Coronavirus Economic Response Package (Jobkeeper Payments) Amendment Act 2020 (81 of 2020)

Schedule 2   Jobkeeper-related provisions of the Fair Work Act 2009

Part 2   General amendments

Fair Work Act 2009

29   After section 789GM

Insert:

789GMA Consultation - employer previously entitled to jobkeeper payment for employee

(1) A jobkeeper enabling direction given by an employer to an employee of the employer under section 789GJA, 789GJB or 789GJC does not apply to the employee unless:

(a) the employer gave the employee written notice of the employer's intention to give the direction; and

(b) the employer did so:

(i) at least 7 days before the direction was given; or

(ii) if the employee genuinely agreed to a lesser notice period - during that lesser notice period; and

(c) during the 7-day period ending when the direction is given, the employer complied with subsections (4) to (8) in relation to the direction.

(2) The regulations may require that a notice under paragraph (1)(a) must be in a prescribed form.

Consultation

(3) During the 7-day period ending when a jobkeeper enabling direction is given by an employer to an employee of the employer under section 789GJA, 789GJB or 789GJC, the employee may appoint a representative for the purposes of consultation in relation to the direction.

Note: An employee organisation may be a representative of the employee.

(4) If, during the 7-day period ending when a jobkeeper enabling direction is given by an employer to an employee of the employer under section 789GJA, 789GJB or 789GJC:

(a) the employee appoints a representative for the purposes of consultation in relation to the direction; and

(b) the employee advises the employer of the identity of the representative;

the employer must recognise the representative.

(5) During the 7-day period ending when a jobkeeper enabling direction is given by an employer to an employee of the employer under section 789GJA, 789GJB or 789GJC, the employer must consult with the employee or the employee's representative (if any).

(6) For the purposes of the consultation, the employer must:

(a) provide to the employee or the employee's representative (if any) information about the proposed direction, which may, for example, include any of the following:

(i) information about the nature of the direction;

(ii) information about when the direction is to take effect;

(iii) information about the expected effects of the direction on the employee; and

(b) invite the employee or the employee's representative (if any) to give their views about the impact of the proposed direction on the employee (for example, any impact in relation to the employee's family or caring responsibilities).

(7) However, the employer is not required to disclose confidential or commercially sensitive information to the employee.

(8) The employer must:

(a) give prompt and genuine consideration to any views given under paragraph (6)(b); and

(b) do so within the 7-day period ending when the direction is given.

(9) If:

(a) a jobkeeper enabling direction is given by an employer to an employee of the employer under section 789GJA, 789GJB or 789GJC; and

(b) the employer takes action under subsection (4), (5), (6) or (8) in relation to the direction before the start of the 7-day period ending when the direction is given;

then:

(c) the action is as valid and effective as if it had been done during the 7-day period; and

(d) if the employee takes action under subsection (3) in relation to the direction before the start of the 7-day period - the action is as valid and effective as if it had been done during the 7-day period.

(10) Subsections (1) to (8) do not apply to a jobkeeper enabling direction (the relevant direction ) given by an employer to an employee of the employer under a particular section of this Part if:

(a) the employer previously complied with paragraphs (1)(a), (b) and (c) and subsections (4) to (8) in relation to a proposal to give the employee another direction under that section; and

(b) in the course of consulting the employee (or a representative of the employee) about the proposal, the employee (or the representative of the employee) expressed views to the employer; and

(c) the employer considered those views in deciding to give the relevant direction.

(11) An employer must keep a written record of a consultation:

(a) with an employee of the employer; or

(b) with a representative of an employee of the employer;

that is covered by paragraph (1)(c).