One of the more important aspects of the Bill relates to employers who were entitled to JobKeeper payments before 28 September 2020, but will no longer be entitled post 28 September 2020 and hold a 10% decline in turnover certificate.
A 10% decline in turnover certificate is one provided by an eligible financial service provider, and must confirm that the employer satisfied the 10% decline in turnover test for the designated quarter applicable to a specified period of time. Financial service providers who are providing the certificates are required to be independent and external to the employer.
Such employers will continue to be able to issue JobKeeper enabling stand down directions, such as reductions in hours of work, subject to new conditions including:
- The direction does not require the employee to work a reduced number of hours (compared with the employee's ordinary hours of work) that is less than (generally) 60% of the employee's ordinary hours of work as at 1 March 2020; and
- The direction does not require the employee to work less than two hours in a day.
Existing conditions regarding JobKeeper enabling stand down directions for such employers will be maintained. For example, this includes that the employee cannot usefully be employed for the employee's normal days or hours during the JobKeeper enabling stand down period, because of changes to business which are attributable to COVID-19 or other government initiatives to slow the transmission of the virus.
Importantly, there will also be more onerous consultation obligations which apply to employers who are no longer entitled to receive the JobKeeper payment but have a 10% decline in turnover certificate.
Under those new consultation provisions:
- The employer must give written notice of their intention to give the direction at least seven days before the direction was given, unless the employee agrees to a lesser period;
- The employee can appoint a representative for the purpose of consultation;
- The employer must recognise the appointed representative and consult with the employee or the representative;
- For the purpose of the consultation, the employer must provide certain information about the direction and invite the employee or the representative to give their views about the impact of the proposed direction on the employee, including regarding family or caring responsibilities; and
- The employer must give prompt and genuine consideration to any such views expressed.
The Bill will retain much needed flexibility for employers who are no longer entitled to the JobKeeper payment but can still satisfy the 10% decline in turnover test.
If you require further information or have any queries in relation to this legal update, please contact Mark Curran or a member of our Employment team.