JobKeeper Update

The JobKeeper Scheme started in April 2020, and temporary changes were made to the Fair Work Act 2009 to provide income support to employees along with the ability of employers to stand down employees and other measures to provide some stability to businesses as a result of the immediate downturn caused by COVID-19 social distancing and other restrictions.

The scheme was due to end on 28 September 2020, however it has been extended with some amendments until 28 March 2021.

These changes mostly relate to business eligibility and the payment rate. The previous $1500 JobKeeper payment has been reduced as of 28 September 2020 and a new two-tier system has been enacted. The payment rate is scheduled for a further reduction on 4 January 2021.

28 September 2020 to 3 January 2021

  • $1,200 per fortnight for employees who, in the four weeks of pay periods before 1 March 2020 or 1 July 2020, were working for 80 hours or more over this four-week period (on average) and
  • $750 per fortnight for other employees

4 January 2021 to 28 March 2021

  • $1,000 per fortnight for employees who, in the four weeks of pay periods before 1 March 2020 or 1 July 2020, were working for 80 hours or more over this four-week period (on average); and
  • $650 per fortnight for other employees
Businesses are required to nominate which payment rate will be claimed for each eligible employee. Where an employee was employed for both periods, the employer must select the reference period which would entitle the eligible employee to the higher rate. Click here to find out more information about the JobKeeper Payments.

JobKeeper directions and agreements made before 28 September 2020 continue to apply if the employer continues to be entitled to receive JobKeeper payments for an employee. Please refer to our previous JobKeeper factsheet here for more information on directions or agreements made prior to 28 September 2020.

If an employer is no longer entitled to receive JobKeeper on or after 28 September 2020, any JobKeeper directions or agreements made cease to apply. The employer may, however, be able to give new JobKeeper directions or make agreements to change days or times of work as a ‘legacy employer.’

Employer Eligibility
Businesses already in receipt of a JobKeeper allowance are required to reassess their eligibility for the JobKeeper extension from 28 September 2020 to 3 January 2021.

This requires reference to their actual turnover in the September quarter of 2020. Businesses are similarly required to reassess their eligibility in January 2021 in reference to the December 2020 quarter to remain eligible for the payments from 3 January to 28 March 2021.

Click here to access JobKeeper Extension fact sheets produced by the Federal Government which provide further information about which employers and employees qualify for the payment.

Legacy Employers
Only Legacy Employers can use the new provisions of the Fair Work Act. A legacy employer can give modified JobKeeper directions or enter into JobKeeper agreements.

An employer is a legacy employer if:

  1. It was entitled to one or more JobKeeper payment for an eligible employee before 28 September 2020
  2. It is no longer eligible for JobKeeper payments
  3. It holds a Certificate stating its experiencing at least a 10% decline in turnover for the designated quarter (in comparison to the same quarter the year before).
The 10% decline in turnover certificate must be provided by an eligible financial service provider, such as a qualified accountant, a registered tax agent or a BAS agent. Such certificate cannot be issued by a director or employee of the employer (or an associated entity). A Small Business has the option to provide a statutory declaration instead of a 10% decline in turnover certificate.

Among other things, a small business is defined as one that employs fewer than 15 employees. Please note that an employer’s eligibility to make the modified JobKeeper directions and agreements as a Legacy Employer is dependent on holding a Certificate and not by meeting the test regarding turnover.

Requirements for Legacy Employers
  1. Legacy Employers can only make directions or requests described in this fact sheet to employees that were entitled to a JobKeeper payment for a fortnight prior to 28 September 2020.
  2. This excludes employees that commenced employment after 28 September 2020. Directions or agreements must be safe and reasonable in all the circumstances, especially in regard to the spread of COVID-19. 
  3. Employers are required to provide notice and consultation. An employer must now give written notice of intention to give a direction 7 days before the direction unless genuinely agreed otherwise.
  4. The employer must consult with the employee or their representative. This means that the employer should provide relevant information about the proposed direction, such as:
  • What is it?
  • When will it take effect?
  • What effect will it have on employee(s)?

    • The employer must allow you to express your views about the impact of the proposed direction. For example, will the direction have any effect on your family or caring responsibilities?

    If so, let your employer know! The employer must give genuine consideration to your views and feedback within the 7-day period.

    Your employer must keep a written record of the consultation. Make sure you keep a written record in case you need to rely on it if a dispute arises.

Legacy Employer Directions and Requests/Agreements
A Legacy Employer can make the below modified JobKeeper Directions in relation to stand down, location and duties. A Legacy Employer can also request changes to an employee’s days or times of work. This is called a JobKeeper Agreement if the employee agrees.

JobKeeper Directions

Stand down
If you can’t be usefully employed for your normal days or hours during the stand down period because of changes to business attributable to the COVID-19 pandemic or government initiatives to slow the transmission of COVID-19, you may be directed to:
  • Not work on a day(s) you normally would
  • Work for a lesser period on particular day(s)
  • Work a reduced number of hours in comparison to your ordinary working hours
Your employer cannot however:
  • Reduce your hours below 60% of their ordinary hours as at 1 March 2020
  • Require you to work less than 2 hours in a day
  • Reduce your hourly base rate under the direction

    • Duties of Work
    You may be directed to perform different duties, if it’s reasonably necessary to enable your employer to continue the employment of one or more employees.

    You can’t be directed to perform duties that:

    • You don’t have the skills or competency for
    • You don’t have the relevant licences for (if applicable)
    • Aren’t reasonably in the scope of the employer’s business
    Your employer can’t:
    • Reduce your hourly base rate to an amount less than your base rate without the direction or the base rate of pay applicable to their duties under the direction
    Location of Work
    You may be directed to work from another location, including your home, if the direction is reasonably necessary to enable your employer to continue the employment of one or more employees.
    The proposed place of work must:
    • Be suitable for the duties to be performed
    • Not require you to undertake unreasonable travel
    • Be reasonable within the scope of your employer’s business operations

    JobKeeper Agreement

    Days/times of work
    You may be requested to work on different days or at different times.

    If you agree, the Agreement must meet the following requirements:

    • The agreement must be reasonably within the scope of your employer’s business operations
    • Your hours or work cannot be reduced in comparison to your ordinary hours
    • You cannot be required to work less than 2 hours a day. You must consider the request and cannot unreasonably refuse it.
    Employee Requests
    Secondary employment, training, etc If you are under JobKeeper stand down, you can make a request to your employer to: Engage in reasonable secondary employment Obtain training Obtain professional development Your employer must consider, and not unreasonably refuse your request.

    Duration
    • JobKeeper directions or agreements with Legacy Employers will end on:
    • 28 October 2020 if the employer does not hold a 10% decline in turnover certificate for the quarter ending on 30 September 2020; or
    • 28 February 2020 if the employer does not hold a 10% decline in turnover certificate for the quarter ending 31 December 2020.
    The employer can however notify an employee in writing prior to these dates that the direction or agreement will stop applying and when it will stop applying. All JobKeeper directions and agreements stop applying on 29 March 2021.

    Seek advice
    If you are given a JobKeeper direction or request by your employer, Professionals Australia can advise you on whether it is lawful, fair and reasonable. You may also be concerned about whether your employer is misusing the JobKeeper scheme - please contact Professionals Australia for further assistance.

    Disputes can be taken to the Fair Work Commission. There are also penalties which apply to some breaches of the JobKeeper provisions. For example, there are penalties for Legacy Employers who knowingly provide false or misleading information in order to obtain a Certificate.

    JobSeeker

    For information in regard the JobSeeker Scheme please visit the Services Australia website.

    Further information We recommend that you contact the Workplace Advice and Support (WAS) team for specific advice tailored for your individual circumstances, as this fact sheet is intended for general information only.

    If you work in a collective workplace and you are covered by an enterprise agreement, you can also contact your local delegate, organiser or industrial officer for assistance.