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The majority of the jobkeeper provisions of the Fair Work Act 2009 were repealed on 29 March 2021. The Fair Work Commission has limited power to deal with jobkeeper disputes on or after this date.
Attachment 5 sets out the jobkeeper provisions of the Fair Work Act that continue to apply on and after 29 March 2021.
Jobkeeper enabling stand down directions – employer previously entitled to jobkeeper payment for employee
Introduction
See Fair Work Act s.789GJA
Section 789GJA of Part 6-4C was repealed on 29 March 2021.
A jobkeeper enabling direction cannot be given on or after 29 March 2021 and a jobkeeper enabling direction given before 29 March 2021 does not apply on or after that date.
See Attachment 5 for information about the jobkeeper provisions that apply on and after 29 March 2021.
Division 5A of Part 6-4C authorises legacy employers that hold a 10% decline in turnover certificate to give a jobkeeper enabling stand down direction to an employee.
A jobkeeper enabling stand down direction is a direction to:
- not work on a day or days on which the employee would usually work
- work for a lesser period than the period which the employee would ordinarily work on a particular day or days, or
- work a reduced number of hours (compared with the employee’s ordinary hours of work).
Unlike a jobkeeper enabling stand down direction that an employer that is qualified to receive jobkeeper payments can give under s.789GDC, a jobkeeper enabling stand down direction under s.789GJA cannot reduce an employee’s hours below 60% of their ordinary hours of work as at 1 March 2020.
The time during which a jobkeeper enabling stand down direction applies is called the jobkeeper enabling stand down period.
When is a jobkeeper enabling stand down direction authorised?
A jobkeeper enabling stand down direction given by a legacy employer is authorised if:
- at the time the direction is given, the employer holds a 10% decline in turnover certificate that covers the employer for the relevant designated quarter
- the employer was entitled to a jobkeeper payment for the employee for a fortnight that ended before 28 Septermber 2020
- the employee cannot be usefully employed for the employee’s normal days or hours during the jobkeeper enabling stand down period because of changes to business attributable to:
- the COVID-19 pandemic; or
- government initiatives to slow the transmission of COVID-19
- implementing the stand down direction is safe, having regard to (without limitation) the nature and spread of COVID-19
- the direction does not require the employee to work less than 2 hours in a day
- the direction does not reduce an employee’s number of hours of work to:
- less than 60% of the employee’s ordinary hours of work as at the start of 1 March 2020, or
- less than 60% of the ordinary hours or work specified in the Fair Work Regulations 2013, if the employee belongs to a class of employees specified in the Fair Work Regulations 2013, and
- the jobkeeper enabling stand down period begins on or after 28 September 2020.
When does a jobkeeper enabling stand down direction not apply?
A jobkeeper enabling stand down direction under s.789GJA does not apply during a period when the employee is taking paid or unpaid leave authorised by the employer, or the employee is otherwise authorised to absent from their employment.[1]
Payment while a jobkeeper enabling stand down direction applies
During the jobkeeper enabling stand down period, the employer is required to comply with the hourly rate of pay guarantee in s.789GDB.[2]
This requires the employer to ensure that the employee’s base rate of pay, worked out on an hourly basis, is not less than the base rate of pay, worked out on an hourly basis, that would have been applicable to the employee if the direction had not been given to the employee.[3]
The employer is not otherwise required to make payments to the employee in respect of the jobkeeper enabling stand down period.[4]
Example
The following example is taken from the Explanatory Memorandum to the Coronavirus Economic Response Package (Jobkeeper Payments) Amendment Bill 2020.
Matthew works as a receptionist at Nishtha’s gym. He is engaged under the Fitness Industry Award 2010 at Level 3. On 1 March 2020, Matthew was employed as a full time employee. This means that at the requisite time, his ordinary hours under the Fitness Industry Award 2010 were 38 hours per week.
In late March 2020, Nishtha’s gym closed due to government restrictions aimed at slowing the spread of Coronavirus, and Nishtha consequently qualified for the jobkeeper scheme in relation to Matthew.
When restrictions were eased in June 2020, Nishtha reopened the gym, but for reduced hours. She gave Matthew a jobkeeper enabling stand down direction under s.789GDC of the Fair Work act reducing his hours from 38 to 15 per week until 27 September 2020.
By 28 September 2020, Nishtha’s business has started to recover financially and will not qualify for the extended jobkeeper payment from this date. The actual GST turnover of Nishtha’s gym in the June 2020 quarter was at least 10% below the business’ actual GST turnover in the June 2019 quarter, and Nishtha has obtained a certificate from an eligible financial service provider to this effect.
Nishtha wants Matthew to continue to work reduced hours because the gym still hasn’t returned to its normal operating times. The existing direction that applies to Matthew cannot continue automatically because Nishtha is a legacy employer. The terms of the existing direction also reduced Matthew’s hours to below 60% of his ordinary hours on 1 March 2020, which is not permitted by legacy employers after 28 September 2020. Nishtha gives Matthew a new JobKeeper enabling stand down direction under section 789GJA, which applies from 28 September 2020 and requires Matthew to work a minimum of 22.8 hours per week (60% of his ordinary hours on 1 March 2020), with at least 2 consecutive hours on each day Matthew works – he works 5 hours on Monday, Tuesday and Wednesday, 7.84 hours on Thursday, and no hours on Friday. Nishtha gives Matthew seven days written notice of her intention to give this direction, consults Matthew about the direction during the seven days prior to making the direction and keeps a written record of this consultation.
The new direction can apply from 28 September 2020 until 27 October 2020. Once the September quarter is complete, Nishtha must obtain a new 10% decline in turnover certificate for the September 2020 quarter. She will need to notify Matthew before 28 October 2020 that the JobKeeper enabling stand down direction will not cease to apply to him on that date. If she does so, the direction can apply until 27 February 2021.
Once the December 2020 quarter is complete, Nishtha must again obtain a new 10% decline in turnover certificate for the December 2020 quarter. She must again notify Matthew before 28 February 2021 that the JobKeeper enabling direction will not cease to apply to him on that date. If she does so, the direction can then continue to apply until the start of 29 March 2021. If in the September or December 2020 quarters the business recovers, and no longer satisfies the 10% decline in turnover test (and can therefore not get the certificate), Nishtha will not be eligible to give her employees a JobKeeper enabling direction for the subsequent period (see new section 789GJE below). She would need to notify Matthew before 28 October 2020 (if the gym no longer satisfies the 10% decline in turnover test for the September 2020 quarter) or before 28 February (if the gym no longer satisfies the test for the December 2020 quarter) that the JobKeeper enabling direction will cease to apply to him on that date (whichever applies).
Matthew’s base rate of pay under the Fitness Industry Award 2010 is $21.54 per hour, which cannot be reduced for his hours of work, regardless of the actual number of hours he works.
Updated time
Last updated
29 March 2021
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