Key Points

Following the Budget 2020, qualifying employers (who are receiving JobKeeper payments for their employees, and continue receiving them after 27 September 2020), can continue using the Fair Work Act 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).

Full Article

Extension of the Fair Work Act means that under the ‘extended’ FairWork JobKeeper provisions, qualifying employers (who are receiving JobKeeper payments for their employees, and continue receiving them after 27 September 2020), can continue using the Fair Work Act 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 qualify for the JobKeeper scheme and, who receive JobKeeper payments on behalf of employees for the first time on-or-after 28 September 2020, can also use these JobKeeper provisions.

Employers will no longer be able to use the JobKeeper provisions to make agreements with their employees to take annual leave (including at half pay). Those provisions stop 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, will continue to apply after this date as long as the employer continues to qualify for JobKeeper and, the requirements to give a direction or make an agreement continue to be met.

For these employers, JobKeeper enabling directions or agreements will stop applying when they’re cancelled, withdrawn or replaced (including by a Fair Work Commission order), or on 29 March 2021 (whichever comes first).

JobKeeper enabling directions or agreements in place for legacy employers on 27 September 2020

Any JobKeeper enabling directions or agreements that legacy employers already have in place will end on 27 September 2020. Employers will need to reissue or make new directions and agreements.

While legacy employers can only give a JobKeeper enabling direction under the extended JobKeeper provisions that starts on or after 28 September 2020, they can give notice and start consultation before this date.

JobKeeper Enabling Stand Down Directions

Legacy employers can continue to issue JobKeeper enabling stand down directions to their previously eligible employees after 27 September 2020, provided the direction doesn’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 can continue to give a direction to change a previously eligible employee’s duties or work location.  For more information, visit JobKeeper enabling directions and agreements for legacy employers.

JobKeeper Agreements to Change Days or Times of Work

Legacy employers can continue to make agreements to change a previously eligible employee’s days or hours of work. The agreement can’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 have been repealed and stop applying from 28 September 2020. From this date, any agreement that was made under these provisions stops applying.

From 28 September 2020, employers and employees need to follow the usual rules for taking and requesting annual leave, including those set by an award or agreement.

For more information, click here to visit the FairWork website.

If you have any questions or need advice and clarity specific to your situation, feel free to contact Semmens & Co on 03 8320 0320 for a free consultation.