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Extension of JobKeeper Provisions in the Fair Work Act

On 1 September 2020, legislation to extend the JobKeeper scheme passed Parliament. As part of this, the JobKeeper provisions in the Fair Work Act were also extended with some changes. The extended provisions take effect from 28 September 2020 and apply until 29 March 2021.

The JobKeeper scheme helps employers who have been significantly affected by coronavirus to keep paying their employees. It also gives certain employers increased flexibility to help manage their business by using the Fair Work Act JobKeeper provisions (JobKeeper provisions).

Read on for information about the extension of the Fair Work Act JobKeeper provisions. 

Extension of the Fair Work Act JobKeeper provisions

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

However, these 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 will 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 keep applying after this date as long as the employer continues to qualify for the scheme.

Legacy employers and information for eligible financial service providers

The extended provisions allow some employers, known as legacy employers, to continue using some of the JobKeeper provisions (with some changes) for their previously eligible employees if they meet certain conditions. These conditions include:
  • previously participating in the JobKeeper scheme, but no longer qualifying from 28 September 2020
  • demonstrating at least a 10% decline in turnover for the previous quarter, by obtaining a certificate from an eligible financial service provider, or a statutory declaration for small businesses.

Statutory declarations for small businesses

Small business employers with less than 15 employees can make a statutory declaration instead of getting a certificate. The statutory declaration needs to:
  • state that the employer has experienced a 10% decline in turnover for the relevant quarter
  • be completed by a person who is the employer, or is authorised by the employer, and has knowledge of the employer’s financial matters.

To use the JobKeeper provisions in a particular quarter, small business legacy employers need to have a statutory declaration before the start of that quarter.

The Attorney-General’s Department has helpful guidance on a completing a statutory declaration as well as a downloadable template. 

Satisfying the 10% decline in turnover test each quarter

Legacy employers will need to satisfy the 10% decline in turnover test and have a certificate (or statutory declaration) for each relevant quarter. If they don’t, all JobKeeper enabling directions or agreements will automatically end on:
  • 28 October 2020if the above conditions aren’t met for the September 2020 quarter
  • 28 February 2021, if the above conditions aren’t met for the December 2020 quarter.

Legacy employers & JobKeeper directions and agreements

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 locations of work
  • make agreements with employees to work on different days or at different times (with some changes).

Any legacy employer issuing directions or making agreements must follow the enhanced notice and consultation requirements under the JobKeeper provisions.

Legacy employers also need to give their employees who are subject to a JobKeeper enabling direction or agreement written notice about whether:
  • they’ve obtained a certificate or statutory declaration for the relevant quarter
  • the JobKeeper enabling direction or agreement will continue or end.

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. They’ll need to reissue or make new directions and agreements

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. 

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 per 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.

This provision has been repealed and stops 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.