Parliament has now passed the legislation for the second phase of JobKeeper, or ‘JobKeeper 2.0’, which will now continue to provide financial support and workplace flexibilities to employers for the extended period ranging from 28 September 2020 to 28 March 2021. As part of this, the JobKeeper provisions in the Fair Work Act were extended, however, there have been some key changes to these flexibilities and employers should take note.
Employers will now be broken up into 2 categories –
1. Qualifying Employers – Employers who have been in receipt of JobKeeper who will continue to both qualify for financial support and to be covered by the legislation into this extended period; and
2. Legacy Employers – Employers who were in receipt of the JobKeeper payments for the initial phase of the scheme, but no longer qualify for financial support. However, they may continue to access certain flexibilities under the amendments to the Fair Work Act as part of the JobKeeper legislation, if they meet the eligibility criteria.
1. Qualifying Employers
For information relating to eligibility criteria and payment obligations for the second phase of JobKeeper, employers are encouraged to review suitable resources relating to turnover tests and employee eligibility via the below resource.
Once employers have confirmed that they continue to qualify for the JobKeeper payment for the extended period, they will be able to continue to access the following JobKeeper provisions, including: –
- giving their employees JobKeeper enabling stand down directions (for example, a direction to work less or no hours)
- giving their employees JobKeeper enabling directions (for example, a direction to change duties or work location)
- making agreements with their employees to change their days or times of work (for example, an agreement that an employee will work on different days).
Stand down directions
Any JobKeeper enabled stand down directions or agreements previously issued on or prior to 27 September 2020, will continue to apply into this second phase of the scheme, and will only stop applying when they’re cancelled, withdrawn or replaced, or on 29 March 2021 (whichever comes first). Employers will still be required to provide 3-days written notice of an intention to issue a new JobKeeper enabled stand down direction, with suitable ER Strategies developed notice letters available here.
Annual leave flexibilities
Qualifying employers will no longer be able to access the JobKeeper annual leave flexibilities. These flexibilities under the legislation have been repealed and will cease to apply beyond 27 September 2020.
All other provisions, including information relating to hourly rate guarantees and leave accruals under the existing legislation, continue to apply.
For information relating to JobKeeper enabled stand down directions and agreements, including direction safeguards and employer obligations under the JobKeeper Scheme, a copy of the original legislation can be found here, or a copy of our summary of the original legislation can be found here.
2. Legacy Employers
Legacy employers will need to satisfy the relevant turnover tests and be in possession of a certificate (from an eligible financial provider) or statutory declaration (small businesses only) in order to continue accessing the modified JobKeeper Fair Work Act amendments beyond 27 September 2020.
For information relating to turnover tests and reporting requirements, legacy employers are encouraged to review their eligibility via the resource below: –
If a legacy employer fails to satisfy the 10% decline in turnover test and obtain a certificate or statutory declaration for a particular quarter, the JobKeeper Fair Work Act provisions will cease to apply.
The JobKeeper Fair Work flexibilities that legacy employers will be able to continue to access, include: –
- issuing JobKeeper enabling stand down directions (with some changes)
Changes: JobKeeper enabled stand down directions cannot result in employees working less than 2 hours on a work day, and cannot 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.
- issuing 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).
Changes: Employers and employees can continue to reach agreements relating to an employee’s days and/or hours of work, however these agreements cannot result in an employee working less than 2 hours per day.
Stand down directions
All JobKeeper enabled stand down directions which are already in place will cease to apply on 27 September 2020, meaning new directions MUST be issued to employees in order for them to apply. When legacy employers are issuing new JobKeeper enabled stand down directions, the direction will not apply to the employee unless written notice of the employer’s intention to give the direction was provided to employees (and their representatives, if required) at least 7-days before the direction is given, and the employer consults with employees and their representatives in this 7 day period.
Employers must keep written records of these consultations. This is different to the consultation period of 3-days which applies to the ‘Qualifying’ employers above. ER Strategies has developed a suitable stand down direction template for Legacy Employers which is available here.
Annual Leave flexibilities
Legacy employers will also no longer be able to access the JobKeeper annual leave flexibilities. These flexibilities under the legislation have been repealed and will cease to apply beyond 27 September 2020.
It is important to for employers to remember that hourly rate guarantees still apply and leave accruals continue to apply as if the direction had never been given. Stand down directions must directly relate to changes in business attributable to the COVID-19 pandemic, or government initiatives to limit the spread of the virus.
If you are issuing a stand down direction for reasons other than these, you are encouraged to call ER Strategies on 1300 55 66 37 to seek our expert advice and to discuss your options.
Employers who are exiting the JobKeeper scheme
Employers who are unable to satisfy the turnover requirements required to continue to access the JobKeeper Fair Work Act provisions under the legislation, will have all their existing JobKeeper enabled stand down directions or agreements cease to apply on 27 September 2020. These businesses will no longer be able to stand down employees, unless they can satisfy the strict stand down provisions under s.524 of the Fair Work Act 2009.
These employers will also no longer be able to unilaterally change employees’ ordinary hours of work, duties or location of work or days of work after this date, and it will be expected that employees resume their usual duties and hours of work at their usual rate of remuneration as per their contract of employment from 28 September 2020.
Businesses who are unable to meet these requirements for all employees should seek our expert advice and to discuss possible options prior to the end of the JobKeeper period ending 27 September 2020.
Getting Our Help
If you have any questions regarding the changes, or if you are unsure whether the JobKeeper flexibilities apply to your employees, we encourage you to call ER Strategies on 1300 55 66 37.