In our last blog, we had mentioned the extension of the Coronavirus Job Retention Scheme (CJRS) in the UK to 31 March 2021. We now move onto Australia and the extension of the JobKeeper payments beyond 28September 2020.
The Australian Federal government has updated provisions in the Fair Work Act 2009 which was recently passed and involves a certain amount of complexity compared to the previous JobKeeper Payments scheme.
In April of this year, amendments had already been made to the Fair Work Act to support employers and to keep employees in employment. These amendments allowed employers the flexibility to issue directions to employees such as: reducing hours, shift lengths and days of work provided that the hourly rate of pay remains the same; perform other or different duties on the provision that the employee is qualified and licensed to do so and to be paid at a higher rate of pay if those duties entitle them to it; change in work location provided that travel is reasonable, request employees to take annual leave if their annual leave balance remains more than two weeks and so forth. It also allowed both parties to enter into JobKeeper agreements. These changes that were introduced were timebound and set to end on 28 September 2020 with the end of the JobKeeper Payments.
Changes to JobKeeper Payments
At the beginning of November, the Coronavirus Economic Response Package (JobKeeper Payments) Amendment Act 2020 has been passed.
There are some key points to note:
Changes to JobKeeper Payment Rates
- JobKeeper payment rates for employees will now be based on the total hours worked by each employee during their reference period. Previously, it was a flat rate of AUD$1,500 per fortnight (pre-tax) for eligible employees.
- JobKeeper Payments will now be split into tier 1 and tier 2 for eligible employees.
- Tier 1 and tier 2 rates will be paid differently in two phases which are as follows (all rates are before tax):
From 28 September 2020- 3 January 2021
- Tier 1: AUD$1,200 per fortnight (before tax)
- Tier 2: AUD$750 per fortnight (before tax)
From 4 January 2021 – 28 March 2021
- Tier 1: AUD$1,000 per fortnight (before tax)
- Tier 2: AUD$650 per fortnight (before tax).
- Businesses are required to evidence a decline in actual GST turnover with a comparable period when previously it was based on projected GST turnover.
- Employers will no longer be able to use the previous temporary provisions in the Fair Work Act to direct employees to take annual leave after 28 September 2020. The provisions concerning annual leave will be repealed, with no replacement on 28 September 2020.
- However, employers may still be able to rely on any provisions in a Modern Award or registered agreement or other provisions within the Fair Work Act to do so or to enter into an individual agreement (with an employee in relation to taking annual leave).
Different Categories of Employer:
- Under the new temporary provisions, there are now three categories of employer to be considered when assessing rights:
- Qualifying employers: employers that are eligible for JobKeeper payments after 28 September 2020;
- Legacy employers: employers that qualified for the initial JobKeeper payments but no longer qualify after 28 September 2020 and are still experiencing a reduced turnover of 10% or more (from 2019); and
- Neither Qualifying or Legacy: employers that are not eligible for JobKeeper version 2, or employers that were eligible for the original JobKeeper Scheme but are not experiencing a 10% or more decline in turnover.
Qualifying employers will still be able to use the recent temporary changes to the Fair Work Act to issue directions to employees to work reduced hours; perform other or different duties; and work from different location subject to reasonable travel. Employers can also enter into an agreement with employees (which cannot be unreasonably refused) to work alternative days.
Legacy employers will no longer be eligible to receive JobKeeper payments. On the other hand, they can still issue directions to employees to: work reduced hours; perform different duties; work from a different location and enter into an agreement with employees (which cannot be unreasonably refused) to work alternative days
Secondly, legacy employers will no longer be able to issue a jobkeeper enabling stand down (a form of flexible stand down) direction to reduce an employee’s hours below 60% or require an employee to work less than 2 consecutive hours.
Thirdly, they must provide a week’s notice (in writing) to employees of any jobkeeper enabling stand down directions, directions to work different duties or at a different location and or of any agreements to work different days or times (but not less than 2 consecutive hours).
Last but not least, legacy employers must consult more substantively with the employees about the relevant directions.
Employers should review existing arrangements with employees under the current temporary Fair Work provisions in the first instance to assess whether these are still appropriate, valid or cease as of 28 September 2020 due to the company’s eligibility or an expiry date on agreements or directions. Additionally, due to these changes, employers should also consider if they need consultation or more notice needs to be given to employees. Employers may also want to review whether they are still able to make a direction under a relevant Modern Award, registered agreement or other provisions of the Fair Work Act, if they do not qualify as a qualifying or legacy employer.
Last but not least, directions or agreements must be noted down in writing and provided with the appropriate consultation and notice requirements.
If you have any questions or would like to know more about the JobKeeper Payments version 2, please get in touch with us at IRIS HR Consulting.