From 28 September 2020, certain employers can use some of the JobKeeper provisions (with some changes) for their previously eligible employees if they:
- previously participated in the JobKeeper scheme, but no longer qualify (or choose not to participate) from 28 September 2020
- can demonstrate at least a 10% decline in turnover for a relevant quarter and get a certificate from an eligible financial service provider or make a statutory declaration if they are a small business employer.
These employers are known as legacy employers.
Legacy employers are different to qualifying employers.
Qualifying employers qualify for the JobKeeper scheme and receive JobKeeper payments for their eligible employees. They can also access the JobKeeper provisions under the Fair Work Act. Learn more at JobKeeper scheme – overview.
Under the extended JobKeeper provisions, legacy employers can:
- issue JobKeeper enabling stand down directions (with some changes)
- issue JobKeeper enabling directions in relation to employees’ duties and locations of work
- make agreements with employees to work on different days or at different times (with some changes).
JobKeeper enabling stand down directions
Legacy employers can stand down employees who they previously received JobKeeper payments for in certain circumstances. This means they can reduce their hours of work. Stand down directions made on or after 28 September 2020 can’t:
- result in an employee working less than 2 hours on a work day
- reduce a full-time or part-time employee’s hours of work to less than 60% of their ordinary hours as at 1 March 2020.
Legacy employers need to give at least 7 days’ written notice to an employee and consult with them before issuing a JobKeeper enabling stand down direction.
These directions can only take effect on or after 28 September 2020, but notice and consultation can start before then.
Directions to change duties or work location
Legacy employers can also issue JobKeeper directions to change work location or duties of employees who they previously received JobKeeper payments for, in certain circumstances. Legacy employers need to give at least 7 days’ written notice to an employee and consult with them before issuing a JobKeeper direction to change duties or work location.
This type of direction can’t start before 28 September 2020, but notice and consultation can start before then.
Agreements to change days or times of work
Legacy employers and their employees who previously received JobKeeper payments can agree to change the employees’ usual days or times of work. This type of agreement can’t result in the employee working less than 2 hours on a work day. These agreements can’t start before 28 September 2020, but can be made before then.
A legacy employer and employee can agree to terminate an agreement at any time.
Notice and consultation rules
Under the extended JobKeeper provisions, legacy employers need to give employees 7 days’ written notice before issuing a JobKeeper enabling direction. A shorter notice period can be given if the employee genuinely agrees to it.
Legacy employers need to consult with the employee about the direction during the 7 day notice period and keep a written record of the discussion.
While directions can’t start before 28 September 2020, notice and consultation can start before then.
An employee can appoint a representative (including a union) during the 7 day notice period. If they do, the employer needs to recognise the representative and consult with them.
Consultation includes:
- providing information about the direction, including when it will take effect and the expected effects of the direction of the employee
- asking for the employee’s views on the impact of the direction (for example, the impact on their family or caring responsibilities).
Legacy employers need to promptly and genuinely consider the employee’s (or their representative’s) views within the 7 day notice period. They aren’t obliged to disclose confidential or commercially sensitive information to the employee.
If a legacy employer doesn’t comply with the notice or consultation requirements, the direction won’t apply to the employee.
Where the legacy employer does continue to meet the conditions under New directions and agreements on or after 28 September 2020, the employer needs to notify the employee that the direction or agreement will continue.
Notice needs to be given before:
- 28 October 2020, for directions or agreements that apply between 28 September and 27 October 2020
- 28 February 2021, for directions or agreements that apply between 28 October 2020 and 27 February 2021.
When directions and agreements made on or after 28 September end
If legacy employers don’t meet the 10% decline in turnover test and have a certificate for the relevant quarter, JobKeeper enabling directions and agreements given or made under the extended JobKeeper provisions end on:
- 28 October 2020, if the above conditions aren’t met for the September 2020 quarter
- 28 February 2021, if the above conditions aren’t met for the December 2020 quarter.
Legacy employers need to notify their employees in writing about whether the new directions or agreements will continue applying, by the dates listed above.
Interaction with other obligations
Legacy employers who give a JobKeeper enabling direction or make an agreement need to comply with all existing rules in the Fair Work Act. This includes:
- frequency of payment rules
- minimum hourly pay rates (in the applicable award or agreement)
- penalty rates, loadings or other allowances.
Other rules in the JobKeeper amendments to the Fair Work Act will also apply to directions or agreements made by legacy employers. This includes:
- directions need to be safe and reasonable
- rules about accrual of leave and other entitlements
- rules about requests for secondary employment, training or professional development.
