So now that the pressure is off slightly with the JobKeeper registration deadline having been extended until 31 May, businesses will have the time to carefully consider not just the relevant financial, taxation and payroll issues, but also the employment law implications.

The 31 May deadline is for businesses who wish to apply for the first three fortnights of the JobKeeper subsidy, and businesses must ensure they have made the relevant payments to employees on or before 8 May for those fortnights.

On 9 April 2020, several changes were made to the Fair Work Act 2009 (Cth) to specifically provide more flexibility to employers and employees receiving JobKeeper. These businesses are both eligible for JobKeeper and a national system employer, and in relation to their employees, are both eligible for JobKeeper and a national system employee. These changes do not apply to State system employers and their employees (even if they are eligible for JobKeeper).

These changes are in addition to those changes made to many Awards and enterprise agreements in April, which also provide alternative flexibility options to employers and employees that are covered by those Awards at the beginning of April. See our previous articles on some of those changes HERE

The changes to the Act provide that an employer may direct an employee to:

  • work reduced hours overall, shorter shifts or fewer days, provided the employee's hourly rate is not reduced
  • undertake different duties (provided that they are licensed or qualified to do those duties and that if the duties attract a higher rate of pay, that the employee is paid that higher rate while undertaking those duties
  • work from an alternative location, provided that this does not require unreasonable travel

In addition, an employer may request (and an employee may not unreasonably refuse) an employee to:

  • work alternative days (without a reduction in hours)
  • take annual leave, provided their annual leave balance remains above 2 weeks

The employer and employee may also agree that the employee takes that annual leave at half pay for twice as long.

Any directions or agreement reached in relation to these JobKeeper enabling directions automatically cease on 28 September 2020, and must be subject to 3 days notice, consultation and kept as a written record of the business.

Any disputes about these directions can (and as at 7 May approximately 200 of them have been!) taken to the Fair Work Commission to be resolved. We recommend that you seek legal advice in relation to a direction you have received from your employer or are planning to give to your employees if you have concerns that it may be contrary to the Fair Work Act."

Key dates for JobKeeper subsidies

  • 20 April: enrolments for JobKeeper payment were opened
  • 31 May: DEADLINE EXTENDED for enrolling and paying your employees to claim April JobKeeper payments
  • 4 May: from this date, you should identify your eligible employees. You have until the end of May to enrol and identify your employees.
  • Monthly: reconfirm your employees' eligibility and update if changes are made

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.