This has caused employers to reportedly incur increased costs because they have needed to replace a subsidised worker with a non-subsidised worker – ie. one who was not employed as at 1 March 2020 and eligible for the JobKeeper wage subsidy.

What can employers do in this situation?

1. Establish whether your employee is employed on a casual or permanent basis

This is important. It is an essential feature of casual employment that a casual worker has the right to refuse any given shift. This is because each time a casual employee is offered and accepts a casual shift, it is a separate engagement.

So, in the case of a casual employee, there will need to be a pattern of continued refusals beyond the right of the employee to refuse any given shift, before an employer could reasonably conclude that the pattern reveals an unwillingness to be ready, willing and able to accept casual engagement.

For permanent employees (whether full or part-time) the position is a little easier. Whilst we do not suggest moving to give a direction and discipline such an employee after only one refusal, it may be that, depending on the circumstances, a direction to perform work can be given relatively quickly which is lawful and reasonable.

2. Enquire as to the reason for refusal

Many employees will have legitimate reasons for being unable to work, especially during these times. For example, many employees may need to access carer's leave or may need to request flexible working arrangements to take account of circumstances that are affecting their capacity to perform work during their usual hours.

Even when an employee is not taking leave, you will need to be careful not to impose a work requirement that disadvantages an employee with a protected attribute under equal opportunity legislation. If you do, you, as employer, will bear the burden of proving that the requirement is reasonable in all the circumstances, if a claim of unlawful indirect discrimination is made.

3. Ensure duties are safe and appropriate

If the duties are what the employee used to perform pre-pandemic, then they should be within that employee’s skills and competencies.

If they are different duties, you may be able to give a direction under section 789GE of the Fair Work Act 2009 to an employee on JobKeeper to perform those duties, provided they are (amongst other things) safe and within the employee’s skills and competencies (and you consult and confirm the direction in writing, etc).

Of course, an employee may lawfully refuse to perform duties where it is not safe to do so. So, have you ensured that the workplace (whether the employee’s home or your work premises) is safe? If returning to the physical workplace, do you have COVID-19-safe processes and procedures in place, following your industry guidelines available from Safe Work Australia?

If it is the employee’s home, have you carried out an audit (usually remotely or by questionnaire) of their home to ensure that it is safe for the performance of the employee’s duties?

4. Formalise your request as a direction

If you have satisfied yourself that there is no legitimate basis for the employee’s absence or refusal to work; that what you are requiring them to do is within their skills and competences; and that where you are requiring them to do it is safe, then it might be time to issue a formal direction.

Employers can discipline employees for failure to obey directions, but only if those directions are both lawful and reasonable.

So, it won’t be lawful or reasonable (for example) to direct a casual employee to accept a shift in circumstances where they have refused one or two shifts previously. They have a right to do that because they are casual employees.

Depending on the circumstances, it may be lawful and reasonable to give a direction in those circumstances to a permanent full or part-time employee.

For casuals, if you have tried offering shifts over various times, with varying combinations of hours and days to a casual employee (for instance after enquiring as to what shifts they can work, if they have made themselves unavailable for others), and they are still refusing, then you are more likely to be able to demonstrate that a direction to accept a shift and perform work is lawful and reasonable.

What is not clear is the relationship between a JobKeeper direction to perform duties under section 789GE of the Fair Work Act and the right of a casual employee to refuse any given shift.

We think the safest option is to offer a range of shifts before taking any further steps in the case of a casual employee.

A direction should be carefully worded and given (if appropriate) with reference to the “JobKeeper enabling directions” powers given to employers under the recent amendments to the Fair Work Act 2009.

5. What happens next?

If an employee, whether casual or permanent, refuses a lawful and reasonable direction, then the employer can move to terminate their employment. If their employment is terminated, then the employee will no longer qualify for the JobKeeper wage subsidy.

The importance of any direction being in writing, lawful and reasonable cannot be over emphasised. This is recognised in the Fair Work Act itself, and also at common law.

In particular, if the employee is being directed to perform different duties, and you are relying on the JobKeeper enabling directions provisions to do so, the direction will need to be necessary to continue the employment of one or more of your employees.

So knowing why you are giving the direction; advising the employee why you need them to perform duties; ensuring that what you are requiring them to do is both safe and within their skills and competences and finally, reducing everything to writing and keeping careful notes is absolutely vital. Above all, ensure that the employee does not have a legitimate reason to refuse to work. Legitimate reasons are many and varied, and protected by both anti-discrimination and the Fair Work legislation. It is absolutely vital that a proper, documented and considered process is followed to ensure that your employee does not have a legitimate or protected excuse for refusing to work before moving to more formalised steps.