JobKeeper renewed – lessons learnt on JobKeeper enabling directions and information on updates to the scheme

The JobKeeper scheme has been renewed, with employees set to receive the benefit up until 28 March 2021 at progressively reduced rates. Employers receiving the benefit should confirm their eligibility and ensure they are aware of the information regarding the ‘dos and don’ts’ of JobKeeper enabling directions.

JobKeeper extension

The JobKeeper scheme has operated as a lifeline for many businesses and individuals, with the Australian government giving eligible employers $1,500 before tax per eligible employee for the purposes of subsidising wages, allowing employers to maintain the employment relationship with their employees and avoid alternate action throughout the COVID-19 period, which was hoped to be relatively temporary. With the economic effects of COVID-19 still ongoing, the government has announced that the JobKeeper scheme will be extended to 28 March 2021 and will continue to be available to eligible businesses, the self-employed and not-for-profits.

Despite the continuation of the scheme, the payment will be cut to $1,200 per fortnight for the period 28 September 2020 to 3 January 2021 (Period 1) and to $1,000 per fortnight for the period 4 January 2021 to 28 March 2021 (Period 2). Further reductions to the rate will apply to eligible employees and business participants who were working less than 20 hours per week on average over the four weekly pay periods ending before 1 March 2020, with these employees only entitled to receive $750 per fortnight for Period 1 and $650 per fortnight for Period 2. Employers receiving the payment will be required to nominate the payment rate claimed for each of their eligible employees.

Employers looking to continue receiving the payment will be required to reassess their eligibility by reference to their actual September quarter turnover, with a further reassessment required to determine eligibility for the March 2021 quarter.

Eligible employees now only need to have been on a business’s books as of 1 July, where previously, it was 1 March. Treasurer Josh Frydenberg explained that this change means more people can access the program because as businesses start to open up and as progress is made on the health front, more employees were coming on to businesses books.

Lessons learnt on JobKeeper enabling directions

The introduction of the JobKeeper scheme brought additional powers for employers to give what are called ‘JobKeeper enabling directions’. These allow employers to direct employees to:

• work reduced or no hours
• take leave in certain circumstances, including at half pay
• perform different duties
• perform their duties:
  • at a different location
  • during different hours
  • on different days.

The Fair Work Commission has been given jurisdiction to deal with disputes about JobKeeper enabling directions, and as at 7 August, 639 applications had been received, 98% of which have already been finalised. The following is information that has been collated in order to aid employers in issuing JobKeeper enabling directions (noting that, while these examples provide guidelines for employers, whether a JobKeeper enabling direction is valid will turn on the facts of each individual case):

• It may be reasonable to ask casual employees to work additional hours where the JobKeeper subsidy means there is a windfall amount and the employer has duties for the employee to perform. Employers in this situation should note that a casual employee is not required to agree to such a demand and action taken because of a refusal to undertake increased hours (e.g. removing the person from the JobKeeper scheme) could lead to a potential general protections claim.
• Employers are required to satisfy the wage condition each fortnight and ensure an employee receives the greater of either the value of the work performed by them or $1,500. Employers who pay employees on a monthly basis should be cautious in the way that they attribute the JobKeeper ‘top-up’ amount, if any. Employers should ensure that they are reconciling each fortnight whether an employee is to be paid the $1,500 JobKeeper amount or the value of the work performed, regardless of whether the employee is paid monthly. An example of this occurs when an employee who is paid monthly exceeds the JobKeeper amount in one fortnight but not the next. In this situation, the employee should be paid at the end of the month for the value of the work performed in the first fortnight, and the JobKeeper amount in the second fortnight, so as to satisfy the wage condition.
• When giving a direction reducing an employee’s hours, employers should be cautious in relation to the following matters:
  • The direction must not disproportionately affect a class of employees such that the direction is unfair and unreasonable. A direction that gives all (full-time, part-time and long-term casual) employees the same minimum hours may be considered unreasonable and unfair in circumstances where full-time employees are having their hours reduced and part-time and casual employees are having their hours increased.
  • Both actual hours currently being worked and reasonable forecasts for the JobKeeper period are relevant considerations. Employers should not give directions reducing an employee’s hours for the JobKeeper period where the employee’s actual and predicted hours are significantly above that stated in the direction. Employers should assess the availability of productive work for employees at the present time and reasonably forecast those in the future, and any directions given should aim to be proportionate to actual and reasonably forecast prospective rosters.

Conclusion

With the JobKeeper scheme extended, employers should reassess their eligibility and make the necessary adjustments to their business to accommodate for the lower rate of payment. This might mean re-evaluating the workplace and considering issuing, altering or reissuing JobKeeper enabling directions as necessary.