Fair Work Commission

Introduction

The JobKeeper payment scheme is a temporary wage subsidy for businesses significantly affected by coronavirus (COVID-19).

Eligible employers, sole traders and other entities can apply to the Australian Taxation Office to receive a fortnightly wage subsidy for their eligible employees to help them keep paying their employees. On 3 September 2020, the JobKeeper scheme was extended until 29 March 2021.

The Australian Taxation Office provides information about who is eligible for JobKeeper payments.

On 9 April 2020, temporary JobKeeper provisions were added to the Fair Work Act 2009. These provisions apply once an employer is entitled to receive JobKeeper payments for an employee. 

New temporary provisions for employers who were entitled to JobKeeper payments for an employee before, but not on or after, 28 September 2020 have also been added to the Fair Work Act.

The JobKeeper provisions are different for employers currently entitled to receive JobKeeper payments and employers who were previously entitled to JobKeeper payments.

JobKeeper directions & agreements – employers currently entitled to JobKeeper payments (qualifying employers)

Once an employer qualifies for the JobKeeper scheme and receives JobKeeper payments for an eligible employee, the qualifying employer may temporarily change some of an employee’s job conditions to help the employer deal with the economic impact of COVID-19.

A qualifying employer can do this by giving a JobKeeper direction to the employee or by making an agreement with the employee.

A qualifying employer must pass on the full JobKeeper wage subsidy to the employee.

The changes allow employers who have qualified to receive JobKeeper payments for an eligible employee to:

• give the employee a temporary full or partial stand down (a JobKeeper enabling stand down)
• temporarily alter the employee’s usual duties and location of work

An eligible employee that has been given a JobKeeper enabling stand down can also request to engage in secondary employment or training.

Until 27 September 2020, an employer could request that an employee agree to use annual leave under section 789GJ of the Fair Work Act. Section 789GJ was repealed on 28 September 2020. This means that from 28 September 2020, an employer cannot request that an employee agree to use annual leave under section 789GJ of the Fair Work Act.

The JobKeeper changes to the Fair Work Act 2009 started on 9 April 2020. On 3 September 2020, these JobKeeper provisions were extended until 29 March 2021, except for the annual leave provisions. The annual leave provisions end on 28 September 2020.

JobKeeper directions & agreements – employers previously entitled to JobKeeper payments

On 3 September 2020, the Fair Work Act was varied to include new provisions for employers who were previously entitled to JobKeeper payments (legacy employers).

A legacy employer is an employer who previously qualified for the JobKeeper scheme but no longer qualifies, or chooses not to participate, from 28 September 2020.

From 28 September 2020, legacy employers that hold a certificate stating that they have experienced at least a 10% decline in turnover can give modified JobKeeper enabling directions or make agreements with employees.

The new JobKeeper provisions in the Fair Work Act allow legacy employers that hold a 10% decline in turnover certificate (or, if they are a small business, have made a statutory declaration that they meet the 10% decline in turnover test) to:

• give an employee a partial stand down
• temporarily alter the employee’s usual duties and location of work,
• request the employee agree to alter their days and times of work.

The 10% decline in turnover certificate or statutory declaration must apply at the time the direction or agreement applies.

The JobKeeper provisions for legacy employers started on 3 September 2020 and end on 29 March 2021.

JobKeeper disputes

The temporary JobKeeper provisions in the Fair Work Act give the Fair Work Commission power to deal with disputes about how JobKeeper directions and agreements are implemented in the workplace.

The Commission can deal with disputes about JobKeeper directions and agreements from employers and employees, and employer and employee organisations.

The Commission cannot deal with disputes about eligibility for JobKeeper payments.

JobKeeper help

Different government agencies are responsible for different parts of the JobKeeper payment scheme.