Former JobKeeper scheme
The JobKeeper scheme was introduced in April 2020 to help employers significantly affected by coronavirus keep paying their employees. It also gave certain employers increased flexibility to help manage their business by using provisions temporarily added into the Fair Work Act.
JobKeeper scheme end date
The JobKeeper scheme ended on Sunday, 28 March 2021. From Monday, 29 March 2021:
- there were no more JobKeeper fortnights where businesses could claim JobKeeper payments from the Australian Taxation Office
- employers (including legacy employers) could no longer use the Fair Work Act JobKeeper provisions to issue or make JobKeeper enabling directions or agreements
- an employee's usual terms and conditions of employment (that applied before the JobKeeper scheme started) applied again.
Reverting to usual pay and conditions
When the JobKeeper scheme ended, employees were entitled to return to the terms and conditions of employment that applied (or would have applied) before the JobKeeper scheme started. These are set out in the National Employment Standards, and in an applicable award, registered agreement or employment contract.
When JobKeeper payments ended
From Monday, 29 March 2021, normal pay rules applied. All employees need to be paid the correct pay rate for the hours they work, as set out in the national minimum wage or an applicable award, registered agreement or employment contract.
Employers can't ask their employees to 'earn back' their JobKeeper payments by working for free or on reduced pay rates.
When the Fair Work Act JobKeeper provisions ended
JobKeeper provisions were temporarily added to the Fair Work Act to give certain employers increased flexibility to manage their workplaces during the impact of coronavirus. The provisions started on 9 April 2020, with some changes from 28 September 2020 when the JobKeeper scheme was extended.
When the JobKeeper scheme ended, employers (including legacy employers) could no longer issue or make JobKeeper enabling directions or agreements. Those that were issued or made no longer apply.
The last day that a JobKeeper enabling direction or agreement could apply was Sunday, 28 March 2021.
The Fair Work Act JobKeeper provisions that ended from 29 March 2021 are:
- JobKeeper enabling stand down directions
- JobKeeper enabling directions and agreements for legacy employers
- Directions to change an employee’s usual duties or work location
- Agreements to change an employee’s days or times of work
Employees were entitled to return to their previous employment conditions once any directions or agreements ended. Penalties may apply if employers issue JobKeeper enabling directions when they aren't eligible to.
Some employers and employees may have chosen to continue with aspects of their JobKeeper-related working arrangements after the scheme ended (for example, working some of their hours from home). Continuing changes had to be in line with an employee's applicable award or agreement and employment contract. Any ongoing coronavirus-related restrictions and requirements should also have been factored in.
When an employer couldn't return an employee to previous employment conditions
When the JobKeeper scheme finished, some employers may not have been able to return employees to their previous employment conditions. Where this happened, it was important that employers discuss all available options with their employees and explored what changes could be made.
Options may have included:
- reducing an employee’s hours of work
- changing an employee’s duties
- ending employment and redundancy.
Reducing an employee's hours of work
Reducing a full-time or part-time employee’s ordinary hours of work usually needs to be agreed with the employee.
Before making any changes, employers should've reviewed any applicable award, agreement or employment contract. Awards or agreements may include rules about reducing hours of work as well as rules about the consultation requirements that needed to be followed.
Changing an employee's duties
In other situations, it might have been appropriate to change an employee’s duties after JobKeeper finished. An employer may be able to change an employee’s duties at work under any:
It’s best to check what rules apply under an award or agreement to make sure the correct process was followed. Communicating regularly with employees and discussing any changes may have helped make sure that the changes were implemented appropriately and supportively in the workplace.
Before directing an employee to change duties, an employer had to make sure that any new duties were safe for the employee. They should also have made sure the employee had any required licences or qualifications to perform the duties.
When an employee works at a higher classification, they usually need to be paid at a higher rate. Employees who do some tasks below their usual classification should receive their usual pay rate.
Employers who made significant changes to an employee’s duties should be mindful about whether those changes resulted in the employee’s original position no longer existing. In these situations, the position may have been made redundant by the employer.
Ending employment and redundancy
In some situations, employers may have needed to consider whether an employee needed to be made redundant. This includes where an employer couldn’t afford to keep some positions because of the ongoing impact of coronavirus.
Where this happened, employees may be entitled to:
- redundancy pay
- payment of accumulated entitlements including pay, annual and long service leave
- other entitlements.
When dismissing an employee, employers should check the applicable award, enterprise agreement, employment contract and workplace policies that apply. They should also check the National Employment Standards. These instruments outline the rules and obligations that need to be followed when ending an employee’s employment.
The Fair Work Act also includes protections against being dismissed because of:
- a reason, or in a way, that is harsh, unjust or unreasonable
- another protected right.
These protections at work continue to apply to employees impacted by coronavirus and for those who participated in the JobKeeper scheme.
Important reminders for employers
Employers (including legacy employers) who issued JobKeeper enabling directions during the JobKeeper scheme should make sure that an employee's service was counted for all purposes for the period of the direction.
Employers (including legacy employers) who issued JobKeeper stand down enabling directions or made JobKeeper agreements to take annual leave (before 28 September 2020) also need to make sure that:
- employees accumulated leave entitlements as normal during the direction or agreement period
- any leave, redundancy and notice of termination is calculated as if the direction or agreement hadn’t been made.
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