Amendments to the JobKeeper scheme

On 3 September 2020, the Coronavirus Economic Response Package (JobKeeper Payments) Amendment Act 2020 (Cth) (Act)¹ passed both houses of the Commonwealth Parliament, extending the JobKeeper scheme, varying employer JobKeeper eligibility requirements and making amendments to the Fair Work Act 2009 (Cth) (FW Act).

These changes will come into effect from 28 September 2020, with the existing JobKeeper scheme remaining in place until 27 September 2020.

In summary, the Act:

• Extends the JobKeeper payment by a further six months to March 2021.
• Changes the employer eligibility to the JobKeeper scheme to actual, rather than projected, GST turnover loss.
• Extends the operation of the temporary Part 6-4C FW Act until 28 March 2021. However, flexibilities in Part 6-4C concerning annual leave will still be repealed at the start of 28 September 2020.

Extension JobKeeper Scheme

The Act extended the JobKeeper period which will now end on 28 March 2021, instead of 31 December 2020.²

Changes to employer eligibility – new turnover loss test

From 28 September 2020, businesses seeking to claim the JobKeeper payment will be required to demonstrate that they have suffered a decline in turnover using actual GST turnover (rather than projected GST turnover).

In order to be eligible for the first JobKeeper payment extension period of 28 September 2020 to 3 January 2021, businesses will need to demonstrate that their actual GST turnover has fallen in the September quarter 2020 (July, August, September) relative to a comparable period (generally the corresponding quarter in 2019).

In order to be eligible for the next JobKeeper extension period of 4 January 2021 to 28 March 2021, businesses will need to demonstrate that their actual GST turnover has fallen in the December quarter 2020 (October, November, December) relative to a comparable period (generally the corresponding quarter in 2019).

A reassessment will be made for the period between 4 January 2021 and 28 March 2021, by reference to the actual GST turnover loss in the December quarter of 2020.³

Amendments to the FW Act

The operation of the temporary Part 6-4C FW Act has been extended until 28 March 2021. However, flexibilities in Part 6-4C concerning annual leave will still be repealed at the start of 28 September 2020.⁴ Therefore, with the exception of annual leave, JobKeeper enabling directions given by qualifying employers that are in place on 27 September 2020 will automatically carry over from 28 September 2020 if the employer remains eligible to receive JobKeeper payments.

The Act also creates two broad categories of employers who can access particular flexibilities under the Part in certain circumstances from 28 September 2020:

• Employers who are eligible for JobKeeper payments after 28 September 2020 (qualifying employers); and
• Employers who did receive one or more JobKeeper payments in the period prior to 28 September 2020, but no longer qualify for a payment after 28 September 2020 (legacy employers). Legacy employers who have a certificate stating that they have experienced a 10% decline in turnover will have access to modified flexibility measures from 28 September 2020.

Key takeaways

Employers have the onus of demonstrating their business meets the relevant turnover requirements to be eligible for the JobKeeper payment.

Employers can still have recourse to the different JobKeeper enabling directions in response to the COVID-19 pandemic (with the exception of annual leave). These include enabling stand down direction and a direction to perform different duties and work at different places.

If in doubt, employers should seek legal advice or speak to us about strategies.