Legislation was passed on 1 September 2020 to extend the JobKeeper scheme until 28 March 2021. Accordingly, the JobKeeper provisions in the FWA were also extended, with some changes.

The extended provisions take effect from 28 September 2020 and apply until 28 March 2021.

Under the extended provisions, qualifying employers who are receiving JobKeeper payments for their employees (and continue receiving them after 27 September 2020) can continuing using the JobKeeper provisions to:

  • give their employees JobKeeper enabling stand down directions (i.e. to work less or no hours);
  • give their employees JobKeeper enabling directions (i.e. to change duties or work location);
  • make agreements with their employees to change their days or times of work.

However, employers will no longer be able to make agreements with their employees to take annual leave (including at half pay) (see further below). This provision will cease to operate on 28 September.

‘Legacy Employers’

This is a term now used for employers who were previously participating in the JobKeeper scheme. Legacy Employers can continue using some of the JobKeeper provisions in the FWA for their previously eligible employees where they no longer qualify from 28 September, but can demonstrate at least a 10% decline in turnover for the previous quarter. Evidence must be in the form of a certificate from an eligible financial service provider, or a statutory declaration for employers who are deemed a ‘small business’ (less than 15 employees).

Under the extended provisions, Legacy Employers can, for their previously eligible employees:

  • issue JobKeeper enabling stand down directions (with some changes);
  • issue JobKeeper enabling directions in relation to employees’ duties and location of work; and
  • make agreements with employees to work on different days or at different times (with some changes).

Any Legacy Employer issuing such directions must follow the enhanced notice and consultation requirements under the JobKeeper provisions.

Legacy Employers and stand down directions

Legacy Employers can continue to issue JobKeeper enabling stand down directions to their previously eligible employers after 27 September, provided the direction doesn’t:

  • result in an employee working less than 2 hours on a work-day; and
  • 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.

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 leave at half-pay.

This provision has been repealed and stops applying from 28 September. From this date, any agreement that was made under these provisions stops applying. Instead, employers and employees need to follow the usual rules for taking and requesting annual leave, including those set out by an award or agreement.

If you need any further clarification or information on the extension of the JobKeeper provisions in the Fair Work Act, please contact us.

Francine Clancy, Senior Associate