Jobkeeper 2.0 – Implications for flexibility in employment
The recent amendments to the Jobkeeper arrangements have changed more than just the monetary value of the Jobkeeper wage subsidy. Employers need to be aware of the changes to ensure that when managing employees they do not breach the Fair Work Act, 2009 (FWA). From 28 September 2020, there will be three different categories of employers in Australia and employers must understand which category they fall into and what management options are available to them.
Category 1 – Employers who are receiving the Jobkeeper wage subsidy – Qualifying Employers.
Employers who are receiving the Jobkeeper wage subsidy will continue to be able to access all of the temporary flexibility amendments which have been made to the FWA. The only exception to this is that the capacity to ask employees to take annual leave, and for the employee not to be able to unreasonably refuse such a request, is not continuing past 27 September 2020.
Any Jobkeeper directions or agreements which are in place on 27 September 2020 will continue to apply for this category of employer.
Category 2 – Employers who no longer qualify for the Jobkeeper wage subsidy but are still experiencing at least a 10% decline in turnover – Legacy Employers.
Legacy employers are a new category of employer which will exist from 28 September 2020. For these employers any Jobkeeper enabling directions or agreements that are currently in place will cease on 27 September 2020. Legacy employers will therefore need to review, and where appropriate, reissue Jobkeeper enabling directions or enter into new agreements with employees for those directions and agreements to have effect from 28 September 2020. However, there are limitations on the directions which can be issued by a Legacy employer, in that any reduction in hours must be for no more than 40% of the normal working hours (compared to working hours as at 1 March 2020). Further, an employee cannot be directed to work less than 2 hours on any one day. Legacy employers must give at least 7 days’ notice prior to implementing a Jobkeeper enabling direction and must advise the employee in writing of their status as a Legacy employer (i.e. that they have obtained a certificate from a qualified accountant, or they have provided a statutory declaration). Legacy employers can commence the consultation for new directions or agreements prior to 27 September 2020, however when such agreements are entered into or directions are issued, they must clearly state that they are to apply beyond 27 September 2020, if that is the intention. Where Legacy employers need to continue some or all of their flexible arrangements, we would recommend that they commence the consultation process as soon as possible, but certainly more than 7 days prior to 27 September 2020 to avoid the situation of existing directions and agreements ceasing to apply and having no alternative in place.
Category 3 – Employers who are neither receiving a Jobkeeper wage subsidy nor are Legacy Employers.
Employers in this category cannot access any of the specific amendments to the FWA in managing their employees. Such employers must comply with any obligations in the FWA and any applicable Industrial Award or Agreement. Employers in this category may well be able to achieve the same flexibilities as other employers, however, they may have to do so through alternative means. For example, an employer in this category can still stand down employees provided the requirements of section 524 of the FWA are complied with. Employers in this category may still negotiate directly with their employees to change their working hours, provided any resulting agreement is consistent with any applicable Industrial Award or Agreement.
Managing through this complex environment
Irrespective of which category of employer you fall into, times remain difficult and trying to work your way through the maze of what you can and cannot do, what you should or should not do, is hard. You are not in this alone and we are here to assist you in determining which category of employer you are and subsequently what that means for you in terms of your options to manage your workforce.
Our multidisciplinary approach allows us to work directly with your usual trusted accountant to ensure your category of employer is correct from an accounting perspective, as well as providing you with guidance on your employment and management options. If we can assist please contact us on firstname.lastname@example.org or + 617 3218 3919.