Employment & Safety Update – 21 October 2020

JobKeeper changes and extension

On 1 September 2020, Parliament passed legislation to extend the JobKeeper scheme until 28 March 2021. As a result, the Fair Work Act 2009 (FW Act) was amended to facilitate the extension of the scheme.

This note summarises some of the main aspects of the changes and what they mean.

QUALIFIED EMPLOYERS – the “extended provisions”

Which employers can use the extended provisions?

“Qualified employers” can continue to utilise the JobKeeper enabling provisions of the FW Act. A qualified employer is an employer who:

  • previously qualified under the scheme and continues to qualify after 28 September 2020; or
  • is eligible for the JobKeeper scheme and payments for the first time on or after 28 September 2020.

What does this mean?

Qualified employers can continue to (subject to providing notice and consultation):

  • give employees JobKeeper enabling stand down directions to work fewer (including nil) hours;
  • give employees JobKeeper enabling directions to change their duties or work location; and
  • make arrangements with employees to change their days or times of work.

What if I have existing directions or agreements in place?

For qualified employers, all existing JobKeeper enabling standdown directions and agreements continue to apply until they are cancelled, withdrawn, replaced or on 29 March 2021 when the scheme ends, whichever comes first.

LEGACY EMPLOYERS – employers that were eligible for JobKeeper but are not anymore

Legacy employers may continue to use “modified” JobKeeper provisions if they:

  • previously participated in the JobKeeper scheme, but are no longer participating from 28 September 2020; and
  • can demonstrate at least a 10% decline in turnover for a relevant quarter. This is to be proved by obtaining a certificate from a financial service provider, or (for small businesses), by obtaining a statutory declaration.

What are the modified provisions?

Legacy employers can (subject to giving written notice and consultation):

  • give employees a JobKeeper enabling stand down direction, provided the direction does not:
    • require employees to work less than 2 hours per day; and
    • 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.
  • give your employees JobKeeper enabling directions to change their duties or work location (this is the same as with Qualified Employers).
  • make arrangements with your employees to change their days or times of work, provided that the direction does not result in an employee working less than 2 hours on a workday.

If you issue a direction under this provision, or make an agreement, you are required to give “enhanced notice”. There must still be consultation with your employees.

What is “enhanced notice” and consultation?

Under the extended JobKeeper provisions, Legacy Employers must give employees 7 days’ written notice before issuing a JobKeeper enabling direction. Employees may appoint a representative (including the union) during the 7-day period.

During consultation, employers are required to:

  • provide information about the direction, including its effective date and the expected effects of the direction on the employee;
  • ask the employee for their views on the impact of the direction; and
  • keep written records of all discussions.

If a Legacy Employer does not comply with the notice or consultation requirements, the direction will not apply to the employee.

Written notice about whether directions or agreements end or continue needs to be given before:

  • 28 October 2020, for directions or agreements that apply between 28 September and 27 October 2020; and
  • 28 February 2021, for directions or agreements that apply between 28 October 2020 and 27 February 2021.

What about the arrangements I had with employees?

Legacy Employers can only give JobKeeper enabling directions under the new extended provisions. As such, directions or agreements that were in place prior to the changes coming into effect on 28 September 2020, ended on 27 September 2020.

If you have not done so already, Legacy Employers need to reissue or make new directions and agreements with your employees, in writing.

ENFORCEMENT AND DISPUTES

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

If you have any queries or would like further information regarding this article, please contact:

Brett Cassidy
Principal
M: 0438 368 053
E: bcassidy@pageseager.com.au

Joe Mullavey
Senior Associate
M: 0416 794 061
E: jmullavey@pageseager.com.au

Anna Di Carlo
Lawyer
T: (03) 6235 5141
E: adicarlo@pageseager.com.au

Published: 21 October 2020

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