Positive HR blog

JobKeeper 2.0: extension of employer flexibility

On 1 September, the Federal Government obtained approval for the extension of the JobKeeper wage subsidy for an additional six months. There were also some tweaks to the JobKeeper provisions in the Fair Work Act 2009.

This means employers need to reassess their JobKeeper eligibility as there are new flexibilities depending on whether an employer is a ‘qualifying’ or a ‘legacy employer’. In this blog, we answer your frequently asked questions. If you don’t see the answer to your question, please get in touch with us.


Question: I’m still a qualifying JobKeeper business who has issued a JobKeeper enabling stand down direction prior to 28 September 2020. Do I need to reissue that direction?

Answer: Qualifying employers can continue using the JobKeeper provisions to give their employees the JobKeeper enabling stand down directions. This includes reasonable directives to work less or no hours, change responsibilities or work location.

Any JobKeeper enabling directions that were already in place on 27 September 2020 will apply (provided the employer still qualifies for the scheme).

A JobKeeper enabling directions no longer applies when it’s cancelled or replaced on 29 March 2021 — whichever comes first.


Question: What is a legacy employer? What documentation do I need to provide?

Answer:  Employers who previously qualified, but no longer qualify, for the Jobkeeper scheme are called legacy employers. Legacy employers can still use some of the JobKeeper provisions if they can confirm they have suffered a 10% decline or more in turnover for the previous quarter.

Employers can verify this by obtaining a certificate from an accountant or a statutory declaration for small businesses.

For previously eligible employees, a legacy employer can still proceed with a JobKeeper enabling stand down direction. However, the employee must not work less than 60% of their ordinary hours (as at 1 March 2020) or less than two hours a day.

Legacy employers can also make agreements with employees to work on different days or times.

Question: I’m no longer eligible for JobKeeper payments but meet the criteria for a legacy employer. When can I give my first JobKeeper enabling direction?

Answer: Legacy employers must give at least seven days’ written notice of the intention to provide a JobKeeper enabling direction (unless mutually agreed for shorter notice).

Employers must make sure they consult with employees.


Question: I’m now a legacy employer. Do I have to give a written direction for the period 28 September 2020 – 27 October 2020, and then another written direction for the period 27 October 2020 – 28 February 2021, if I wish to enforce JobKeeper enabling directions?

Answer: Legacy employers must provide their employees with written notice about whether the business has obtained a certificate or statutory declaration for the relevant quarter and also whether the JobKeeper enabling direction will continue or end.


Question: I’m a legacy employer. Do I need to obtain a new certificate for each quarter that I qualify?

Answer: Yes, a certificate or statutory declaration must be obtained for each relevant quarter.

If not, all JobKeeper enabling directions or agreements will automatically end on 28 October 2020, if the conditions don’t meet for the September 2020 quarter. And 28 February 2021, if the conditions don’t meet for the December 2020 quarter.


Question: Can I still direct employees to take annual leave?

Answer: Under the original JobKeeper provisions, qualifying employers were able to make agreements with eligible employees to take annual leave and also at half-pay. This provision no longer applies after 28 September 2020.

From 28 September 2020, employers and employees need to follow the usual rules for taking and requesting annual leave.


Next steps

The Government is continually updating advice and information on JobKeeper. To make sure you stay up-to-date on what it means for your business, please bookmark and visit our blog regularly.

As always, we’re here to help you. Its important businesses understand the rules of the new JobKeeper scheme. If you have any questions about your workplace obligations, please get in touch.



Coronavirus resources on Fair Work Australia.