The Coronavirus Economic Response Package (Jobkeeper Payments) Amendment Bill 2020 passed the Federal Parliament on Tuesday 1 September, extending the temporary JobKeeper provisions of the Fair Work Act until March.
The Act extends the JobKeeper payment scheme and the temporary JobKeeper provisions of the Fair Work Act, until 28 March 2021, albeit in a revised form. The Act creates two broad categories of employers who can access particular flexibilities under the Fair Work Act in certain circumstances from 28 September 2020:
- Employers who are eligible for JobKeeper payments after 28 September 2020 (qualifying employers); and
- Employers who did receive one or more JobKeeper payments in the period prior to 28 September 2020, but no longer qualify for a payment after 28 September 2020 (legacy employers).
This guide aims to assist legacy employers with utilising the modified Fair Work Act flexibilities from 28 September 2020, including by providing notification and consultation checklists and draft letters for each of the JobKeeper enabling directions available to legacy employers (duties, location, reduction in hours/days).
As the economy reopens the payment will be tapered in the December and March quarters to encourage businesses to adjust to the new environment, supporting a gradual transition to economic recovery, while ensuring those businesses who most need support continue to receive it.
A two-tiered payment will also be introduced from 28 September 2020, to better align the payment with the incomes of employees before the onset of the COVID-19 pandemic.
Qualifying employers
- The Act extends the operation of the temporary JobKeeper provisions in Part 6-4C of the Fair Work Act until 28 March 2021 for those employers who remain eligible for JobKeeper 2.0.
- This means employers who qualify for JobKeeper 2.0 can continue to issue JobKeeper enabling directions to employees to work reduced hours or days, undertake alternative duties, or work at an alternative location, or request an employee to work different days/times to their ordinary hours.
- However, the flexibilities concerning annual leave will be repealed at the start of 28 September 2020 per the original repeal date. These include the ability for an employer to request an employee take accrued annual leave, and to agree with employees for double annual leave to be taken at half pay.
- If an employee was given a request under the JobKeeper provisions to take annual leave, the employee is not required to comply with the request to the extent that the request relates to taking paid annual leave beyond the end of 27 September 2020. Note this only applies to agreements about annual leave made under JobKeeper (section 789GJ) – any other annual leave arrangements an employee or employer have in place at this time can continue unaffected.
Legacy employers
- Legacy employers who were entitled to a JobKeeper payment for an employee under JobKeeper 1.0 and who have a certificate issued by a financial services provider (or self-certified where the employer is a small business with less than 15 employees) stating they have experienced a 10% decline in turnover will have access to modified flexibility measures from 28 September 2020.
- Disputes can be brought before the FWC about whether an employer holds a 10% decline in turnover certificate for a relevant period, or whether the certificate was issued by an eligible financial service provider, but the FWC cannot otherwise consider the 10% decline in turnover test.
- Legacy employers can give employees who previously received a JobKeeper payment JobKeeper enabling directions in relation to duties and location of work and can request employees work different days and times of work (so long as the request does not require the employee to work less an 2 consecutive hours in a day).
- Legacy employers will also be able to give JobKeeper enabling stand down directions so long as an employee’s hours are reduced to no less than 60% of their ordinary hours of work (as at 1 March 2020) and an employee is not required to work less than two consecutive hours in a day (minimum engagement requirement).
- Legacy employers have slightly different notification and consultation obligation to qualifying employers. They must give employees seven days written notice before issuing a direction and have expanded consultation requirements which largely mimic the model consultation term in 2.09 of the Fair Work Regulations.
The passage of the JobKeeper legislation will also see an extension to the vital workplace flexibility that has been available for businesses receiving JobKeeper payments. Similar flexibility will also be provided to legacy JobKeeper businesses where their turnover remains between 10-30 per cent down.
