JobKeeper flexibilities in the Fair Work Act were imperative: TRMC

An independent review of the temporary industrial relations flexibilities introduced to support the JobKeeper scheme has found that they were crucial in keeping Australian businesses afloat and workers in jobs during the pandemic, according to The Real Media Collective (TRMC) general manager of IR, policy and governance Charles Watson.

As part of its response to the economic effects of COVID-19, the Federal Government introduced the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020.

In addition to the JobKeeper payment subsidy scheme, the amending legislation introduced temporary variations to the Fair Work Act 2009, which permitted employers who were recipients of JobKeeper payments to utilise a range of workplace flexibilities including JobKeeper enabling stand down directions for JobKeeper eligible employees, along with the ability to request employees to take annual leave, reduce ordinary hours of work, and change duties and work locations.

“As the negative effects of COVID-19 hit, TRMC called on the Federal Government to implement measures that would ensure momentum in the economy and our industry,” Watson said.

“From our perspective, such measures were an imperative. Although the resulting JobKeeper scheme and related flexibilities may not be perfect, and have required some readjustment, they have been critical steps to help avoid a lengthier recession.”

As part of introducing those temporary amendments the Minister for Industrial Relations was required to affect an independent review of the operation of those provisions.

During the review, Nous Group consulted with employer and employee representatives, as well as the Fair Work Ombudsman and Fair Work Commission. They also used relevant survey and other data on the use and impact of the temporary amendments. The final report of the independent review was tabled in Parliament on 20 October.

Highlighted outcomes of the independent review

Nearly all surveyed employers said the flexibilities had been “important” or “essential” to maintaining their operations (between 84 and 98 per cent depending on the measure they used). Employers gave similar feedback about measures that helped to keep employees connected to their business.

Some other relevant data highlights include:

  • Almost 98 per cent of employers confirmed the crucial nature of those amending provisions in helping their businesses pivot towards recovery
  • Decreased demand and related societal restrictions on operating required many businesses to reduce working hours and staffing to stay viable. An estimated three out of four employers who accessed the JobKeeper scheme had used at least one of the temporary industrial relations flexibilities
  • Although decreased demand lead to underemployment, there has only been a moderate increase in unemployment so far, this year
  • The number of employees who remain employed but were working fewer hours (due to no work, not enough work, or being stood down) peaked at approximately 1.8 million in early April and dropped to 1.2 million in early June
  • The Fair Work Commission has reported that the number of disputes about the provisions was relatively low
  • Related disputes or queries generally arose as a result of misunderstanding rather than a deliberate attempt to flout the rules
  • Employees have generally been supportive of their employers use of related provisions
  • The relatively lower number of complaints and disputes dealt with by the Fair Work Commission was further evidence that the scheme had worked as intended
  • Communication or miscommunication between employers and employees has significantly impacted the successful implementation of related provisions in workplaces

Watson mentioned that unions surveyed for the review generally acknowledged the imperative for the flexibility related provisions and commended the relative ease with which they were implemented for the most part.

He said unions have generally acknowledged the flexibilities allowed employers to reallocate available hours more equitably among workers, rather than standing down some employees and not others.

However, Watson added that all the union representatives consulted for the review argued for more explicit guidance on how to interpret and apply various provisions, and for a wider view to be taken on what might constitute ‘reasonable grounds’ for declining a request by an employer.

The print industry’s experience

According to Watson, many of the reflections in the government review of the JobKeeper scheme and related flexibilities align to the views held by operators in the printing and related industry.

The Real Media Collective June 2020 Industry Insights survey reported:

  • Survey respondents experienced between a 20 to 90 per cent downturn in work, with an average downturn of 55.28 per cent
  • 90.48 per cent of businesses in the industry experienced considerably negative effects as a result of COVID-19
  • Almost 50 per cent experienced moderate to considerable levels of supply issue disruptions
  • 85.01 per cent said they believed there was a need for ongoing business assistance to ensure future viability

Given those business conditions being experienced by the industry:

  • Over 90 per cent of survey respondents believed the JobKeeper scheme and related flexibilities were necessary, and would achieve their intended outcomes of keeping workers in employment, in the short to medium term.
  • Over 80 per cent of respondents believed the JobKeeper scheme and related flexibilities would assist in keeping workers in employment for the longer term.
  • 85 per cent said they believed the the outcomes of the scheme represent economic value for the cost

“The government’s recent review of the scheme, along with our own surveying and feedback from members and the industry, evidences the temporary provisions gave businesses a greater degree of flexibility so as to quickly adapt to the conditions they faced and on an individual basis,” Watson said.

“Our industry’s experience has been similar to many other industries in that regard, whereby the JobKeeper subsidy scheme was essential, but the temporary flexibilities legislated into the Fair Work Act ensured it was a workable scheme.”

Watson also mentioned that the print industry’s experience is also comparable to other industries whereby the uptake and implementation of both the subsidy scheme and related workplace flexibilities were used consistently across businesses of all sizes.

“Although no one particularly likes doing them, the outcomes of our industry survey in June provided the data, experiences and conditions being faced by the industry so as to allow us to inform government, particularly on the need to extend those measures beyond the original September end date,” he said.

“Speaking with colleagues who operate in the IR and HR space in other industries, miscommunication or lack of clarification between employers and employees was the most significant factor that impacted the successful implementation of related provisions in their workplaces resulting in industrial disputation.

“By comparison, in an industry as large, diverse, and geographically spread as ours, the overall industry has done what it does best, which is to communicate.

“Our industry sought advice early, quickly absorbed the details, implemented only the measures that were needed and did so in a consistent manner, and communicated clearly with workers. As a result, we have seen negligible disputation arise in our industry compared to others.”

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