The Coronavirus Economic Response Package (JobKeeper Payments) Amendment Act 2020 (Cth) extends the operation of Part 6-4C of the Fair Work Act 2009 (Cth) (‘Fair Work Act’) beyond 28 September 2020. Part 6-4C a temporary provision in the Fair Work Act, will remain in operation until it is automatically repealed on 29 March 2021.  

The temporary provision in the Fair Work Act enables Qualifying Employers and Legacy Employers to Issue directions (known as JobKeeper enabling directions). JobKeeper enabling directions changing current employment arrangements may require an employee to:

•    Work reduced hours or days (a JobKeeper enabling stand down direction) for any            period that they cannot be usefully employed (including no hours/days);

• Undertake alternative duties; or

•    Work at an alternative location.

Qualifying Employers and Legacy Employers can also request an employee to work different days/times to their ordinary hours/days and the request cannot be unreasonably refused.

Qualifying Employers and Legacy Employers must undertake appropriate consultation with the employee concerned and their representative (if any) before the Direction is issued. There are additional consultation requirements for Legacy Employers as part of the process of issuing modified JobKeeper Enabling Directions.   

Qualifying Employers notification & consultation requirements for JobKeeper Directions
Qualifying Employers are those employers who meet the required turnover test to be eligible to receive JobKeeper payments for eligible employees from 28 September 2020.

There are no changes to the procedural and consultation requirements around issuing JobKeeper enabling directions for employers who are eligible for JobKeeper 2.0.

In order to issue a JobKeeper Enabling Direction to an eligible employee a Qualifying employer needs to undertake the following:

Step 1

Give an eligible employee written notice of the proposed JobKeeper Enabling Direction. The notice can be sent electronically.  

Step 2

Consult with the employee and their representative (if any), about the proposed Direction.

Step 3

Keep a written record of the consultation process that the employer has gone through with the employee concerned to discuss the proposed Direction.

Step 4

After considering any matters raised by the employee during the consultation step, update the proposed Direction and issue the Direction to the employee. This Direction must be issued at least three (3) clear days after the written notice at step 1 was issued.

At all times, an employer must ensure that the Direction is reasonable in the circumstances. In addition the Direction must meet the relevant criteria for being a Direction. For details of the relevant criteria for being a JobKeeper Enabling Direction refer to the JobKeeper 2.0 Employer Guide on the AHA|SA website.    

Template notification letters, consultation records and template JobKeeper Direction letters for employers eligible for JobKeeper 2.0 are available on the AHA|SA website.

Legacy Employers notification & consultation requirements for JobKeeper Directions

A Legacy Employer is an employer who

• Who qualified for the original JobKeeper Scheme but who does not qualify for JobKeeper 2.0; and
• Who can show at least a 10% decline in turnover as per the relevant periods (see below); and
• Who has an authorised certificate (or self-certified for a small business) confirming that decline.  

A Legacy Employer can only issue a JobKeeper Enabling Direction or Request if they hold a 10% decline in turnover certificate for the relevant period from a financial service provider or they are a small business who chooses to self-certify. The 10% decline in turnover test requires that:

• For the period between 28 September and 27 October 2020, an employer must have a 10% decline in turnover in the June 2020 quarter compared to June quarter 2019;
• For the period between 28 October and 27 February 2021, an employer must have a 10% decline in turnover in the September 2020 quarter compared to September quarter 2019;
• For the period between 28 February 2021 and 28 March 2021, an employer must have a 10% decline in turnover in the December 2020 quarter compared to December quarter 2019.

If, at 28 October 2020 or at 28 February 2021 the employer does not hold a certificate or self-certification (for a small business), the Direction or Request will cease to have effect.

In order to issue a JobKeeper Enabling Direction to an eligible employee a legacy employer needs to undertake the following:

Step 1

Give an employee written notice of the intention to issue a Direction. The notice can be provided by electronic means.

Step 2

Consult with the employee and their representative (if any), with information about the proposed Direction, including information about:

• The nature of the proposed Direction;
• When the proposed Direction will take effect;
• The expected effects of the proposed Direction on the employee.

This can be done at the same time as the notice referred to in Step 1 above.

Step 3

Consult with the employee and their representative (if any), about the proposed Direction. This includes inviting the employee or their appointed representative (if any), to give their views about the impact of the proposed Direction. Keep a written record of the consultation process.

A legacy employer must give prompt and genuine consideration to any views expressed by the employee or their appointed representative (if any).

Step 4

After considering any matters raised by the employee during the consultation step, update the proposed Direction and issue the Direction to the employee. This Direction must be issued at least seven (7) clear days after the written notice at step 1 was issued.

At all times, an employer must ensure that the Direction is reasonable in the circumstances. In addition the Direction must meet the relevant criteria for being a Direction. For details of the relevant criteria for being a JobKeeper Enabling Direction refer to the Fair Work Flexibilities Legacy Employer Guide on the AHA|SA website.   

Template notification letters, consultation records and template JobKeeper Direction letters for legacy employers are available on the AHA|SA website.