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16 Sep 2020

HHG Legal Group’s Employment Law team’s Murray Thornhill, Gemma Wheeler-Carver and Kimberly Jones provide an update on what employers need to know about the recent changes and extension to the JobKeeper subsidy.

20200918 Employment 2.0 Fair work act In article

Following the Federal Government’s announcement to extend JobKeeper Payments past 28 September 2020, the updated JobKeeper provisions in the Fair Work Act 2009 (Cth) have now been passed but with considerably more complexity to those in v1.0.

JobKeeper 1.0 provisions

On 9 April 2020 several changes were made to the Fair Work Act to allow employers flexibility and help employees to remain in employment and connected to their workplaces during the COVID-19 pandemic.  We discussed this in our previous article.  These changes allowed employers to issue JobKeeper directions to, and enter into JobKeeper agreements with, employees. These initial provisions were intended to cease at the end of the JobKeeper scheme, being 28 September 2020.

What has changed?

Earlier this month, the Coronavirus Economic Response Package (JobKeeper Payments) Amendment Act 2020 received Royal Assent.
A few important points to note include the following:

Annual Leave:

  • The provisions dealing with annual leave will be repealed on 28 September, with no replacement provisions.
  • This means that employers will not be able to use the temporary provisions in the Fair Work Act to direct employees to take annual leave after 28 September 2020. Employers may, however, rely on any applicable provisions in an award or registered agreement, or under other provisions of the Fair Work Act, or simply make an agreement with an employee in relation to taking annual leave (not under any legislation, award or agreement.)

Categories of Employer:

  • There are now 3 different categories of employer to be considered when assessing rights under the new temporary provisions
    • Qualifying employers: employers that are eligible for JobKeeper payments after 28 September 2020;
    • Legacy employers: employers that qualified for the initial JobKeeper payments, no longer qualify (after 28 September 2020) but are still experiencing a reduced turnover of 10% or more (from 2019); and
    • Neither of the above: employers that are not eligible for JobKeeper 2.0, or employers that were eligible for the original JobKeeper Scheme but are not experiencing a 10% or more decline in turnover.

We discussed eligibility requirements for the JobKeeper Payment scheme in our article last month.

Qualifying Employers

Qualifying employers will still be able to use the temporary changes to the Fair Work Act to issue directions to employees to:

  1. work reduced hours;
  2. undertake different duties; and
  3. work from an alternative location,

as well as enter into an agreement with employees (which cannot be unreasonably refused) to work alternative days.

Modified Flexibility measures for Legacy employers:

Legacy employers:

i. Will no longer receive JobKeeper payments, however, can still issue directions to employees to:

a. work reduced hours;

b. undertake different duties; and

c. work from an alternative location,
and enter into an agreement with employees (which cannot be unreasonably refused) to work alternative days;

ii. Cannot issue a JobKeeper enabling stand down direction to reduce an employee’s hours below 60%, or require an employee to work less than 2 consecutive hours;

iii. Must provide 7 days’ notice (in writing) to employees of any JobKeeper enabling stand down directions, directions to work different duties or at a different location and or of any agreements to work different days or times (but not less than 2 consecutive hours); and

iv. Must consult in a more substantial way with their employees about the relevant directions.

What should employers do now?

We suggest reviewing any current arrangements with your employees under the current temporary Fair Work provisions.  Are these still appropriate or required? Do they cease effect on 28 September 2020, either because of the expiry date on a written direction or agreement, or because you are no longer an eligible employer? Is additional notice or consultation with employees required?

If you still require some of flexibility provided by the temporary Fair Work amendments, but are no longer an eligible employer, assess whether the provisions related to Legacy employers apply. If they do not apply, you may be able to make a direction under an award, registered agreement or under other provisions of the Fair Work Act.  However, it is always preferable to reach an agreement with your employee as to any changes to their employment.

Any directions or agreements must adhere to the appropriate consultation and notice requirements and be recorded in writing.

These new temporary changes to the Fair Work Act are considerably more complex than the previous changes.  If you have any questions or concerns, we suggest you seek appropriate advice.

HHG Legal Group can assist

It is important for businesses to get early and specific legal and financial advice on these matters to avoid running into financial or legal issues at a later stage. HHG Legal Group and our taxation and accounting partners can provide speedy advice on these issues and more.

For over 100 years HHG Legal Group has been proudly serving Western Australian families, business and individuals. Never before has the State seen such a crippling time for many small businesses and we are committed to supporting the communities in which we operate. If you require advice relating to your obligations as a small business employer in the time of COVID-19, or have any other employment law queries, we are offering unprecedented initial consultation fees to assist in these challenging times.

Make an enquiry online or book a telephone, video or safely distanced meeting with an employment lawyer on +61 8 9322 1966

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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