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News Article

Clear definitions needed on “reasonableness” in pandemic-hit workplaces: CQU academic

Published:16 July 2020

Dr Victoria Lambropoulos is CQU Head of Laws.

Australian Government measures to prevent widespread job losses due to COVID-19 restrictions have reframed employers’ rights to “stand down” employees.

A CQUniversity law academic says the new powers are leaving employers and employees feeling uncertain about their rights.

Dr Victoria Lambropoulos is Head of Laws which is part of the newly formed College of Law, Justice & Criminology at CQU. She is also a barrister of the Victorian Bar. Dr Lambropoulos has outlined the radical amendments in an article for a special COVID-19 edition of the Australian Business Law Review.

The changes to the Fair Work Act 2009 (Cth) enacted from 9 April 2020 include new rights for employers to vary working days and duties, reduce working-day hours, reduce working days overall, and reduce annual leave obligations.

“In many of these cases, the new laws state that the employee cannot ‘unreasonably refuse’ the request – but reasonableness is very difficult to define, especially in an unprecedented pandemic,” Dr Lambropoulos said.

“Even in normal circumstances, the concept is pretty slippery and open to interpretation.”

Dr Lambropoulos said the Government’s broad reference to “reasonableness” will leave employers and employees to “fumble through, the best way they can, so that they come to informal agreements”.

Alternatively, if they cannot agree they will go to the Fair Work Commission to decide what is reasonableness. This can be an expensive process with or without lawyers involved!

Since April, the Fair Work Commission has made nearly 90 dispute resolution decisions relating to JobKeeper .

In that time, more than 3.5 million workers have accessed the $1500 fortnightly JobKeeper payment through their employer.

Even if the temporary provisions are repealed Dr Lambropoulos says the challenge of defining “reasonableness” in workplaces won’t go away any time soon.

“This is a term that’s applied across the Small Business Dismissal Code, and it basically gives the Fair Work Commission discretion in how they want to interpret it,” she explained.

“In a time of prolonged business closures and a likely slow recovery even after the pandemic, we’re going to see a lot more stand downs, redundancies and dismissals to come – we need to know the rights of employees and employers can be balanced effectively by this concept of ‘reasonableness’.”