Following the extension of a modified JobKeeper subsidy scheme until 28 March 2021, the Government has amended the JobKeeper provisions in the Fair Work Act 2009 (Cth) (FW Act) with effect 1 September 2020 to support these changes.

Extension of a modified JobKeeper subsidy scheme

From 28 September 2020 to 3 January 2021, for full-time workers, the current $1,500 payment per fortnight will fall to $1,200 per fortnight, followed by a further reduction to $1,000 per fortnight from 4 January 2021 to 28 March 2021.

For part-time or casual workers – those working less than 20 hours per week prior to 1 March 2020 – the payment will fall to $750 per fortnight from 28 September 2020 to 3 January 2021, followed by a further reduction to $650 per fortnight from 4 January 2021.

The eligibility criteria for employers will be less onerous, moving from a projected to actual GST turnover test, meaning that more businesses will be able to access the scheme for their employees.

Under the new eligibility criteria, businesses and not-for-profits will only need to reassess and demonstrate that their actual GST turnover has fallen in the September quarter 2020 (July, August, September) relative to a comparable period (generally the corresponding quarter in 2019), rather than for multiple quarters since the pandemic began.

From 28 September to 3 January 2020, employers will have to demonstrate an actual loss in the September quarter of 2020, of:

• 50% for businesses and not-for-profits with an aggregated turnover of more than $1 billion;
• 30% for businesses and not-for-profits with an aggregated turnover of less than $1 billion; or
• 15% for charities.

A further reassessment must be done for the period between 4 January 2021 and 28 March 2021, by reference to the actual GST turnover loss in the December quarter of 2020.

Staff who were hired after 1 March 2020 may now be eligible for JobKeeper. The eligibility test date has been moved from 1 March to 1 July 2020.

Changes to FW Act JobKeeper provisions

From 28 September 2020, employers who remain eligible for JobKeeper payments after this date will retain access to the full range of JobKeeper flexibility provisions in the FW Act in relation to employees for whom they are claiming the payment.

Employers who have previously qualified for the JobKeeper scheme, but who no longer qualify after 28 September 2020 (legacy employers) will be able to access a modified version of the JobKeeper provisions in relation to employees for whom they have previously received JobKeeper payments, provided they satisfy a 10% decline in turnover in the September 2020 and/or December 2020 quarters.

This will require an employer to obtain a 10% decline turnover test certificate from an eligible financial service provider, including a registered company auditor or a registered tax agent, BAS agent or tax (financial) adviser or a qualified accountant.

These legacy employers will also have access to modified JobKeeper-enabling directions. They can issue a JobKeeper-enabling stand down direction to an employee for whom they previously received a JobKeeper payment for to reduce that employee’s ordinary hours to a minimum of 60% of the employee’s ordinary hours as they were at 1 March 2020, prior to the impact of the coronavirus pandemic, provided the relevant criteria for issuing the directions are met. Such a direction cannot result in the employee working less than 2 consecutive hours in a day. The 60% threshold does not apply to casuals.

Legacy employers must also give a longer period of notice before giving a JobKeeper-enabling direction – 7 days rather than 3, and have expanded consultation requirements.

JobKeeper-enabling directions in place will automatically cease on 28 October 2020 if the employer is no longer entitled to a JobKeeper payment for the employee to whom the direction applies. If this is because the employer ceases to qualify, it will need to obtain the relevant 10% decline in turnover certificate for the quarter ending 30 September 2020 if it wishes to issue new directions.

If the employer does not obtain the certificate for the September 2020 quarter before 28 October 2020, the JobKeeper-enabling direction will cease at the start of 28 October 2020 and the employer must notify the employee in writing of this fact before 28 October 2020. These notification requirements also apply in relation to the December 2020 quarter with the cessation date of 28 February 2021.

Civil penalties will apply to notification requirements if an employer has contravened them on more than one occasion.

The JobKeeper provisions that allowed employers to request an employee to run down their annual leave to not less than 2 weeks – and for the employee not to unreasonably refuse – will cease to apply 28 September 2020. If an employee was given a request under these powers, the employee is not required to comply with the request to the extent that the request relates to taking paid annual leave after 28 September 2020. Any agreement in place between an employer and employee allowing employees to take their annual leave at half pay will also cease to have effect from 28 September 2020. Of course, this doesn’t affect the usual arrangements made between employer and employee regarding leave taking.