Extension of JobKeeper Provisions and the Fair Work Act

On 1 September 2020, in line with the ongoing COVID-19 pandemic situation, legislation to extend the JobKeeper scheme passed Parliament. As part of this, the JobKeeper provisions in the Fair Work Act were also extended with a few significant changes.

These new provisions take effect from 28 September 2020 and stop on 28 March 2021.

The JobKeeper scheme helps employers who have been significantly affected by coronavirus to keep paying their employees. It also gives certain employers increased flexibility to help manage their business by using the Fair Work Act JobKeeper provisions (JobKeeper provisions).

Under the new provisions, employers who continue to qualify for JobKeeper after 27 September 2020 can continue to:

• Give their employees JobKeeper enabling stand down directions (for example, a direction to work less or no hours)
• Give their employees JobKeeper enabling directions (for example, a direction to change duties or work location)
• Make agreements with their employees to change their days or times of work (for example, an agreement that an employee will work on different days)

One significant change though is that qualifying employers will no longer be able to use JobKeeper provisions to agree with their employees to take annual leave (including at half pay). Those provisions will stop applying from 28 September 2020. From 28 September 2020, you will need to follow the usual rules for taking and requesting annual leave, under your applicable industrial instrument.

If you have JobKeeper enabling directions to change an employee’s days or times of work already in place on 27 September 2020, they will continue to apply after this date as long you continue to qualify for the scheme.

For these employers, JobKeeper enabling directions or agreements stop applying when they’re cancelled, withdrawn or replaced, or on 29 March 2021 (whichever comes first).

Legacy employers

If you previously qualified for the JobKeeper scheme, but no longer qualify from 28 September 2020 and can demonstrate at least a 10% decline in turnover for the previous quarter, you can become a legacy employer and are still able to use some of the JobKeeper enabled provisions.

To demonstrate the 10% decline in turnover you will need to obtain a certificate from an eligible financial service provider, or provide a statutory declaration for small businesses.

To use the JobKeeper provisions in a particular quarter, small business legacy employers need to have a statutory declaration before the start of that quarter.

If you don’t have the required certificate or statutory declaration, then all JobKeeper enabling directions or agreements will automatically end on:

• 28 October 2020, if the above conditions aren’t met for the September 2020 quarter
• 28 February 2021, if the above conditions aren’t met for the December 2020 quarter

Under the new provisions, legacy employers can, for previously eligible employees:

• Issue JobKeeper enabling stand down directions (with some modifications)
• Issue JobKeeper enabling directions in relation to employees’ duties and locations of work
• Make agreements with employees to work on different days or at different times (with some modifications)

Any legacy employer issuing directions or making agreements must follow the enhanced notice and consultation requirements under the JobKeeper provisions.

Legacy employers also need to give their employees who are subject to a JobKeeper enabling direction or agreement written notice about whether:

• They’ve obtained a certificate or statutory declaration for the relevant quarter
• The JobKeeper enabling direction or agreement will continue or end

Any JobKeeper enabling directions or agreements that legacy employers already have in place will end on 27 September 2020. You will need to reissue or make new directions and agreements. 

Legacy employers can continue to issue JobKeeper enabling stand down directions to their previously eligible employees after 27 September 2020as long as the direction:

• Does not result in an employee working less than 2 hours on a work day
• Does not 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

Additionally, Legacy employers can continue to give a direction to change a previously eligible employee’s duties, work location or make agreements to change a previously eligible employee’s days or hours of work. The agreement can’t result in the employee working less than 2 hours per day.

The Fair Work Commission continues to have the power to deal with disputes related to the JobKeeper provisions under the extended scheme.

For more information about the extension of JobKeeper payments, visit the Australian Taxation Office (ATO) website – JobKeeper Payment .

Please get in touch with our team of experts at HR Gurus for assistance with templates around JobKeeper enabled stand downs and in ensuring you are compliant with new changes.