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

22   Before Division 6 of Part 6-4C

Insert:

Division 5A - Flexibility provisions relating to employers previously entitled to jobkeeper payment

789GJA Jobkeeper enabling stand down - employer previously entitled to jobkeeper payment for employee

(1) If:

(a) after the commencement of this section, an employer of an employee gave the employee a direction (the jobkeeper enabling stand down direction ) to:

(i) not work on a day or days on which the employee would usually work; or

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

(iii) work a reduced number of hours (compared with the employee's ordinary hours of work);

during a period (the jobkeeper enabling stand down period ); and

(b) the jobkeeper enabling stand down direction does not require the employee to work a reduced number of hours (compared with the employee's ordinary hours of work) that is less than:

(i) if the employee does not belong to a class of employees specified in regulations made for the purposes of subparagraph (ii) - 60% of the employee's ordinary hours of work as at the start of 1 March 2020; or

(ii) if the employee belongs to a class of employees specified in the regulations - 60% of the number of ordinary hours of work ascertained in accordance with the regulations for that class; and

(c) the jobkeeper enabling stand down direction does not require the employee to work less than 2 hours in a day; and

(d) the employee cannot be usefully employed for the employee's normal days or hours during the jobkeeper enabling stand down period because of changes to business attributable to:

(i) the COVID-19 pandemic; or

(ii) government initiatives to slow the transmission of COVID-19; and

(e) the implementation of the jobkeeper enabling stand down direction is safe, having regard to (without limitation) the nature and spread of COVID-19; and

(f) the employer is not entitled to one or more jobkeeper payments for the employee:

(i) for a period that consists of or includes the jobkeeper enabling stand down period; or

(ii) for periods that, when considered together, consist of or include the jobkeeper enabling stand down period; and

(g) the jobkeeper enabling stand down period begins on or after 28 September 2020; and

(h) the employer was entitled to a jobkeeper payment for the employee for a fortnight that ended before 28 September 2020; and

(i) at the time when the direction was given, the employer held a 10% decline in turnover certificate that covers the employer for the designated quarter applicable to that time;

the jobkeeper enabling stand down direction is authorised by this section.

(2) If the jobkeeper enabling stand down direction applies to the employee, then, during the jobkeeper enabling stand down period, the employer is still required to comply with:

(a) section 323 (method and frequency of payment of wages); and

(b) the hourly rate of pay guarantee (see section 789GDB);

but is not otherwise required to make payments to the employee in respect of the jobkeeper enabling stand down period.

(3) The jobkeeper enabling stand down direction does not apply to the employee during a period when the employee:

(a) is taking paid or unpaid leave that is authorised by the employer; or

(b) is otherwise authorised to be absent from the employee's employment.

Note: An employee may take paid or unpaid leave (for example, annual leave) during all or part of a period during which the jobkeeper enabling stand down direction would otherwise apply to the employee.

(4) This section has effect despite a designated employment provision.

789GJB Duties of work - employer previously entitled to jobkeeper payment for employee

(1) If:

(a) after the commencement of this section, an employer of an employee directed the employee to perform any duties during a period (the relevant period ) that are within the employee's skill and competency; and

(b) those duties are safe, having regard to (without limitation) the nature and spread of COVID-19; and

(c) in a case where the employee was required to have a licence or qualification in order to perform those duties - the employee had the licence or qualification; and

(d) those duties are reasonably within the scope of the employer's business operations; and

(e) the employer is not entitled to one or more jobkeeper payments for the employee:

(i) for a period that consists of or includes the relevant period; or

(ii) for periods that, when considered together, consist of or include the relevant period; and

(f) the relevant period begins on or after 28 September 2020; and

(g) the employer was entitled to a jobkeeper payment for the employee for a fortnight that ended before 28 September 2020; and

(h) at the time when the direction was given, the employer held a 10% decline in turnover certificate that covers the employer for the designated quarter applicable to that time;

the direction is authorised by this section.

(2) This section has effect despite a designated employment provision.

789GJC Location of work - employer previously entitled to jobkeeper payment for employee

(1) If:

(a) after the commencement of this section, an employer of an employee directed the employee to perform duties during a period (the relevant period ) at a place that is different from the employee's normal place of work, including the employee's home; and

(b) the place is suitable for the employee's duties; and

(c) if the place is not the employee's home - the place does not require the employee to travel a distance that is unreasonable in all the circumstances, including the circumstances surrounding the COVID-19 pandemic; and

(d) the performance of the employee's duties at the place is:

(i) safe, having regard to (without limitation) the nature and spread of COVID-19; and

(ii) reasonably within the scope of the employer's business operations; and

(e) the employer is not entitled to one or more jobkeeper payments for the employee:

(i) for a period that consists of or includes the relevant period; or

(ii) for periods that, when considered together, consist of or include the relevant period; and

(f) the relevant period begins on or after 28 September 2020; and

(g) the employer was entitled to a jobkeeper payment for the employee for a fortnight that ended before 28 September 2020; and

(h) at the time when the direction was given, the employer held a 10% decline in turnover certificate that covers the employer for the designated quarter applicable to that time;

the direction is authorised by this section.

(2) This section has effect despite a designated employment provision.

789GJD Days of work etc. - employer previously entitled to jobkeeper payment for employee

(1) If:

(a) an employer of an employee was entitled to a jobkeeper payment for the employee for a fortnight that ended before 28 September 2020; and

(b) the employer gives the employee a request to make an agreement with the employer under subsection (2); and

(c) if the request is made on or after 28 September 2020 - the employer is not entitled to one or more jobkeeper payments for the employee; and

(d) if the request is made before 28 September 2020 - the employer will not be entitled to a jobkeeper payment for the employee for the fortnight beginning on 28 September 2020; and

(e) at the time when the request was given, the employer held a 10% decline in turnover certificate that covers the employer for the designated quarter applicable to that time;

the employee:

(f) must consider the request; and

(g) must not unreasonably refuse the request.

(2) If:

(a) after the commencement of this section, an employer and an employee of the employer agree in writing to the employee performing duties during a period (the relevant period ):

(i) on different days; or

(ii) at different times;

compared with the employee's ordinary days or times of work; and

(b) the performance of the employee's duties on those days or at those times is:

(i) safe, having regard to (without limitation) the nature and spread of COVID-19; and

(ii) reasonably within the scope of the employer's business operations; and

(c) the agreement does not have the effect of reducing the employee's number of hours of work (compared with the employee's ordinary hours of work); and

(d) the agreement does not have the effect of requiring the employee to work less than 2 hours in a day; and

(e) the employer is not entitled to one or more jobkeeper payments for the employee:

(i) for a period that consists of or includes the relevant period; or

(ii) for periods that, when considered together, consist of or include the relevant period; and

(f) the relevant period begins on or after 28 September 2020; and

(g) the employer was entitled to a jobkeeper payment for the employee for a fortnight that ended before 28 September 2020; and

(h) at the time when the agreement was made, the employer held a 10% decline in turnover certificate that covers the employer for the designated quarter applicable to that time;

the agreement is authorised by this section.

(3) This section has effect despite a designated employment provision.

789GJE Termination of direction if employer ceases to satisfy the 10% decline in turnover test

Test time

(1) For the purposes of this section, test time means:

(a) the start of 28 October 2020; or

(b) the start of 28 February 2021.

Termination of direction

(2) If:

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

(b) the direction applies to the employee at a test time; and

(c) at the test time, the employer did not hold a 10% decline in turnover certificate that covers the employer for the designated quarter applicable to that time;

the direction ceases to have effect immediately after the test time.

Note 1: Under section 789GCC, the designated quarter applicable to the start of 28 October 2020 is the quarter ending on 30 September 2020.

Note 2: Under section 789GCC, the designated quarter applicable to the start of 28 February 2021 is the quarter ending on 31 December 2020.

Notification of termination of direction

(3) If:

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

(b) the direction will cease to have effect immediately after a test time;

then, before the test time, the employer must give the employee a written notice that explains:

(c) that the direction will cease to have effect; and

(d) when the direction will cease to have effect.

Note: This subsection is a civil remedy provision (see Part 4-1) unless subsection (4) applies.

(4) Section 539 (civil remedy) does not apply to a contravention by an employer of subsection (3) of this section unless the employer has previously contravened that subsection on one or more occasions.

Notification of continuation of direction

(5) If:

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

(b) the direction will not cease to have effect immediately after a test time;

then, before the test time, the employer must give the employee a written notice that explains that the direction will not cease to have effect immediately after the test time.

Note 1: This subsection is a civil remedy provision (see Part 4-1) unless subsection (6) applies.

Note 2: Section 789GP deals with the circumstances in which a jobkeeper enabling direction ceases to have effect (for example, if the direction is withdrawn, revoked or replaced by the employer or if the direction is terminated under this section.

(6) Section 539 (civil remedy) does not apply to a contravention by an employer of subsection (5) of this section unless the employer has previously contravened that subsection on one or more occasions.

789GJF Termination of agreement if employer ceases to satisfy the 10% decline in turnover test

Test time

(1) For the purposes of this section, test time means:

(a) the start of 28 October 2020; or

(b) the start of 28 February 2021.

Termination of agreement

(2) If:

(a) an employer of an employee and the employee have made an agreement under subsection 789GJD(2); and

(b) the agreement is in force at a test time; and

(c) at the test time, the employer did not hold a 10% decline in turnover certificate that covers the employer for the designated quarter applicable to that time;

the agreement ceases to have effect immediately after the test time.

Note 1: Under section 789GCC, the designated quarter applicable to the start of 28 October 2020 is the quarter ending on 30 September 2020.

Note 2: Under section 789GCC, the designated quarter applicable to the start of 28 February 2021 is the quarter ending on 31 December 2020.

(3) Subsection (2) does not, by implication, prevent an agreement from being terminated otherwise than under that subsection.

Notification of termination of agreement

(4) If:

(a) an employer of an employee and the employee have made an agreement under subsection 789GJD(2); and

(b) the agreement will cease to have effect immediately after a test time;

then, before the test time, the employer must give the employee a written notice that explains:

(c) that the agreement will cease to have effect; and

(d) when the agreement will cease to have effect.

Note: This subsection is a civil remedy provision (see Part 4-1) unless subsection (5) applies.

(5) Section 539 (civil remedy) does not apply to a contravention by an employer of subsection (4) of this section unless the employer has previously contravened that subsection on one or more occasions.

Notification of continuation of agreement

(6) If:

(a) an employer of an employee and the employee have made an agreement under subsection 789GJD(2); and

(b) the agreement will not cease to have effect immediately after a test time;

then, before the test time, the employer must give the employee a written notice that explains that the agreement will not cease to have effect immediately after the test time.

Note: This subsection is a civil remedy provision (see Part 4-1) unless subsection (7) applies.

(7) Section 539 (civil remedy) does not apply to a contravention by an employer of subsection (6) of this section unless the employer has previously contravened that subsection on one or more occasions.