The JobKeeper Payment scheme originally scheduled to cease by 27 September 2020 has been extended to 28 March 2021 (JobKeeper 2.0). Since its commencement on 30 March 2020, the scheme has provided critical support to over 920,000 businesses and 3.5 million workers.1
On 3 September 2020, the Coronavirus Economic Package (JobKeeper Payments) Amendment Act 2020 (Cth) was passed by the Federal Parliament to extend the scheme. The extended scheme will involve different levels of payment depending on the particular period of time that payments are to be made, until 28 March 2021.
A Summary of the Key Changes in the JobKeeper 2.0 is set out below:
Key Changes in JobKeeper 2.0
- Reduced Payment Rate
The payment rate of the JobKeeper 2.0 will be reduced as set out below:
- First Extension Period | 28 September 2020 to 3 January 2021
- Eligible employers will be able to access $1,200 per fortnight (before tax) wage subsidy for each eligible employee.
- Eligible employers will be able to access $750 per fortnight (before tax) wage subsidy for each eligible employee who works less than 20 hours a week.
- Second Extension Period | 4 January 2021 to 28 March 2021
- Eligible employers will be able to access $1,000 per fortnight (before tax) wage subsidy for each eligible employee.
- Eligible employers will be able to access $650 per fortnight (before tax) wage subsidy for each eligible employee who works less than 20 hours a week.
- Eligibility Requirements for Employers
The requirements for determining who is an eligible employer in JobKeeper 2.0 remain the same but the test to assess the decline in turnover has varied slightly.
The requirement is that an eligible employer must be carrying out a business in Australia on 1 July 2020 (or if a not-for-profit body, then pursuing its objectives principally in Australia on that date) and must have experienced a decline in their turnover as follows:
- 30% decline for businesses with a turnover of less than $1 billion;
- 50% decline for businesses with a turnover of more than $1 billion; or
- 15% decline for an ACNC registered charity.
Under the JobKeeper scheme which was initially introduced in March 2020, employers were required to meet a projected downturn in revenue to be eligible for the scheme. However, assistance for employers under the JobKeeper 2.0 scheme is based on employers meeting the requisite threshold in respect of their actual (not projected) downturn in revenue.
Legacy Employers and the 10% decline in turnover test and relevant certificates
Employers who previously qualified for JobKeeper but do not qualify for JobKeeper 2.0 will be known as, “legacy employers”.
Legacy employers will still be able to access some of the temporary flexibilities provided in Part 6-4C of the Fair Work Act 2009 (Cth) (FW Act) in respect of Job Keeper enabling directions for a further six months, provided that they can demonstrate that they are experiencing a 10% decline in turnover in a designated quarter.
If an employer has suffered a 10% decline in their turnover, the employer must obtain a certificate by a registered tax agent or BAS agent, or a qualified account (i.e. an independent and external individual/body to the employer) to satisfy the test in respect of the decline in the employer's turnover.2
Importantly, the employer must hold a 10% decline in turnover test at the time of using a JobKeeper direction under the FW Act. When these employers no longer satisfy the 10% threshold, any JobKeeper direction under the relevant division in the FW Act must cease.3
- Continued use of JobKeeper Directions for Eligible Employers
Both eligible employers and eligible legacy employers will be able to continue to utilise the JobKeeper directions, with a few key changes. These flexibilities initially allowed employers to stand down employees, alter their duties, change their location of work, reduce working hours and make requests in regard to taking annual leave and in regard to change to days of work.
However, Division 5 of Part 6-4C of the FW Act will be repealed so that employers can no longer request their employees to take annual leave. As such, any existing agreements or directions given to the employee in respect of taking annual leave will no longer be effective from 28 September 2020.
In addition, it is now required for employers to consider whether a JobKeeper direction or request may have an unreasonable impact on the employee.4
This will depend on any impact the direction might have on an employee's caring responsibilities. Also, a direction may be unreasonable if the directions have an unfair effect on some employees in that category when compared with other employees who are also subject to that direction.5
Eligible Legacy Employers utilising JobKeeper Directions
For eligible legacy employers, some JobKeeper enabling directions will continue to be available to them including (but not limited to) altering an employees' duties, changing their location of work and making requests in respect of days of work.
It should be noted however, that there are further restrictions imposed on eligible legacy employers in respect of changing their employees working hours. For instance eligible legacy employers cannot reduce an employee's ordinary hours below 60% or require their employees to work less than two hours on a day they work6.
- Additional Requirements for Eligible Employers when using the JobKeeper Directions
As noted earlier, an eligible employer or eligible legacy employer intending to use the JobKeeper directions, such as changing their duties or location of work, must now consider:
- whether the direction may have an unreasonable impact7;
- whether there is a reasonable belief held by the employer that the direction is necessary to continue the employment of one of more of it employees.8
Once satisfied, then:
- the direction can be exercised only after notifying that employee (namely, in a meeting/consultation – which must be recorded in writing);
- the employee must be provided with advance notice (in writing) of the employer's intention to give this direction;
- For eligible employers, the written notice of the employer's intention to give the direction must be done at least 3 days before that direction is given.9
- For eligible legacy employers, the written notice of the employer's intention to give the direction must be done at least 7 days before that direction is given.10
- any JobKeeper Direction must be in writing.11
- Penalties for any misuse of the JobKeeper Directions
There are tougher penalties if employers knowingly or recklessly misuse the JobKeeper Directions.
The Federal Court can now make orders terminating a JobKeeper Enabling Direction if the court is satisfied a legacy employer did not satisfy the 10% decline turnover test when making that request. Accordingly, any misuse of these directions may result in serious penalties for employers including $13,200 for individuals and $66,600 for body corporates.
Employers should consider receiving legal advice in respect of the substance of the JobKeeper Directions and the procedure to be adopted in implementing the JobKeeper Direction, prior to issuing them to their employees.
Victoria's Road Map to ‘COVID Normal' and What This Means For Your Business
On 6 September 2020, Victorian Premier Daniel Andrews announced a roadmap for the gradual easing of restrictions on Victorian workplaces in accordance with the government's 4 staged plan return to “COVID normal.”
Ahead of schedule, metropolitan Melbourne phased into the second stage of the roadmap on 27 September 2020, but will be unable to reach its target of a maximum of five new COVID-19 cases per day (on a 14 day average) to take the next step out of lockdown by 19 October 2020.
In accordance with the roadmap, the Victorian Government has released information setting out 4 industry restriction levels on various industries and how they will operate their services depending on which step of the plan that the State is in. The restrictions placed on various sectors vary significantly depending on the stage in the roadmap.
For more information on what restrictions are currently in force on your industry, please visit:
- For regional Victoria, https://www.coronavirus.vic.gov.au/industry-restriction-levels-regional-victoria
- For metropolitan Melbourne, https://www.coronavirus.vic.gov.au/industry-restrictions-roadmap-metro-melbourne
What the Restriction levels mean for Business operations
‘Closed' businesses during the relevant stage will mean that there are no workers onsite except for emergency maintenance and repairs.
Businesses with ‘heavily restricted' operations during the relevant stage must ensure physical distancing by:
- staff attending work if permitted. Staff in permitted work premises must work from home if they can;
- applying density quotients;
- reducing staff levels;
- limiting number of patrons; and
- preventing staff from carpooling to work.
In addition, all employees should wear a mask and ensure the proper use of masks in the workplace. For some sectors, there may be additional PPE requirements and businesses must also ensure adequate PPE training and supply.
Businesses must practise good hygiene including auditing of cleaning schedules. In addition, employers must keep records and act quickly if their staff become unwell, or ask staff to declare in writing or electronically before each shift that they are free of symptoms, have not been in contact with a confirmed case and have not been directed to isolate, and create ‘workforce bubbles.'
Businesses with ‘restricted' operations during the relevant stage must ensure physical distancing similar to businesses which are ‘heavily restricted'
Furthermore, restricted businesses should continue practising good hygiene including auditing cleaning schedules. In addition, employers must also keep records and act quickly if staff become unwell, and create ‘workforce bubbles'.
Open with a COVIDSafe Plan
Businesses which are open and operating with a COVIDSafe plan under the relevant stage are advised to:
- allow staff to work from home wherever possible (to be relaxed over time)
- apply density quotients for some settings (could be reduced over time)
- ensure staff follow current public health directions when carpooling
A number of permitted work places (that continue to remain operational on site) have been identified as high risk and require a High Risk COVID Safe Plan. On 30 September 2020, the Victorian Government also announced that workers in certain high-risk industries will be asked to participate in a new Surveillance Testing Program as part of the State's defences against new coronavirus outbreaks. As a result of this direction, and in addition to the High Risk COVID19 plan, it is a requirement that additional screening will be carried out by some high risk industries (including abattoirs and meat, poultry, seafood processing facilities, supermarkets and chilled distribution facilities).
Given recent case numbers, the Victorian Premier has indicated that the current social restrictions will be eased to some extent on 19 October 2020, but not as drastically as first planned in the roadmap, as the 14 day average of Victorian COVID-19 cases is well above the maximum number to move to the ‘Third Step' in the roadmap. Further, the additional target in order to allow Metropolitan Melbourne to move to the “Third Step”, namely, achieving less than five mystery cases in the last 14 days, also seems unlikely at this stage. 12
1.Treasury, The JobKeeper Payment: Three-month review (Executive Summary, 21 July 2020) , https://treasury.gov.au/sites/default/files/2020-07/jobkeeper-review-executive-summary.pdf
2 Fair Work Act 2009 (Cth) s 789GCD(2).
3Fair Work Act (Cth). ss 789GJE and 789GJF.
4 Fair Work Act (Cth) s 789GK.
5 Fair Work Act (Cth).See, notes 1 and 2 in s 789GK.
6 Fair Work Act (Cth) s 789GJA
7 Fair Work Act (Cth) s 789GK
8 Fair Work Act (Cth) s 789GL.
9 Fair Work Act (Cth).s 789GM(1)(a) – (b)(i).
10 Fair Work Act (Cth).s 789GMA(1)(a) – (b)(i).
11 Fair Work Act (Cth). s 789GN(1).
12 Tom Cowie, Craig Butt & Benjamin Preiss, ‘Which COVID restrictions are likely to be eased next week?', The Age (online at 13 Oct 2020) https://www.theage.com.au/national/victoria/which-covid-restrictions-are-likely-to-be-eased-next-week-20201012-p564cb.html