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36 BUSINESS THROUGH INNOVATION LEGAL JOBKEEPER FOR PHARMACY OWNERS IBy Peter Clinch, Principal, Clinch Long Woodbridge Lawyers. ntroduction of the JobKeeper scheme and amendments to the Fair Work Act 2009 in response to the payments have had mixed effects on pharmacy owners. While JobKeeper has provided a means of financial relief to pharmacy businesses in need, it has caused some uncertainty in relation to the status of the legal rights and obligations of employers and employees. JobKeeper enabling directions: what are they? JobKeeper payments have been introduced to support businesses affected by the economic impact of the coronavirus by assisting with the costs of wages. Additionally, to support the implementation and operation of the JobKeeper scheme, further temporary provisions have been added to the Fair Work Act. These provisions apply to employers that have qualified for the JobKeeper scheme and their eligible employees. The provisions began on April 9. Notably for pharmacy owners, these provisions enable qualifying employees to give what is known as ‘JobKeeper enabling directions’ to eligible employees. This means that an employer can temporarily: • Stand down an employee (including by reducing their hours or days of work). • Change an employee’s usual duties. • Change an employee’s location of work. • In order for the JobKeeper enabling direction to be compliant, an employer must: • Notify the employee in writing at least three days before the JobKeeper enabling direction (unless the employee genuinely agrees to a shorter time). • Consult with the employee about the direction and keep a written record of the consultations. • Give the employee the direction in writing. Even in circumstances where the employer has given a JobKeeper enabling direction as mentioned earlier, the employer must pay the employee either $1500 (before tax) per fortnight or their usual pay for work performed (including payments for any annual leave, public holiday pay and penalty rates – whichever is more). Importantly, even under a JobKeeper enabling direction, an employer is not permitted to reduce the employee’s hourly base rate. In these situations, and provided the conditions for the directions are met, employers don’t need their employees to agree to the changes. However, the situation is a little different with requests to perform duties on different days. In this situation, an employer cannot direct employees to work on different days or at different times and instead needs to request that they do so, reaching an agreement on the changes with them. Employees cannot unreasonably refuse to make an arrangement to change their workdays. The arrangement cannot have the effect of reducing the employee’s number of hours of work compared with the employee’s ordinary hours of work. Can an employer terminate an employee on JobKeeper? As set out above, the JobKeeper scheme is meant to assist employers in retaining staff. Notwithstanding this, an employer is not precluded from terminating an employee in circumstances where the termination of the employment is lawful. This includes the employer not being in breach of contract, equal opportunity, discrimination or other legislation, and in compliance with any applicable award (including the Pharmacy Industry Award 2010), or enterprise agreement of employment agreed that covers the employee, and there must be a valid reason for the termination. Notably, in considering redundancies in response to a business turndown, an employer still needs to comply with the consultation and notice provisions of the Fair Work Act, which also includes protections against being dismissed because of discrimination, a reason that is harsh, unjust or unreasonable or another protected right. These protections continue to operate in relation to employees impacted by coronavirus and cannot be dispensed with. Termination of employees, especially in the current circumstances, carries an inherent risk and should only be performed in strict accordance with the relevant legal requirements and modern award. For an update on JobKeeper changes please visit: retailpharmacymagazine. com.au/jobkeeper-changes-announced/ By Peter Clinch. Principal, Clinch Long Woodbridge Lawyers Peter Clinch is Principal at Clinch Long Woodbridge Lawyers, a Sydney-based law firm with a focus on pharmacy. Peter and his colleague Stephanie Bellman have assisted many pharmacists with a broad range of issues affecting their businesses. Inquiries: pclinch@clw.com.au or 02 92794888. RETAIL PHARMACY • AUG 2020