The JobKeeper scheme commenced on 30 March 2020 and has been extended until 28 March 2021. The scheme was extended in September by two extension periods for eligible entities meeting the relevant reduction in turnover requirement.

The required decline in turnover percentage to satisfy the turnover requirement is:

• 30% if your turnover is $1 billion or less
• 50% if your turnover is more than $1 billion
• 15% if you are an ACNC-registered charity other than a school or university.

Extension Period 1 – From 28 September 2020 to 3 January 2021

• Tier 1: $1,200 per fortnight (before tax)
• Tier 2: $750 per fortnight (before tax)

Due to the Christmas break, the December monthly declaration reporting deadline has been extended from the 14th January 2021 until 28 January 2021.

The ATO is also allowing eligible entities to satisfy the wage condition requirement (make payments to eligible employees) for the fortnights commencing 21 December 2020 and 3 January 2021 by 4 January 2021.

Extension Period 2 – From 4 January 2021 to 28 March 2021

The second extension period is soon to commence, 4 January 2021 to 28 March. From 4 January 2021, employers must pay their eligible employees at least:

• Tier 1: $1,000 per fortnight (before tax)
• Tier 2: $650 per fortnight (before tax)

The ATO is also allowing eligible entities to satisfy the wage condition requirement (make payments to eligible employees) for the fortnights commencing 4 January 2021 and 18 January 2021 by 31 January 2021.

Existing eligible employers

Existing eligible employers must submit a decline in turnover form before completing the business monthly declarations from 1 February 2021.

New entity enrolments

New entities enrolling for JobKeeper 2.0 must do so before 31 January 2021.

Aitken Legal recommends that eligible entities or entities that have had a reduction in turnover seek advice from their accountants as to the eligibility requirements for JobKeeper 2.0.

Is your business eligible to use workplace flexibility provisions under the Fair Work Act 2009 (Cth)?

Aitken Legal reminds employers who qualify (or previously qualified prior to 28 September 2020) for the JobKeeper scheme that flexibility provisions are available under the Fair Work Act 2009 (Cth) (“the Act”) to assist employers deal with the economic impact of COVID-19.

Qualifying Employers

A qualifying employer under the Act is an employer who meets (or continues to meet) the eligibility requirements to receive JobKeeper Payments after 28 September 2020. Qualifying employers can access existing JobKeeper flexibilities under the Act.

Specifically, this means a qualifying employer can give (or maintain):

• directions that reduce eligible employee hours;
• change their duties / location of work; and
• reach agreement on days and times of work.

It is important to remember that if, for example, an employer wants to further decrease an employee’s hours to meet the new JobKeeper Payment (or increasing hours but not to the employees pre-COVID hours), then the employer will need to follow the consultation requirements outlined in the JobKeeper Legislation, and issue / re-issue JobKeeper Stand Down Directions relevant to that change in hours obligations on JobKeeper Stand Down Directions.

It is also important to note the ability under the JobKeeper legislation to reach agreement on taking annual leave with your employees, and have them consider that request and not unreasonably refuse, was repealed from 28 September 2020.

Employees and employers retain the usual ability to reach agreement on the taking of annual leave, but without the additional protection of it being essential that the employee consider the request to take annual leave and not unreasonably refuse.

Are you a Legacy Employer?

With the introduction of JobKeeper 2.0 came the new concept of a ‘Legacy Employer’. A Legacy Employer under the Act is an employer who is not eligible for JobKeeper payment from 28 September 2020, but meets the following requirements:

• The employer must have been eligible at some point for JobKeeper payments (or chose not to participate) for the employee before 28 September 2020; and
• The employer must demonstrate a decline in turnover of 10% or more in a designated quarter and must obtain a 10% decline in turnover certificate (which we understand can be obtained from your accountant).

A legacy employer will be able to give a JobKeeper Stand Down Direction (among other directions and agreements), however it is important that legacy employers understand the more onerous requirements, such as consultation. This is an area where prospective Legacy Employers are encouraged to seek professional advice.
For advice regarding your obligations under JobKeeper 2.0, please contact one of Aitken Legal’s specialist employment lawyers today.