What You Need to Know: JobKeeper Provisions in the Fair Work Act – Extensions and Changes

Further to our announcement regarding the new 1 July employee eligibility test date for the JobKeeper Payment, the Australian Government passed the JobKeeper Extension Scheme through legislation on 1 September 2020.

Extension of JobKeeper Provisions

The passing of this legislation brought with it changes and extensions to the JobKeeper provisions in the Fair Work Act, with extended provisions coming into place from 28 September 2020 and extending to the end of the scheme on 28 March 2021. The provisions introduce the “Legacy Employer,” which is further explained below.

The JobKeeper provisions in the Fair Work Act will continue to provide employers with the flexibility to manage their employees, dependent upon the effects that COVID-19 has had on their business in relation to turnover.

This is complex legislation and we have a dedicated team of HR Consultants that can walk you through the changes that apply to your business. Please don’t hesitate to contact Allan Hall Human Resources should you require assistance with this legislation.

JobKeeper Provisions for eligible employees participating in the JobKeeper Extension Scheme 

Employers who qualify for the JobKeeper Extension Scheme will continue to remain eligible to use JobKeeper provisions. These provisions can include:

– Making a JobKeeper enabling stand down direction to work no hours, or less hours than contracted.
– Making a direction to change duties or work location.
Agreement to change days or times of work.

Any directions or agreements in place by 27 September 2020, will continue to be upheld until otherwise:
– Cancelled (voluntarily or if the employer no longer qualifies for the scheme); or
– Replaced by a new direction or agreement; or
– The scheme comes to an end on 29 March 2021;
(whichever occurs first).

Agreements to take annual leave (including at half pay) will no longer be possible, with this provision ending on 28 September 2020.

Introduction of “Legacy Employers” and how to access JobKeeper provisions (even if you are not eligible to receive JobKeeper payments)

If your business was eligible to participate in the initial JobKeeper Payment Scheme, however, does not meet the qualifying criteria for the JobKeeper Extension Scheme commencing from 28 September AND is still experiencing a minimum 10% decline in turnover for the previous quarter, then you are now classified as a Legacy Employer.

As a Legacy Employer, you are entitled to continue to utilise the JobKeeper provisions throughout the extension of the scheme.

If you have 15 or more employees and you meet the above criteria, you will be required to obtain a certificate from an eligible financial service provider.

If you have fewer than 15 employees (otherwise known as a Small Business) and you meet the above criteria you will also be required to obtain a certificate from an eligible financial service provider or alternatively you can make a statutory declaration. Click here to download a statutory declaration form from the Attorney-General’s Department.

As your accountants, Allan Hall Business Advisors is an eligible financial services provider to Legacy Employers and we can assist you in this process. Please click the button below if you require a certificate and a member of our team will be in contact with you shortly.


Provisions you are entitled to as a Legacy Employer

  1. Issue JobKeeper enabling stand down directions: This direction cannot result in the employee working less than 2 hours during a workday or result in a 60% or greater reduction to a permanent employee’s hours in consideration of their prevailing workplace arrangement as at 1 March 2020. 
  2. Issue JobKeeper enabling directions in relation to employees’ duties and locations of work. 
  3. Make agreements with employees to work on different days or at different times. 

Important notes for Legacy Employers

If you are considering making a JobKeeper direction or agreement as a Legacy Employer, we encourage you to keep in mind the following: 

  • JobKeeper directions or agreements can only be applied to those employees who were also previously eligible for JobKeeper payments through their employer. No direction or agreement can be made with an employee who was never eligible for a JobKeeper payment for example, newly recruited employees. 
  • New directions or agreements must be made if a Legacy Employer wishes to utilise the extended provisions made available to them.  
  • If Legacy Employers can satisfy the 10% decline in turnover test and can provide the required certificate or statutory declaration for each relevant quarter, then they remain permitted to make the above listed JobKeeper directions and agreements.

Important notes for the JobKeeper Extension Scheme Payment

  • Eligibility Periods for the JobKeeper Extension Payments: The ATO have confirmed there will be two JobKeeper Extension periods. JobKeeper Extension 1 will run from 28 September 2020 to 3 January 2021 (December quarter) and JobKeeper Extension 2 will run from 4 January 2021 to 28 March 2021 (March quarter). The ATO have further confirmed that you can be eligible for JobKeeper Extension 2 (March quarter 2021) payments even if you were not eligible for JobKeeper Extension 1 (December quarter 2020) payments. Please click here for more information. 
  • Recap the 1 July employee eligibility test date here. 
  • Recap the extension of the JobKeeper Payment Scheme here. 

Need help?

This is complex legislation and our team at Allan Hall Human Resources can assist you with your JobKeeper provisions, stand downs and any other questions related to the Fair Work Act. Our team at Allan Hall Business Advisors can assist you with your certificate and statutory declaration requirements should you now be classified as a Legacy Employer. Please do not hesitate to contact us should you require assistance or have any further questions.