Extension of JobKeeper provisions under the Fair Work Act

Extension of JobKeeper provisions under the Fair Work Act

The legislation to extend the JobKeeper scheme passed Parliament on the 1 September 2020 and as part of this the JobKeeper provisions under the Fair Work Act were also extended with some changes.
The extended provisions changes came into effect from the 28 September 2020. These provisions are in place until 28 March 2021.
With the JobKeeper scheme helping employers who have been significantly affected by coronavirus to keep paying their employees. It allows for some employers to access increased flexibility to help manage their business by using the JobKeeper provisions under the Fair Work Act.

Fair Work Act JobKeeper provisions extension

The extended provisions give qualifying employers who are receiving JobKeeper payment for their employees and who continue receiving them after 27 September 2020 the ability to continue using the JobKeeper provisions 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).

Any employer who has now qualified for the JobKeeper subsidy and receive JobKeeper payments for the first time on or after 28 September 2020 can also use these JobKeeper provisions.

If the employer had in place agreements to change an employee’s days or times of work on 27 September 2020 they can keep applying after this date as long as the employer continues to qualify for the scheme and the requirements to give a direction or make an agreement are met.

The JobKeeper enabling directions or agreements will stop applying when they are cancelled, withdrawn or replaced which also includes by a Fair Work Commission order, or on 29 March 2021.

Legacy Employers

The extended provisions allow some employers who are known as legacy employers, to continue to use some of the Fair Work Act JobKeeper provisions with some changes and if they meet certain conditions.

These conditions are:-

  • previously participated in the JobKeeper scheme, but are no longer participating from 28 September 2020
  • Demonstrating at least 10% decline in turnover for relevant quarter, by obtaining a certificate from an eligible financial service provider, or a statutory declaration for a small business.

Legacy employers can only use these JobKeeper provisions in relation to employees they received JobKeeper payments for before 28 September 2020.

Meeting the 10% decline in turnover test each quarter

Legacy employers need to satisfy the 10% decline in turnover test ad have a certificate or statutory declaration for each relevant quarter. If the employer does not meet the 10% decline the Fair Work Act JobKeeper enabling directions 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.

Legacy Employers and Fair Work Act JobKeeper Directions and Agreements

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

  • Issue Fair Work Act JobKeeper enabling stand down directions (with some changes)
  • Issue Fair Work Act JobKeeper enabling directions in relation to employee’s duties and locations of work
  • Make agreements with employees to work on different days or at different times (with some changes).

Any directions or making agreements from a legacy employer must follow the enhanced notice and consultation requirements under the Fair Work Act JobKeeper provisions.

Legacy employers who are subject to Fair Work Act JobKeeper enabling direction or agreement written notice on whether:

  • They have obtained a certificate or statutory declaration for the relevant quarter
  • The Fair Work Act JobKeeper enabling direction or agreement with continue or end

Fair Work Act JobKeeper enabling stand down directions

Legacy employers can continue to issue Fair Work Act JobKeeper enabling stand down directions to their eligible employees after 27 September 2020, provided that the direction dose note:

  • 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.

Fair Work Act JobKeeper enabling directions to change duties or work location

Legacy employers can continue to give a direction to eligible employee’s to change their duties or work location.

Fair Work Act JobKeeper – Agreements to change days or times of work

Legacy employers can continue to make agreements with eligible employee’s to change days or hours of work. The agreement cannot result in the employee working less than 2 days on a work day.

Agreements with employees to take Annual leave

Under the previous Fair Work Act JobKeeper provisions, employers who qualified could make agreements with eligible employees to take annual leave. This is also included taking annual leave on half-pay.
These provisions have now been repealed and stop from the 28 September 2020. Any agreement that was made under these provisions stop applying from this date.

As from the 28 September 2020, employers and employees need to follow the usual rules for taking and requesting annual leave, and also those set by an award or agreement.

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