The Federal Government has extended the provisions in Part 6-C of the Fair Work Act 2009 (Cth) which enable JobKeeper eligible employer to issue various directions to eligible employees. This extends the provisions until 28 March 2021 – the same date that the JobKeeper 2.0 scheme expires. 

The provisions in the Fair Work Act expire on 28 September 2020. 

The changes give different rights to the following two groups of employers from 28 September 2020: 

1. Employers who are eligible for the JobKeeper 2.0 scheme 

These are those  employers who originally qualified for Job Keeper and are able to demonstrate that the 30% loss of revenue still applies  in the same way as when they originally qualified. These employers will have access to the following forms of directions and agreements in respect of eligible employees: 

• JobKeeper enabling stand down directions; 
• Directions relating to the location of work; 
• Directions relating to work duties; and 
• Agreements about the days and times that an employee will work, with an employee unable to unreasonably refuse agreement. 

Employers will no longer have access to the current provisions which give employees the right to reach agreement with employees about the taking of annual leave, with an employee unable to unreasonably refuse agreement. These provisions will be discontinued from 28 September. 

2. Employers that were eligible for the original JobKeeper scheme but are not eligible for the JobKeeper 2.0 scheme, and who have experienced a decline in turnover of 10% or more 

These employers will have access to the following forms of directions and agreements in respect of eligible employees: 

• JobKeeper enabling stand down directions – but hours of work for an employee cannot be reduced to less that 60 per cent of the hours that the employee was working on 1 March 2020; 
• Directions relating to the location of work; 
• Directions relating to work duties; and 
• Agreements about the days and times that an employee will work, with an employee unable to unreasonably refuse agreement. 

Employers will be required to obtain a ‘10% decline in turnover’ certificate from an eligible financial services provider. Small businesses with less than 15 employees will be able to self-certify. Penalties will apply for employers that do not meet the 10% test and who knowingly or recklessly try to use the provisions. 

If you would like more information about the changes to the JobKeeper entitlements, please contact Ai Group’s Workplace Advice Service on 1300 55 66 77. 

Alternatively, if you would like advice about issuing stand down directions to employees, please contact your local employment, workplace and industrial lawyer in Sydney, Newcastle, Wollongong, Adelaide, Melbourne or Brisbane or contact Ai Group Workplace Lawyers here.