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JobKeeper directions & agreements – employers that qualify for JobKeeper payments

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Table of contents

On this page

  • Introduction
  • JobKeeper wage condition and minimum payment guarantee
  • JobKeeper directions and agreements made before 28 September 2020
  • JobKeeper directions
  • JobKeeper agreements

 

Introduction

Temporary JobKeeper provisions have been added to the Fair Work Act 2009. An employer who qualifies for the JobKeeper scheme and is receiving JobKeeper payments for an employee can temporarily change some of the employee's job conditions by:

  • giving the employee a JobKeeper direction, or
  • making certain types of agreement with the employee.

The JobKeeper changes to the Fair Work Act started on 9 April 2020. On 3 September 2020, the provisions about JobKeeper directions and agreements about days and times of work for employers currently entitled to JobKeeper payments were extended. They will end on 29 March 2021.

The JobKeeper provisions about agreements to take annual leave ended on 28 September 2020.

Find out more about who can make JobKeeper directions and agreements in our Jobkeeper disputes benchbook.

JobKeeper wage condition and minimum payment guarantee

Employers who are receiving JobKeeper payments for an employee must meet the wage condition. This means that they must pass on the full JobKeeper wage subsidy to the employees that they are claiming it for. If an employer doesn’t do this, then they are not meeting the wage condition.

Employers who are receiving JobKeeper payments for an employee must also meet the minimum payment guarantee. This means that if an employee earns more than the JobKeeper payment during a fortnight for the work they perform (including any payments for leave or public holidays), their employer needs to pay them the higher amount for that fortnight. The employer can’t pay just the JobKeeper wage subsidy.

An employer must meet the wage condition and the minimum payment guarantee to give a JobKeeper direction or request an agreement under the JobKeeper provisions.

Find out more

Visit the JobKeeper benchbook for further information in relation to the JobKeeper wage condition and minimum payment guarantee.

JobKeeper directions and agreements made before 28 September 2020

JobKeeper directions and agreements made before 28 September 2020 continue to apply if the employer continues to qualify for the JobKeeper scheme and receive JobKeeper payments for the employee.

If an employer is not entitled to receive JobKeeper payments for the employee on or after 28 September 2020, any JobKeeper directions or agreements made with the employee stop applying.

The employer may be able to give new JobKeeper directions or make an agreement to change an employee’s days or times of work as a legacy employer. Find out more about JobKeeper directions & agreements – employers previously entitled to JobKeeper payments.

All JobKeeper enabling directions and agreements stop applying at the start of 29 March 2020.

JobKeeper directions

Some working conditions can be changed by the employer without the employee’s agreement. This is called a JobKeeper direction. By giving a JobKeeper direction, an employer can:

  • give the employee a temporary full or partial stand down (a JobKeeper enabling stand down direction), and
  • temporarily change an employee’s duties or location of work.

Use the JobKeeper enabling direction checklist in our JobKeeper disputes benchbook to check whether a JobKeeper enabling direction meets the requirements and applies.

Find out more about the different kinds of directions

Directions reducing an employee's ordinary hours of work (JobKeeper enabling stand down directions)

A direction reducing an employee's ordinary hours of work is called a 'JobKeeper enabling stand down direction'.

An employer can direct an employee to:

  • not work on a day or days that the employee would normally work
  • work for a shorter time than the employee would normally work, or
  • work fewer hours than the employee's ordinary hours of work.

To give a valid direction, the employer must meet these requirements:

  • the employer must qualify for the JobKeeper scheme and receive JobKeeper payments for the employee that the JobKeeper direction applies to
  • the employer cannot usefully employ the employee for their normal days or hours because of the COVID-19 pandemic or government initiatives to slow the transmission of COVID-19
  • the direction must be safe having regard to the nature and spread of COVID-19
  • the direction must be reasonable
  • the employer must give the direction in writing
  • the employer must consult with the employee at least 3 days before they give the direction, and make a written record of the consultation
  • the employer must give the employee notice of their intention to give the direction in writing at least 3 days before they give the employee the direction.

Request for secondary employment

If an employee has been given a JobKeeper enabling stand down direction the employee may make a:  

  • request to engage in reasonable secondary employment
  • request for training
  • request for personal development

The employer must consider the request and not unreasonably refuse it.

Find out more

Visit the JobKeeper benchbook for further information about JobKeeper enabling stand down directions.

Directions about an employee’s duties of work

An employer can direct an employee to perform any duties that are within the employee's skill and competency.

To give a valid direction:

  • the duties must be reasonably within the scope of the employer’s business operations
  • the direction must be reasonable
  • the employee must have the appropriate licence or qualification to perform the duties (if necessary)
  • the employer must have information that leads them to reasonably believe that the direction is necessary to keep employing one or more employees (but not necessarily the employee who was given the direction)
  • the direction must be safe having regard to the nature and spread of COVID-19.

The employer must also meet these requirements:

  • the employer must be entitled to receive JobKeeper payments for the eligible employee that the direction applies to
  • the employer must give the direction in writing
  • the employer must consult with the employee at least 3 days before they give the direction and make a written record of the consultation
  • the employer must give the employee notice of their intention to give the direction in writing at least 3 days before they give the employee the direction.
Find out more

Visit the JobKeeper benchbook for further information about JobKeeper directions about duties of work.

Directions about an employee’s location of work

An employer can direct an employee to perform duties at a place that is different from the employee’s normal place of work (including the employee’s home).

To give a valid direction:

  • the place must be suitable for the employee’s duties
  • if the place isn’t the employee’s home, the travel distance can’t be unreasonable in all the circumstances (including the circumstances around the COVID-19 pandemic)
  • performing the duties at the place must be reasonably within the scope of the employer’s business operations
  • the direction must be reasonable
  • the employer must have information that leads them to reasonably believe that the direction is necessary to keep employing one or more employees (but not necessarily the employee who was given the direction)
  • performing the duties at the place must be safe having regard to the nature and spread of COVID-19.

The employer must also meet these requirements:

  • the employer must be entitled to receive JobKeeper payments for the eligible employee that the direction applies to
  • the employer must give the direction in writing
  • the employer must consult with the employee at least 3 days before they give the direction and make a written record of the consultation
  • the employer must give the employee notice of their intention to give the direction in writing at least 3 days before they give the employee the direction.
Find out more

Visit the JobKeeper benchbook for further information about JobKeeper directions about location of work.

JobKeeper agreements

Some changes to an employee’s working conditions can be by agreement between an employer and an employee. This is called a JobKeeper agreement. JobKeeper agreements can be about changing an employee's working days or times of work.

Until 27 September 2020, an employer could request that an employee agree to use annual leave under section 789GJ of the Fair Work Act. Section 789GJ was repealed on 28 September 2020. This means that from 28 September 2020, an employer cannot request that an employee agree to use annual leave under section 789GJ of the Fair Work Act.

Agreements to use annual leave under section 789GJ have no effect from 28 September 2020.

The Fair Work Commission cannot deal with JobKeeper disputes about requests and agreements about annual leave under section 789GJ after 28 September 2020.

Find out more about agreements

Agreements about changing days or times of work

An employer can request an employee to agree to work on different days, or at different times, compared with the employee's ordinary days or times of work.

For an agreement to be authorised by the JobKeeper provisions:

  • the employer must be entitled to receive JobKeeper payments for the eligible employee for the time that the agreement applies
  • working on the days or at the times in the agreement must be safe having regard to the nature and spread of COVID-19
  • working on the days or at the times in the agreement must be reasonably within the scope of the employer’s business operations
  • the agreement must not reduce the employee’s number of hours of work (compared to their ordinary hours of work)
  • the agreement must be in writing.

The employee must consider and must not unreasonably refuse the request.

Find out more

Visit the JobKeeper benchbook for further information in relation to JobKeeper agreements about changing days and times of work.

Updated time

Last updated

20 October 2020

 

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