6-4C (Coronavirus Economic Response) into the Fair Work Act, specifically section 789GG, Deputy President Sams said he didn’t believe Parliament intended to prohibit an increase in employees’ hours of work compared to their ordinary hours, as it did in prohibiting a reduction in hours of work.
“It follows that absent other factors going to an unreasonable request, it will be unreasonable for an employee to refuse a request to increase his or her hours of work compared to their ordinary hours of work,” he said.
“Given all the changing variables, it seems entirely reasonable to me that while some employees might work more hours than 25, and others less, that the stated intention of providing as far as practicable, a minimum of 25 hours for all employees, is the only balanced, rational and practical decision to have been made.”
TWU’s early position “curious”
Deputy President Sams noted that early in the dispute, the TWU proposed that all permanent employees remain on their pre-COVID hours, with whatever was left being allocated to casual workers.
He said this was a “rather curious proposition”, given the ACTU’s current campaign to have all affected casual employees paid JobKeeper payments and continue to work.
“In my view, any enabling direction in the current circumstances, which guarantees that permanent employees retain their pre-COVID-19 hours, with the result that long term regular casual employees receive few, or no hours at all, would not only be unfair and unreasonable, but contrary to the spirit of legislative purpose of the COVID-19 amendments.”
