Changes to the Fair Work Act – Qualifying Employers

From 28 September 2020, employers who remain eligible for JK 2.0 (referred to as Qualifying employers) can no longer request employees to take annual leave – usual rules in modern awards, enterprise agreements and the Fair Work Act will apply. All other JK Direction powers continue to exist.

JobKeeper enabling stand down directions

Qualifying employers can give eligible employees a direction to reduce their hours or days of work, including to work no hours in certain circumstances. These directions are referred to as a JobKeeper enabling stand down direction. Examples are:

If a JobKeeper enabling stand down direction applies to an employee, the employee has to comply with it.

When an employer can give a direction

A qualifying employer can give an eligible employee a JobKeeper enabling stand down direction if:

How to give a direction

To give a direction qualifying employer need to:

  1. Notify the employee in writing at least 3 days before giving the JobKeeper enabling stand down direction. This applies unless the employee genuinely agrees to a shorter timeframe.
  2. Consult with the employee (or their representative) about the direction and keep a written record of the consultation.
  3. Give the employee the direction in writing.

When a direction is in place, it doesn’t apply:

Changes to the Fair Work Act – Legacy Employers

Employers who are no longer eligible for JK 2.0 (“legacy employers”) can only use (more reduced) Fair Work Act flexibilities if they meet a 10% decline in turnover test and obtain a “10% Decline in Turnover Certificate” prior to each period.

Legacy employers can give JK Directions to:

  1. Reduce employees’ hours, but the hours cannot be reduced to less than 60% of the employee’s ordinary hours as of 1 March 2020 and employees must work at least two consecutive hours per shift
  2. Change the duties of employees
  3. Change the location where the employees perform their work

To give a direction legacy employer need to:

  1. Notify the employee in writing at least 7 days before giving the JobKeeper enabling stand down direction.
  2. Consult with the employee (or their representative) about the direction and keep a written record of the consultation.
  3. Give the employee the direction in writing.

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