The JobKeeper payment scheme has been extended with modified operation from 28 September 2020 to 28 March 2021. For employers who qualify:
a. there are now different rates for full time employees and part time/casual employees working less than 20 hours per week, instead of a flat rate;
b. the rate of payment has reduced from 28 September 2020 and will reduce again from 4 January 2021;
c. an actual loss in the September 2020 quarter (and subsequently the December quarter) compared to a previous similar period needs to be demonstrated (there are alternative tests available for certain employers).
Changes have also been made to the work flexibilities available under the Fair Work Act. Qualifying employers are still be able to give JobKeeper directions to eligible employees to:
a. work fewer days or hours or be stood down completely if they cannot be usefully employed because of the business effects of Covid 19; and
b. perform any duties within their skill and competency or work at a different place including home, subject to a reasonableness requirement.
By agreement, employees can also work ordinary hours on different days and times. Remember though that these directions and agreements are subject to several conditions including consultation and a broad dispute resolution power for the Fair Work Commission (FWC). Consultation, cooperation and a paper trail for all directions and agreements are key. However, any agreements to take annual leave (including at half pay) stopped applying from 28 September. 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.
A new category of legacy employers has been created with a modified ability to give JobKeeper directions to previously eligible employees. This applies to employers who previously qualified but no longer qualify for full JobKeeper status but can show a 10% decline in turnover for the September/December quarters and obtain a certificate from an eligible financial service provider (or statutory declaration for small businesses).
Legacy employers can reduce the normal working hours of previously eligible employees by up to 40% compared to their ordinary hours as at 1 March 2020. However, an employee cannot be directed to work less than 2 hours per day of work and at least 7 days notice of the direction must be given. Directions are also subject to reasonability requirements.
Employers who are no longer qualify for the JobKeeper scheme or legacy status are subject to normal employment laws and requirements. In other news, the FWC has also extended the existing award based unpaid pandemic leave provisions until 29 March 2021. Both the FWC and federal government are considering proposals for additional workplace flexibilities. Further changes can be expected.
WARNING: There is some devil in the detail of the JobKeeper scheme which is beyond the scope of this short bulletin. Reference should be made to the ATO and Fair Work Ombudsman websites for further detail of eligibility and conditions or professional advice obtained. Please contact us if you would like any further information or help.