If not a critical week, this week commencing 6 April 2020 will certainly be a week that provides more certainty to employers on the JobKeeper subsidy scheme.  At this time, the legislation is not known and by the time you read this, drafts of the legislation will be with the Government, the Opposition, the Cross-benchers and other interested groups like Employer representative bodies and the ACTU.

It appears that the Government wish to pursue changes associated with the JobKeeper subsidy by amending the Fair Work Act.  This could have particular consequences for arrangements that qualifying employers have with their employees and could be potentially far different from what they have dealt with for some years.  It could also be the case that Awards are impacted directly, with legislation potentially seeking a relaxation of particular requirements under Awards.  At this time, we are not aware of what those changes might be, but the Government obviously has in mind that employers should not be caught in ‘underpayment claims’ relative to the days, times and hours employees are working, and where they are in receipt of the JobKeeper subsidy.

There is also a suggestion that there might be legislative change on the taking of, in particular, annual leave and whether it might be formally directed and how that might be paid, bearing in mind the JobKeeper subsidy.

It could also be the case that this legislation could immediately impact upon changes that have already been made, and intended to be made, to Awards by the Fair Work Commission and for the purpose of flexibility during this COVID-19 crisis.

More will become clear once we know what has passed through the Federal Parliament and which the Government says will occur sometime on Wednesday 8 April 2020.  We expect that Parliament might sit long into the night and, potentially, the Senate might propose changes which would then have to go back to the House of Representatives for review and then return to the Senate.

Certainly, the Government will need to decide on:

1. Qualification factors for receipt of the JobKeeper subsidy scheme;
2. How that might be paid, including as to the prospect of that being the totality of the salary or wages of an employee (no matter what they were paid previously);
3. How that subsidy might be paid in arrangements where employers are ‘topping up’ the pay to another figure, including to the employees’ previous salary or wage.

There are, of course, many other questions to be clarified and as soon as we are able to, Aitken Legal will be updating employers on what they need to know.