by Belinda Winter and Riley Anastasio, Cooper Grace Ward

Employers need to reassess their eligibility for the JobKeeper scheme, with different flexibilities available, depending on whether an employer is a ‘qualifying’ or ‘legacy’ employer.

Introduction of the JobKeeper scheme

Additional flexibilities for employers were introduced as a response to the COVID-19 pandemic in April, allowing those who qualified for the JobKeeper scheme to give employees a number of JobKeeper enabling directions and request that they take annual leave in certain circumstances.

Changes to the JobKeeper scheme

The table below compares the current JobKeeper rules against the new JobKeeper rules. Those that remain the same have not been included.

Current provision New provision
An employer who both:

  • qualifies for the JobKeeper scheme; and
  • is entitled to receive the JobKeeper payment for an employee,

can access the increased flexibilities.

Employers who qualify for the JobKeeper scheme and are entitled to receive the JobKeeper payment for an employee are still able to access the increased flexibilities (Qualifying Employers).

Employers who previously qualified for JobKeeper payments but do not qualify for the revised version of the scheme can still use the flexibilities if they hold a certificate that states they have suffered a 10% decline in turnover each quarter (Legacy Employers).

Each JobKeeper fortnight, eligible employees are entitled to the greater of:

  • $1,500; or
  • the value of the work performed by them.
The amount eligible employees are entitled to will be reduced to $1,200 from 28 September 2020 and $1,000 from 4 January 2021.

Lower rates apply to those who worked less than 20 hours per week in the two fortnightly pay periods prior to 1 March 2020 or 1 July 2020, being $750 from 28 September 2020 and $650 from 4 January 2021.

The two fortnightly pay periods prior to 1 July 2020 should be used for employees who are assessed as eligible as of 1 July 2020. The period with the higher number of hours should be used for employees who were eligible at 1 March 2020.

Employers who qualify for the increased flexibilities can give an employee a JobKeeper enabling stand down direction reducing their hours, including to zero, if the requisite conditions are met. The previous provision remains in place for Qualifying Employers.

Legacy Employers can give a JobKeeper enabling stand down direction to an employee reducing their hours if the requisite conditions are met, however, this must not result in the employee working less than:

  • 60% of their ordinary hours as they were on 1 March 2020; or
  • two consecutive hours on a day they are required to perform work.
Employers who qualify for the increased flexibilities can request that an employee take annual leave as long as it would not result in an employee with an annual leave balance of less than two weeks. This includes agreeing to take annual leave for twice the time at half pay. This provision remains in its current form; however, it will be repealed on 28 September 2020. This means that directions to take annual leave must cease on or before 28 September 2020.
Employers who qualify for the increased flexibilities must give an employee at least three days’ written notice of the intention to give a JobKeeper enabling direction unless a lesser notice period is genuinely agreed to. Employers must also consult with the employee about the direction. Legacy Employers must give at least seven days’ written notice of the intention to give a JobKeeper enabling direction unless a lesser notice period is genuinely agreed to. Increased consultation requirements also apply.

The previous provision remains in place for Qualifying Employers.

Conclusion

Employers should assess whether they are eligible for the new JobKeeper scheme and, if not, consider whether they would qualify for the modified flexibilities as a Legacy Employer.

It is imperative employers understand the new JobKeeper rules along with their general obligations under the various employment laws. If there is a dispute about the various matters under the JobKeeper scheme, including a JobKeeper direction, parties can apply to the Fair Work Commission.