JobKeeper enabling stand down directions

Temporary provisions were previously added to the Fair Work Act as part of the JobKeeper scheme. They applied to:

  • employers who qualified for JobKeeper payments and their eligible employees
  • legacy employers who no longer received JobKeeper payments and their eligible employees (specific rules apply).

The JobKeeper provisions enabled qualifying employers to give eligible employees a direction to reduce their hours or days of work, including to work no hours in certain circumstances. These directions were called JobKeeper enabling stand down directions.

The Fair Work Act JobKeeper provisions started on 9 April 2020. The last day the JobKeeper provisions applied was 28 March 2021.

Who could previously use the JobKeeper provisions

For a qualifying employer to have given a JobKeeper enabling stand down direction, they needed to:

  • qualify for and enrol in the JobKeeper scheme
  • have been entitled to JobKeeper payments for the employee to whom the direction applies
  • be a national system employer in the Fair Work system.

Direction to reduce hours or days of work

A JobKeeper enabling stand down direction previously allowed a qualifying employer to direct an eligible employee to temporarily:

  • not work on one or more days that they usually work
  • work for a shorter period than the employee usually works on a particular day or days
  • work less hours overall than the employee usually works
  • not work any hours at all.

If a direction applied to an employee, the employee had to comply with it.

A qualifying employer couldn’t use a direction to increase the number of hours an employee worked.

When an employer could have given a direction

A qualifying employer could have previously given an eligible employee a JobKeeper enabling stand down direction if:

  • the employee couldn’t have been usefully employed for their normal days or hours because of business changes attributable to:
    • the coronavirus pandemic, or
    • government initiatives to slow coronavirus transmission (such as an enforceable government direction)
  • the employer met the requirements for the direction, explained below.

When a direction ended

A qualifying employer could have given an eligible employee a JobKeeper enabling stand down direction from 9 April 2020 (when the JobKeeper provisions started). A direction remained in effect until the first of the following:

  • the employer stopped being a qualifying employer
  • the employee who is stood down by the direction stopped being an eligible employee
  • it was withdrawn, revoked or replaced (including by the Fair Work Commission),
  • on 29 March 2021, when the JobKeeper provisions ended.

Requirements for a direction

JobKeeper enabling stand down directions had to meet the following requirements:

  • Qualifying employers had to implement the direction safely. This included considering the nature and spread of coronavirus.
  • Employers also needed to make sure the direction was reasonable, taking into account all of the circumstances. This included:
    • any caring responsibilities that the employee had
    • if the direction applied to a category of employees, making sure it didn’t have an unfair effect on some employees in that category compared to others.

If a direction was unreasonable, it didn’t apply to the employee.

The employer needed to follow notice and consultation requirements when giving a direction (see below).

While a direction was in place, employers needed to be aware of and follow the payment and leave rules that applied.

When a direction was in place, it didn’t apply:

  • when an employee was taking authorised paid or unpaid leave (such as annual leave or long service leave), or
  • during any time the Fair Work Act said the employee was entitled to be absent from work (as opposed to taking leave), for example on a public holiday.

On 27 November 2020, the Full Federal Court of Australia confirmed that an employee who has been stood down under the Fair Work Act can’t take paid sick and carer’s leave or compassionate leave. On 21 May 2021, the High Court of Australia refused an application for special leave to appeal this decision.

A direction remained in effect until:

  • it was withdrawn, revoked or replaced by the employer or the Fair Work Commission, or
  •  29 March 2021, when the JobKeeper provisions ended.

How a direction was given

To have given a JobKeeper enabling stand down direction, qualifying employers needed to:

  1. Notify the employee in writing at least 3 days before giving the direction. This applied unless the employee genuinely agreed to a shorter timeframe.
  2. Consult with the employee (or their representative) about the direction and keep a written record of the consultation.
  3. Give the employee the direction in writing.

How a direction affected pay

If an eligible employee had been given a JobKeeper enabling stand down direction, the employer needed to continue paying the employee for the work they did.

When a qualifying employer gave an employee a direction, they couldn’t reduce the employee’s minimum hourly rate.

Employers couldn’t ask their employees to use up their annual leave or long service leave as a condition of them receiving the benefit of the JobKeeper payment.

Qualifying employers needed to nominate all of their eligible employees (also known as ‘one in all in’) when participating in the JobKeeper scheme. Employers also needed to deduct tax from their employees’ pay.

How a direction affected minimum entitlements and other conditions

An employee’s usual terms and conditions of employment continued to apply, except to the extent they were modified by a JobKeeper enabling stand down direction. Terms and conditions of employment may have come from an award, agreement or employment contract.

A direction couldn’t reduce minimum pay rates under the Fair Work Act. Any terms and conditions not related to the direction continued (such as penalty rates and accumulation of leave).

This meant that if an employer reduced an employee’s hours or days of work under a direction, the employee needed to be paid whichever is more:

  • the applicable JobKeeper payment amount per fortnight, or
  • an employee’s usual pay for work performed during the fortnight (including payments for any leave, public holiday pay and penalty rates).

Employees that worked under a direction still accumulated their usual leave entitlements for the period the direction applied. Service was counted for all purposes including if the direction reduced an employee’s hours to zero. Redundancy pay and payment in lieu of notice of termination should also have been calculated based on the usual hours and days of work (as if the direction hadn’t been given).

Secondary employment

An employee of a qualifying employer who had been given a JobKeeper enabling stand down direction could have asked their employer for permission to take on another job. The employer needed to consider this request and couldn’t unreasonably refuse it.

An employee could have received income from another employer while their primary (qualifying) employer was receiving JobKeeper payments on their behalf. The secondary employer couldn’t claim JobKeeper payments on the employee’s behalf, but the secondary employment wouldn’t affect the JobKeeper payments the employee’s primary employer was receiving.

Requests for training or development

Employees could previously ask their qualifying employer if they could take on secondary employment, training or professional development. Employers had to consider these requests and couldn’t unreasonably refuse them.

An employee’s terms and conditions reverted back to what they were before the direction was given when:

  • the direction was withdrawn, revoked or replaced (including by the Fair Work Commission), or
  • the direction stopped applying on 29 March 2021.
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