JobKeeper enabling directions & agreements for legacy employers

Published 16 September 2020

Learn about the extended Fair Work Act JobKeeper provisions (JobKeeper provisions) for legacy employers, which provide flexibility to manage the workplace during the coronavirus pandemic.

Overview

Under the extended JobKeeper provisions, from 28 September 2020 legacy employers can:

  • issue JobKeeper enabling stand down directions (with some changes) – for example, a direction to work less hours
  • issue JobKeeper enabling directions in relation to employees’ duties and locations of work – for example, a direction to change work location
  • make agreements with employees to work on different days or at different times (with some changes) – for example, an agreement that an employee will work on different days.

Legacy employers can only issue directions and make agreements with employees that they previously received JobKeeper payments for. The new directions or agreements can only start on or after 28 September. Legacy employers need to comply with notice and consultation rules and other safeguards under the extended JobKeeper provisions. Notice and consultation can start before 28 September 2020.

Back to top

Directions and agreements in place on 27 September 2020

Any existing JobKeeper enabling directions and agreements that legacy employers already have in place end on 27 September 2020. If legacy employers want to use JobKeeper enabling directions or agreements after this date, they need to reissue or make new directions and agreements with their employees. The new directions or agreements need to start on or after 28 September 2020.

Back to top

New directions and agreements on or after 28 September 2020

To issue new directions or make new agreements that start on or after 28 September 2020, legacy employers need to qualify as a ‘legacy employer’ for each relevant quarter. This includes:

  • satisfying the 10% decline in turnover test
  • having a certificate or statutory declaration.

See the Legacy employers page for details.

Legacy employers can make new:

JobKeeper enabling stand down directions

Legacy employers can stand down employees who they previously received JobKeeper payments for in certain circumstances. This means they can reduce their hours of work. Stand down directions made on or after 28 September 2020 can’t:

  • result in an employee working less than 2 hours on a work day
  • reduce a full-time or part-time employee’s hours of work to less than 60% of their ordinary hours as at 1 March 2020.

Legacy employers need to give at least 7 days’ written notice to an employee and consult with them before issuing a JobKeeper enabling stand down direction. See Notice and consultation rules for more information.

These directions can only take effect on or after 28 September 2020, but notice and consultation can start before then.

Get more information about these directions at JobKeeper enabling stand down directions.

Directions to change duties or work location

Legacy employers can also issue JobKeeper directions to change work location or duties of employees who they previously received JobKeeper payments for, in certain circumstances. Legacy employers need to give at least 7 days’ written notice to an employee and consult with them before issuing a JobKeeper direction to change duties or work location. See Notice and consultation rules for more information.

This type of direction can’t start before 28 September 2020, but notice and consultation can start before then.

Get more information about these directions at Changing duties, location or days and times of work under the JobKeeper scheme.

Agreements to change days or times of work

Legacy employers and their employees who previously received JobKeeper payments can agree to change the employees’ usual days or times of work. This type of agreement can’t result in the employee working less than 2 hours on a work day. These agreements can’t start before 28 September 2020, but can be made before then.

A legacy employer and employee can agree to terminate an agreement at any time.

Find out more about these agreements at Changing duties, location or days and times of work under the JobKeeper scheme.

Back to top

Notice and consultation rules

Under the extended JobKeeper provisions, legacy employers need to give employees 7 days’ written notice before issuing a JobKeeper enabling direction. A shorter notice period can be given if the employee genuinely agrees to it.

Legacy employers need to consult with the employee about the direction during the 7 day notice period and keep a written record of the discussion.

While directions can’t start before 28 September 2020, notice and consultation can start before then.

An employee can appoint a representative (including a union) during the 7 day notice period. If they do, the employer needs to recognise the representative and consult with them.

Consultation includes:

  • providing information about the direction, including when it will take effect and the expected effects of the direction of the employee
  • asking for the employee’s views on the impact of the direction (for example, the impact on their family or caring responsibilities).

Legacy employers need to promptly and genuinely consider the employee’s (or their representative’s) views within the 7 day notice period. They aren’t obliged to disclose confidential or commercially sensitive information to the employee.

If a legacy employer doesn’t comply with the notice or consultation requirements, the direction won’t apply to the employee.

Written notice about whether directions or agreements end or continue

Legacy employers also need to give employees that are working under either a JobKeeper enabling direction or agreement written notice about whether their new direction or agreement will continue or end.

Where a JobKeeper enabling direction or agreement ends because the legacy employer doesn’t continue to meet the conditions outlined under New directions and agreements on or after 28 September 2020, the employer needs to give the employee written notice which outlines:

  • that the direction or agreement will stop applying
  • the date when the direction or agreement will stop applying.

Where the legacy employer does continue to meet the conditions under New directions and agreements on or after 28 September 2020, the employer needs to notify the employee that the direction or agreement will continue.

Notice needs to be given before:

  • 28 October 2020, for directions or agreements that apply between 28 September and 27 October 2020
  • 28 February 2021, for directions or agreements that apply between 28 October 2020 and 27 February 2021.

Legacy employers can use our template letters to notify an employee if a JobKeeper direction or agreement will continue or will end. Download our:

These templates include information on who can use these letters and how to complete them.

Back to top

When directions and agreements made on or after 28 September end

If legacy employers don’t meet the 10% decline in turnover test and have a certificate or statutory declaration (for a small business employer) for the relevant quarter, JobKeeper enabling directions and agreements given or made under the extended JobKeeper provisions end on:

  • 28 October 2020, if the above conditions aren’t met for the September 2020 quarter
  • 28 February 2021, if the above conditions aren’t met for the December 2020 quarter.

Legacy employers need to notify their employees in writing about whether the new directions or agreements will continue applying, by the dates listed above. See Written notice about whether directions or agreements end or continue for more information.

Back to top

Interaction with other obligations

Legacy employers who give a JobKeeper enabling direction or make an agreement need to comply with all existing rules in the Fair Work Act. This includes:

Other rules in the JobKeeper amendments to the Fair Work Act will also apply to directions or agreements made by legacy employers. This includes:

  • directions need to be safe and reasonable
  • rules about accrual of leave and other entitlements
  • rules about requests for secondary employment, training or professional development.

More information on the JobKeeper provisions:

Back to top

Print to PDF