Extension of JobKeeper provisions in the Fair Work Act
On 1 September 2020, legislation to extend the JobKeeper scheme passed Parliament. As part of this, the JobKeeper provisions in the Fair Work Act were also extended with some changes. The extended provisions took effect from 28 September 2020. The last day the extended provisions applied was 28 March 2021.
The JobKeeper scheme helped employers who had been significantly affected by coronavirus to keep paying their employees. It also gave certain employers increased flexibility to help manage their business by using the Fair Work Act JobKeeper provisions (JobKeeper provisions).
Extension of the Fair Work Act JobKeeper provisions
Under the extended provisions, qualifying employers who received JobKeeper payments for their employees before the changes (and continued to receive them after 27 September 2020) could 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).
Employers who qualified for the JobKeeper scheme and who received JobKeeper payments on behalf of employees for the first time on or after 28 September 2020 could also use these JobKeeper provisions.
Employers were no longer able to use the JobKeeper provisions to make agreements with their employees to take annual leave (including at half pay). These provisions stopped applying from 28 September 2020.
Any JobKeeper enabling directions or agreements to change an employee’s days or times of work already in place on 27 September 2020 kept applying after this date as long as the employer continued to qualify for the scheme and the requirements to give a direction or make an agreement continued to be met.
For these employers, JobKeeper enabling directions or agreements stopped applying on the earlier of:
- when they were cancelled, withdrawn or replaced (including by a Fair Work Commission order), or
- on 29 March 2021.
Legacy employers and information for eligible financial service providers
The extended provisions allowed some employers, known as legacy employers, to continue using some of the JobKeeper provisions (with some changes) if they met certain conditions. These conditions included:
- previously participating in the JobKeeper scheme, but no longer participating from 28 September 2020
- demonstrating at least a 10% decline in turnover for a relevant quarter, by obtaining a certificate from an eligible financial service provider, or a statutory declaration for small businesses.
Legacy employers could only have used these JobKeeper provisions in relation to employees they received JobKeeper payments for before 28 September 2020 (previously eligible employees).
Employers didn’t need to have received JobKeeper payments every fortnight between 30 March and 28 September 2020 to be considered a legacy employer.
Satisfying the 10% decline in turnover test each quarter
Legacy employers needed to satisfy the 10% decline in turnover test and have a certificate (or statutory declaration) for each relevant quarter. If they didn’t, all JobKeeper enabling directions or agreements automatically ended on:
- 28 October 2020, if the above conditions weren’t met for the September 2020 quarter
- 28 February 2021, if the above conditions weren’t met for the December 2020 quarter.
Legacy employers and JobKeeper directions and agreements
Under the extended provisions, legacy employers could (for their previously eligible employees):
- issue JobKeeper enabling stand down directions (with some changes)
- 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 changes).
Any legacy employer that issued directions or made agreements had to follow the enhanced notice and consultation requirements under the JobKeeper provisions.
Legacy employers also needed to give their employees who are subject to a JobKeeper enabling direction or agreement written notice about whether:
- they had obtained a certificate or statutory declaration for the relevant quarter
- the JobKeeper enabling direction or agreement continued or ended.
JobKeeper enabling directions or agreements in place for legacy employers on 27 September 2020
Any JobKeeper enabling directions or agreements that legacy employers already had in place ended on 27 September 2020. They needed to reissue or make new directions and agreements after this date.
While legacy employers could only give a JobKeeper enabling direction under the extended JobKeeper provisions that started on or after 28 September 2020, they could give notice and start consultation before this date.
JobKeeper enabling stand down directions
Legacy employers could continue to issue JobKeeper enabling stand down directions to their previously eligible employees after 27 September 2020, provided the direction didn't:
- 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.
JobKeeper enabling directions to change duties or work location
Legacy employers could continue to give a direction to change a previously eligible employee's duties or work location.
JobKeeper agreements to change days or times of work
Legacy employers could continue to make agreements to change a previously eligible employee’s days or hours of work. The agreement couldn’t result in the employee working less than 2 hours on a work day.
Agreements to take annual leave
Under the original JobKeeper provisions, qualifying employers could make agreements with eligible employees to take annual leave. This included taking annual leave at half-pay.
These provisions were repealed and stopped applying from 28 September 2020. From this date, any agreement that was made under these provisions stopped applying.
From 28 September 2020 until the end of the JobKeeper scheme, employers and employees needed to follow the usual rules for taking and requesting annual leave, including those set by an award or agreement.
Enforcement and dealing with disputes
The Fair Work Commission (Commission) continued to have the power to deal with disputes related to the JobKeeper provisions under the extended scheme.
The Commission also had the power to deal with some disputes related to whether:
- legacy employers held certificates for the 10% decline in turnover test
- the certificates had been issued by an eligible financial service provider.
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