Am I Still Able To Stand Down My Employees Now that JobKeeper v2.0 Is Here?

 
 

The Federal Parliament has extended the existing JobKeeper scheme to facilitate increased workforce flexibility during the Corona crisis.  The extended program keeps most of the original options available to employers, such as reducing working hours, but there are some notable changes.

JobKeeper Employers and Legacy Employers under JobKeeper v2.0 still have the ability to direct employees to ‘stand down’. Stand down means to reduce an employee’s working hours.  These are known as JobKeeper directions.

Which Businesses Qualify?

 The extended scheme divides employers into two categories;

  1. Employers who qualify for JobKeeper v2.0; and

  2. ‘Legacy Employers’.

The qualifying criteria and the notice requirements do vary, depending on which category you fall into as an employer.

JobKeeper Employers

JobKeeper Employers are businesses that have experienced a significant decline in revenue due to the impact of COVID-19, and who are entitled to one or more JobKeeper payments for the period that the direction applies.

Legacy Employers

If a business doesn’t qualify for the JobKeeper scheme, it may still be able to make use of the flexible employment provisions of the extended scheme. A ‘Legacy Employer’ is an employer who:

  • no longer qualifies, or chooses not to participate in JobKeeper; and

  • who has experienced a 10% decline in actual GST turnover for the relevant 2019 quarter.

Directions To Stand Down (including reducing hours of work)

A JobKeeper Stand Down Direction may consist of a Direction to:

  • not work on a day or days on which the employee would usually work;

  • work for a lesser period than the period which the employee would ordinarily work on a particular day or days; or

  • working a reduced number of hours compared with the employee’s ordinary hours of work.

Employers should however exercise caution and make sure they are aware of whether they are a JobKeeper Employer or a Legacy Employer:

  • JobKeeper Employers may reduce hours to nil

  • Legacy Employers may not reduce an employee’s hours of work to less than 60% of their ordinary hours calculated as of 1 March 2020 (their ordinary hours before the impact of coronavirus).

Conditions

JobKeeper Stand Down Direction can be given provided:

  • Employee cannot be usefully employed

The employee cannot be usefully employed for the employee’s normal days or hours during the stand down period because of changes to the business attributable to the COVID-19 pandemic or government initiatives to slow the transmission of COVID-19;

  • Direction to ‘stand down’ must be reasonable

A JobKeeper direction, including a Stand Down Direction, will not be permitted if the direction is unreasonable in the circumstances.

Consultation

Employers must consult with employees before making a JobKeeper direction.

JobKeeper Employers must give the employee three (3) days written notice of their intention to stand them down and must consult with the employee about the nature and effect of the direction before formally giving the direction.

Legacy Employers must give the employee seven (7) days written notice of their intention to stand them down and must consult with the employee about the nature and effect of the direction before formally giving the direction.

Duration of JobKeeper Directions

A JobKeeper direction will automatically end on 29 March 2021 unless:

  • it is withdrawn or revoked by the employer;

  • it is replaced by a new direction given by the employer;

  • the employer stops being a qualified employer;

  • A JobKeeper Employee no longer qualifies for the JobKeeper payment;

  • The scheme is withdrawn, revoked or replaced by a Government order or by the Fair Work Commissions.

Legacy Employer directions must end on:

  • 28 October 2020, for directions or agreements that apply between 28 September and 27 October 2020; or

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

Need help?

We are able to help you manage your workforce and you can contact us here.

Check out other COVID-19 resources on the You Legal website here.

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