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COVID-19: JobKeeper? More like Game Changer

The Government’s JobKeeper amendments have now passed through parliament. Not only do these new laws provide eligible employers with significant financial assistance to pay and retain their workforce, but they also include unprecedented flexibility to deal with, and stand down, their employees during the COVID-19 crisis.

The JobKeeper amendments, passed on 8 April 2020, provide financial assistance to employers affected by COVID 19. In particular, eligible employers will receive $1,500 (before tax) per fortnight per eligible employee to subsidise those employees’ wages.

JobKeeper Payment Eligibility

Employers will be eligible to receive the payment where:

  • their business has a turnover of less than $1 billion and their turnover has fallen by more than 30 per cent (of at least a month); or
  • their business has turnover of $1 billion or more and their turnover has fallen by more than 50 per cent (of at least a month) and
  • their business is not subject to the Major Bank Levy.

Eligible employees are those employees who:

  • are currently employed by the eligible employer (including stood down or re-hired employees);
  • were employed by the eligible employer as at 1 March 2020;
  • are full-time, part-time or long-term casuals (ie. casuals employed on a regular basis for longer than 12 months as at 1 March 2020);
  • are at least 16 years of age;
  • are an Australian Citizen, the holder of a permanent visa, or hold specific classes of visa; and
  • are not in receipt of a JobKeeper Payment from another eligible employer.

It is expected that the first payments will be received by eligible employers in the first week of May.

For further guidance on the eligibility criteria for the JobKeeper Payment and how the payments are intended to operate, click here.

Stand Down Flexibility

Perhaps even more significantly, the JobKeeper amendments will temporarily amend the FW Act to give eligible employers’ greater flexibility to deal with their employees (to hopefully preserve their workforce).

Specifically, the new Part 6-4C of the FW Act provides that eligible employers will be empowered to make JobKeeper enabling directions to their employees. For example, an employer may direct its employees to undertake alternate duties or work at a different location. Employees may also be asked to take accrued annual leave, including at half pay.

As part of JobKeeper enabling directions, an eligible employer may make a “jobkeeper enabling stand down direction”. This type of direction enables an eligible employer to direct its employees to work reduced hours or days, examples such as;

  • to not work on days they would ordinarily work;
  • to work for reduced periods, or
  • to work reduced hours.

This includes reducing an employee’s hours to nil.

For such a direction to have effect, it must be made reasonably and employers must give their employees a minimum of 3 days written notice of its intention to take this action. Employers must also consult with employees and/or their representatives.

Such a stand down direction may only be given where the employee cannot be usefully employed for their normal days or hours of work because of changes to their business caused by the COVID-19 pandemic, or government directions in relation to COVID-19.

When such a stand down direction is given, the employer must pay to the employee either the $1,500 JobKeeper Payment per fortnight or where the employee earns greater than this amount per fortnight, all of the amounts payable to the employee for the work undertaken during the fortnight (whichever is greater).

An employee’s hourly rate of pay may not be reduced during a stand down period where they are receiving JobKeeper Payments.

Where an employer breaches the JobKeeper requirements, eg. by failing to distribute the JobKeeper Payments to their employees, they may face substantial civil penalties.

For advice about your rights and obligations pursuant to the new JobKeeper Payment provisions, or your employment obligations generally during this difficult time, do not hesitate to contact Cowell Clarke’s Employment and Workplace Relations Team – Contact Us

This publication has been prepared for general guidance on matters of interest only and does not constitute professional legal advice. You should not act upon the information contained in this publication without obtaining specific professional legal advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication and to the extent permitted by law, Cowell Clarke does not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting or refraining to act in relation on the information contained in this publication or for any decision based on it.

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