As the JobKeeper scheme has been extended, many of the terms of the JobKeeper provisions in the Fair Work Act have also been extended, effective 28 September 2020.

Although many of the terms have been extended, employers will no longer be able to use these provisions to make agreements to take annual leave (which also includes agreements to take leave at half pay). Employers must now follow the usual process for making annual leave requests.

Agreements made under the JobKeeper provisions t0 change an employee’s days or times of work, that were effective on 27 September 2020 will continue to apply, where the employer continues to qualify for JobKeeper and they meet the requirements to give this direction.

Employers, including those who became eligible for the scheme from 28 September 2020, who eligible under the JobKeeper provisions can continue to:

  • give their employees JobKeeper enabling stand down directions (for example, a direction to work less or no hours)
  • give their employees JobKeeper enabling directions (for example, a direction to change duties or work location)
  • make agreements with their employees to change their days or times of work (for example, an agreement that an employee will work on different days).

Where employers are no longer eligible for JobKeeper, (having previously participated in the scheme), but can still demonstrate at least a 10% decline in turnover for the relevant quarter, with a reduction in turnover certificate from an eligible financial services provider, or self-certifying for a small business, they may still continue to use SOME JobKeeper provisions.

In this scenario, the JobKeeper provisions can only apply to employees who they received JobKeeper payments for prior to 28 September 2020.

As set out on the Fair Work Commission website,

Under the extended provisions, legacy employers can, for their previously eligible employees:

  • 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).

Any legacy employer issuing directions or making agreements must follow the enhanced notice and consultation requirements under the JobKeeper provisions.

Legacy employers also need to give their employees who are subject to a JobKeeper enabling direction or agreement written notice about whether:

  • they’ve obtained a certificate or statutory declaration for the relevant quarter
  • the JobKeeper enabling direction or agreement will continue or end.

These legacy employers will need to ensure they reissue or make new directions and agreements post 27 September 2020.

This is a summary of the relevant changes to the JobKeeper Provisions under the Fair Work Act. If you’ve got questions about managing your employment obligations through this pandemic, talk to our Workplace Partners ASAP.


*This is general information only and doesn’t take your specific circumstances into account.