JobKeeper enabling stand down directions
Published 6 May 2020 | Updated 16 September 2020
Extension of JobKeeper provisions in the Fair Work Act
On 1 September 2020, the JobKeeper provisions in the Fair Work Act were extended with some changes.
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To support the implementation and operation of the JobKeeper scheme in Australian workplaces, temporary provisions have been added to the Fair Work Act (Fair Work Act JobKeeper provisions). They apply to employers who have qualified for the JobKeeper scheme and their eligible employees.
The Fair Work Act JobKeeper provisions enable qualifying employers to give eligible employees a direction to reduce their hours or days of work (including to no hours) in certain circumstances. These directions are referred to as either a ‘JobKeeper enabling stand down direction’ or a ‘direction’ on this page.
The Fair Work Act JobKeeper provisions started on 9 April 2020 and end on 28 September 2020.
On this page:
In this section:
Who can use the new Fair Work Act JobKeeper provisions
To give a JobKeeper enabling stand down direction under the new Fair Work Act JobKeeper provisions, an employer needs to:
- qualify for and enrol in the JobKeeper scheme
- be entitled to JobKeeper payments for the employee to whom the direction or agreement applies
- be a national system employer in the Fair Work system.
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Direction to reduce hours or days of work
A JobKeeper enabling stand down direction enables a qualifying employer to direct an eligible employee to temporarily:
- not work on 1 or more days that they usually work
- work for a shorter period than the employee usually works on a particular day or days
- work less hours overall than the employee usually works.
If a JobKeeper enabling stand down direction applies to an employee, the employee has to comply with it.
An employer can’t use a JobKeeper enabling stand down direction to increase the number of hours an employee works.
When an employer can give a JobKeeper enabling stand down direction
A qualifying employer can give an eligible employee a JobKeeper enabling stand down direction if the employee can’t be usefully employed for their normal days or hours because of business changes attributable to:
A qualifying employer can give an eligible employee a JobKeeper enabling stand down direction from 9 April 2020 (when the Fair Work JobKeeper provisions started). A JobKeeper enabling stand down direction remains in effect until revoked or replaced by the employer, or until the Fair Work Act JobKeeper provisions cease completely on 28 September 2020.
Requirements for a JobKeeper enabling stand down direction
Employers have to implement the direction safely, including considering the nature and spread of coronavirus.
Employers also need to make sure the direction is reasonable, taking into account all of the circumstances, including any caring responsibilities that the employee has. If a direction is unreasonable, it doesn’t apply to an employee.
The direction also doesn’t apply:
- when an employee is taking authorised paid or unpaid leave (such as annual leave or long service leave), or
- during any time the Fair Work Act says the employee is entitled to be absent from work (as opposed to taking leave), for example on a public holiday.
An employee who has been given a JobKeeper enabling stand down direction to work less or no hours isn’t entitled to use paid sick and carer’s leave or compassionate leave for the days or hours that they’ve been directed not to work.
Go to Leave and the JobKeeper scheme for more information.
A JobKeeper enabling stand down direction remains in effect until revoked or replaced by the employer, or until the Fair Work Act JobKeeper provisions cease completely on 28 September 2020.
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How to give a direction
Employers need to:
- notify the employee in writing at least 3 days before giving the JobKeeper enabling stand down direction (unless the employee genuinely agrees to a shorter timeframe)
- consult with the employee (or their representative) about the direction and keep a written record of the consultation
- give the employee the direction in writing.
Employers can use our:
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How a direction affects pay
If an eligible employee has been given a JobKeeper enabling stand down direction, the employer has to pay the employee either $1500 (before tax) per fortnight or their usual pay for work performed (including payments for any leave, public holiday pay and penalty rates) – whichever is more.
If an employee is normally paid less than $1500 (before tax) per fortnight, the employee is entitled to be paid an amount equal to the JobKeeper payment for the fortnight. Employers need to deduct tax from their employees’ pay.
Where an employer gives an employee a JobKeeper enabling stand down direction, they can’t reduce the employee’s hourly base pay rate.
Employers can’t ask their employees to use up their annual leave or long service leave as a condition of them receiving the benefit of the JobKeeper payment. Employers must nominate all of their eligible employees (also known as ‘one in all in’).
For more information see:
Example: Directed not to work any hours, JobKeeper payment is more than normal wage
Carly works part-time in a nail salon. The salon rosters her on for 15 hours a week (30 hours a fortnight) at $30 per hour, with a fortnightly pay of $900 (before tax).
The nail salon has to close because of an enforceable government direction. The business owner is not able to offer Carly alternative duties. The nail salon qualifies for the JobKeeper scheme. It receives $1500 payments for Carly each fortnight, paid monthly in arrears by the ATO.
Carly’s employer at the nail salon gives her a JobKeeper enabling stand down direction not to attend work at all. This is compared to her usual rostered 15 hours per week.
This means Carly is entitled to the full $1500 per fortnight (before tax) JobKeeper payment that the nail salon receives for her as an eligible employee. Carly’s employer pays her this amount, and is reimbursed by the ATO monthly in arrears.
Example: Hours reduced, JobKeeper payment is equal to or less than normal wage
Henry works for an electronics business that has suffered a major downturn following the coronavirus outbreak.
Henry’s employer qualifies for the JobKeeper scheme. His employer gives him a JobKeeper enabling stand down direction to reduce his ordinary working hours from 76 to 64 hours per fortnight.
Henry’s base pay rate is $30 per hour, which his employer can’t reduce. He now only works 64 hours a fortnight and his fortnightly pay has fallen from $2280 ($30 per hour multiplied by 76 hours worked in a fortnight) to $1920, before tax ($30 per hour multiplied by 64 hours worked in a fortnight).
Henry’s reduced fortnightly pay is still higher than the fortnightly JobKeeper payment of $1500 (before tax). This means his employer has to pay him $1920 per fortnight (before tax). Henry’s employer receives JobKeeper payments of $1500 each fortnight for Henry from the ATO, paid monthly in arrears.
6 weeks later, the business’s turnover has reduced further. Henry’s employer gives him a new JobKeeper enabling stand down direction, which reduces his ordinary working hours from 64 hours to 50 hours per fortnight.
Henry’s employer now must pay him $1500 per fortnight before tax ($30 per hour multiplied by 50 hours worked in a fortnight), which is an amount equal to the $1500 JobKeeper amount.
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How a direction affects minimum entitlements and other conditions
An employee’s usual terms and conditions of employment (for example under an award, enterprise agreement or employment contract) continue to apply, except to the extent they are modified by a JobKeeper enabling stand down direction.
Any JobKeeper enabling stand down directions made under the Fair Work Act JobKeeper provisions can’t reduce minimum pay rates under the Fair Work Act. Any terms and conditions not related to the direction continue (such as penalty rates and accrual of leave).
This means that if an employer reduces an employee’s hours or days of work under a JobKeeper enabling stand down direction, the employee needs to be paid the greater of either $1500 per fortnight (before tax) or their usual pay for work they performed. This includes any leave payments, public holiday pay or penalty rates for hours that are still worked.
You can use our Pay and Conditions Tool to calculate the base pay rate from an award.
Employees subject to a JobKeeper enabling stand down direction still accrue their usual leave entitlements for the period the direction applies, as if the direction hadn't been given to them. Service is counted for all purposes, including if the direction reduced an employee’s hours to zero. Redundancy pay and payment in lieu of notice of termination are also calculated based on the usual hours and days of work (as if the direction hadn’t been given).
Read more about Stand down of employees and continuous service in our Library.
Annual Wage Review 2020 and JobKeeper
On 19 June 2020, the Fair Work Commission announced a 1.75% increase to minimum wages following its Annual Wage Review. For information about how this increase interacts with JobKeeper, see How an employee is paid under the JobKeeper scheme on the JobKeeper wage subsidy page.
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Requests for training or development
Employees can also ask their employer if they can take on secondary employment, training or professional development. Employers have to consider these requests and can’t unreasonably refuse them.
When a JobKeeper enabling stand down direction is revoked by the employer or when the Fair Work Act JobKeeper provisions end on 28 September 2020, the employee’s terms and conditions will revert back to what they were before the direction was given.
Example: Request for training during JobKeeper stand down refused
Shane works full-time as a mechanic in Geelong.
Because of coronavirus, the number of customers coming to have their cars repaired has substantially decreased. Shane’s employer qualifies for the JobKeeper scheme and is entitled to JobKeeper payments for Shane.
Shane’s employer calls him and explains that because of the downturn in business, he can only be usefully employed for 3 days a week at the moment - Mondays, Wednesdays and Fridays. Shane’s employer gives him written notice that he plans to use a JobKeeper enabling stand down direction, to stand Shane down from work for the other 2 days. He discusses this with Shane, taking into account Shane’s caring responsibilities. Shane’s employer keeps a written record of this consultation. 5 days later, Shane’s employer issues him the direction, again in writing.
The next week, Shane calls his employer and asks if he can enrol in a full-time online TAFE course studying automotive repairs, which would be at his own expense.
His employer carefully considers Shane’s request but lets him know that they can’t agree to the request. This is because the course requires Shane to study full-time, and he’s required to work 3 days a week. Instead, Shane and his employer discuss other options, and agree that Shane can do the course part-time and only study on the days he has been stood down from work.
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Watch our short videos busting some common myths about returning to work during the coronavirus pandemic, including myths about JobKeeper and other workplace issues. Watch now on YouTube.
- Part 1 – myths about leave and stand downs, annual leave and JobKeeper and notice and stand downs.
- Part 2 – work and the JobKeeper payment, employee duties back at the workplace and JobKeeper and reduced hours.
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Find out more about Changing duties, location or days and times of work under the JobKeeper scheme.
For information about stand downs when a business is not accessing the JobKeeper scheme, go to Stand downs during coronavirus.
Read about the difference between stand down, unpaid leave and shut down in our Library.
For more information on the scheme, including how to enrol, go to the ATO website – JobKeeper section .
Enforcement and dealing with disputes
We help employers and employees understand and follow Australian workplace laws. We do this by:
- providing information and education
- providing tools, templates and guides
- helping you resolve workplace issues.
Our Resolving workplace issues during coronavirus page has information and resources to help you resolve workplace disputes. It also has information about our enforcement role under the JobKeeper scheme and who can help with:
- questions about eligibility for the JobKeeper scheme
- disputes about directions or requests under the JobKeeper scheme.
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