There have been a lot of changes since March 2020 in relation to JobKeeper and Industrial Relations matters, and it is becoming increasingly confusing for small business owners on what they can and can’t do when it comes to staffing arrangements.
The Job Keeper provisions in the Fair Work Act have now been extended with some changes. From 28th September 2020, some employers will be able to use some of the Job Keeper provisions when it comes to temporary reduction and ‘stand down’ of employees.
Below is a detailed overview of who still qualifies to utilise the ‘stand down’ provisions and what further action you can take.
The new 10% decline in turnover test
To continue to access the JobKeeper provisions (explained further below what these include) employers must meet the turnover test. A legacy employer needs to show at least a 10% decline in actual GST turnover for the quarter in 2020, when compared to the same quarter in 2019. This can be done by obtaining a certificate from an eligible financial service provider. You will need to discuss with your Accountant if you meet the 10% decline in turnover test and obtain appropriate certification from your Accountant.
If you are a small business employer, you can choose to make a statutory declaration instead. To be considered a small business employer, you must have no more than 15 employees at a particular time.
What is a Legacy Employer?
An employer who has previously been participating in Job Keeper, but no longer qualifies or has chosen not to participate, from 28 September 2020.
Legacy Employers & Qualifying Employers
Legacy employers are different to qualifying employers. Legacy employers no longer receive Job Keeper payments but may be able to use some Job Keeper provisions. Qualifying employers are employers that qualify for Job Keeper and receive payments for their eligible employees. They can also access the Job Keeper provisions under the Fair Work Act. Employees return to their usual terms and conditions of employment if their employer does not meet the criteria and requirements for a legacy employer.
Under the extended Job Keeper provisions, Legacy Employers can:
- Stand down employees who previously received Job Keeper Payments
- This means an employer can temporarily reduce an employee’s number of days or hours worked
- Particular rules apply, see Fairwork Website for more information
- Change an employees’ duties and locations of work
Duties
- the duties must be within the employee’s skill and competency
- the duties must be safe
- the employee must have the required licences or qualifications
- the duties must be within the scope of the employer’s business operations
Location
- the new location must be suitable for the employee’s duties
- the employee must not be required to travel an unreasonable distance
- it must be safe for the employee to perform their duties at the new location
- the new location must be suitable for the employee’s duties
- the employee performing their duties at the new location must be reasonably within the scope of the employer’s business operations.
- Arrange agreements with employees to work different days or times
- The agreement must be in writing
- The agreement cannot result in the employee working less than 2 hours a day
- The arrangement must be safe
- It must be reasonably within the scope of the employers’ business operations
- The employee’s usual work hours cannot be reduced overall (this would be a stand down direction)
Note: Legacy employers who give an enabling direction or make an agreement with an employee need to comply with all existing rules in the Fair Work Act. Legacy employers need to comply with notice and consultation rules and other safeguards under the extended Job Keeper provisions. The new directions or agreements can only start on or after 28 September. Notice and consultation can start before 28 September 2020.
Similarly, Qualifying Employers can:
Make agreements with eligible employees to change days and times of work
- The changes must be safe
- The changes must be reasonably within the scope of business operations
- The employee’s usual work hours cannot be reduced overall
Note: Any agreements made under these JobKeeper provisions stop applying after 28 March 2021
Issue directions to change usual duties or location of work
- Employers needs to follow notice and consultation requirements when giving a direction.
- Directions must be safe and reasonable
To reduce an employee’s hours or days of work, a qualifying employer must:
- Qualify for and enrol in the Job Keeper scheme
- Be entitled to Job Keeper payments for the employee who is being stood down
- Be a national system employer
We understand the JobKeeper provisions under the Fair Work Act are complex and strongly suggest small business owners to stay abreast of changes as much as practically possible and where they are uncertain obtain advice from Human Resources and Employment Law experts.
For more information on the updated JobKeeper requirements for employers, please contact us on 07 5451 1118 or email reception@mjjaccountants.com.au
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