To give businesses workplace flexibility during, what still are challenging times, it is proposed that certain employers that are no longer eligible for the JobKeeper subsidy will still be able to give Jobkeeper enabling directions to employees.

Under the proposed legislation, until 29 March 2021, employers that were previously eligible for the JobKeeper subsidy but longer qualify from 28 September 2020, will still be able to reduce hours and amend duties or work location, subject to a few conditions including a new turnover test.

Dubbed "legacy employers", these businesses will need to demonstrate they experienced a 10% decline in turnover for the quarters ending on 30 September 2020 or 31 December 2020 to get the benefit of the extended JobKeeper flexibilities. To ensure legitimacy, the 10% reduction will need to be backed by a "decline in turnover certificate" issued by an independent financial service provider. Employers that attempt to rort the system will up for hefty fines.

Under JobKeeper 2.0, the flexibility granted to legacy employers has been curtailed compared employers still receiving JobKeeper payments. Although directions can still be issued to reasonably change employee duties and place of work, hours of work can only be reduced by up to 40% of the employee's ordinary hours (as at 1 March 2020) and legacy employers will no longer be able to direct employees to take annual leave.

These proposed changes to the Fair Work Act will go before Parliament today and are expected to get the green light.

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