To support the operation of the JobKeeper scheme, temporary JobKeeper provisions have been added to the Fair Work Act. These provisions give employers increased flexibility to manage their workplaces during the impact of coronavirus. The provisions started on 9 April 2020 and apply until 29 March 2021, with some changes from 28 September 2020.
Employers may be able to access the JobKeeper provisions if they are:
- A qualifying employer: employers who qualify for the JobKeeper scheme and are receiving JobKeeper payments for their employees; or
- A legacy employer: employers who previously qualified for the JobKeeper scheme but no longer qualify, or choose not to participate, from 28 September 2020.
Qualifying employers
Employers who qualify for the JobKeeper scheme can give their eligible employees JobKeeper enabling directions. This means they may be able to 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.
The JobKeeper provisions also allow these employers to make agreements with their eligible employees to change their days and times of work.
JobKeeper enabling directions or agreements that are already in place on 27 September 2020 keep applying after this date as long as the employer continues to qualify for the JobKeeper scheme and the requirements to give a direction or make an agreement continue to be met.
JobKeeper enabling directions or agreements stop applying when they’re cancelled, withdrawn or replaced (including by a Fair Work Commission order), or on 29 March 2021 (whichever comes first).
Legacy Employers
From 28 September 2020, Legacy employers can continue using some of the extended JobKeeper provisions. You qualify as a legacy employer if you:
- previously participated in the JobKeeper scheme, but no longer participate from 28 September 2020
- demonstrate at least a 10% decline in turnover for a relevant quarter by getting either a:
- 10% decline in turnover certificate from an eligible financial service provider, or
- if you’re a small business, getting a statutory declaration.
Legacy employers can:
- issue JobKeeper enabling stand down directions (with some changes)
All stand down directions issued prior to 28 September end on 28 September. New Stand down directions must be issued for after that date.
A legacy employer can use a JobKeeper enabling stand down direction to direct an employee, that they previously received JobKeeper payments for, to temporarily:
-
- not work on 1 or more days that they usually work
- work for a shorter period than the employee usually works on a particular day or days
- work less hours overall than the employee usually works.
This means a legacy employer can temporarily reduce an employee’s days or hours of work. However, JobKeeper enabling stand down directions made on or after 28 September 2020 can’t:
-
- result in an employee working less than 2 hours on a work day
- reduce a full-time or part-time employee’s hours of work to less than 60% of their ordinary hours as at 1 March 2020 (their ordinary hours before the impact of coronavirus).
- issue JobKeeper enabling directions in relation to employees’ duties and locations of work
Contact us on Maeve@labourlaw.com.au or 0417 451 638 if you need some assistance with how to comply with the requirements to give a stand down direction or make an agreement.
