For everyone The law & you: Knowing your rights under JobKeeper 2.0

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It’s typical that as soon you get your head around a complex set of rules, they go and change them. And changes to the JobKeeper scheme have not exactly simplified the system.

The federal government’s wage subsidy scheme has been extended until 28 March 2020, however the rate was reduced on 28 September from $1,500 (gross) to either $1,200 or $750 per fortnight, depending on whether the employee was a full-time, casual or part-time employee. Part time is defined as working 20 hours per week or less. The assessment of hours is based on hours worked pre-COVID.

The extension period has been divided into two stages: ‘extension 1’ from 28 September 2020 to 3 January 2021; and ‘extension 2’ from 4 January 2021 to 28 March 2021. In ‘extension 2’, the payments will be reduced again to $1000 or $650 per fortnight, depending on whether you’re full time, part time or casual.

Eligibility for casuals

The JobKeeper scheme continues to apply to casual employees provided that the employee is considered a ‘long-term casual’ performing work that is ‘regular and systematic’. The 12-month assessment period is now from 2 July 2019 to 1 July 2020, meaning there may be casuals who were not eligible under the first period of JobKeeper who now qualify for payments.

For a casual to be considered ‘regular and systematic’ it is not necessary to have worked the same days and hours over each pay period. For example, if because of the coronavirus an individual has worked fewer shifts in the period March to June 2020, they can still be deemed ‘regular and systematic’. Periods of authorised absence do not necessarily break the service, either.

Union membership ensures your interests are represented at work – and in volatile times such as these, is crucial for ensuring that you can access the support you need.

Fewer employers qualify

JobKeeper 2.0 includes several amendments to the eligibility requirements for businesses, and the introduction of ‘Legacy Employers’. The changes will see many businesses no longer qualify for the scheme, due to new requirements for businesses to satisfy reduction of revenue tests based on the ‘actual’ downturn, as opposed to ‘projected’ downturn required by the first period of the scheme.

Legacy Employers are employers that were entitled to a JobKeeper payment for an employee prior to 28 September 2020, but no longer qualify under JobKeeper 2.0. Legacy Employers who satisfy a 10% decline in turnover test and who hold a 10% decline ‘turnover certificate’ can continue to give modified JobKeeper Enabling Directions (or ‘JEDs’), including reducing an employee’s hours, as long as the reduction in hours is less than 40%. JEDs must be in writing, must not be unreasonable, and are subject to notice and consultation requirements.

Legacy Employers must provide employees with seven days written notice of any directions; the period required for non-legacy employers is three days notice.

Employers on JobKeeper 2.0 can no longer request that employees reach agreement to take their annual leave. Except for agreements to take annual leave, any existing JobKeeper enabling directions or agreements will automatically be extended beyond the original repeal date of 28 September 2020.

Uncertain times ahead

As businesses look to reopen or increase their operations, employees should anticipate further requests from their employers in respect of changes to their hours of work, duties performed, location of work, start and finish times and, for some, potential redundancy.

It is important to note that your contract terms remain in effect until there is an agreement to alter them. An employer cannot unilaterally change your contractual terms of employment, such as altering your hours or days of work, without your agreement.

When faced with such requests, it is important to remember that you have the right to refuse unreasonable requests and that you are entitled to be consulted on the effects of proposed changes. Consultation is not perfunctory advice on what is about to happen; it is providing an individual with a meaningful opportunity to influence their employer’s decision. The AEU provides legal advice regarding all workplace related matters, including JobKeeper. Union membership ensures your interests are represented at work – and in volatile times such as these, is crucial for ensuring that you can access the support you need.

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