The JobKeeper 2.0 legislation, passed last week, will ensure that newly-ineligible employers will maintain access to some workplace flexibility measures under the Fair Work Act 2009 (Cth) (FW Act), if they can prove an ongoing reduction in revenue during the COVID-19 crisis.

The Coronavirus Economic Response Package (JobKeeper Payments) Amendments Bill 2020, dubbed "JobKeeper 2.0", is set to drastically cut the number of businesses eligible for the JobKeeper wage subsidy, when it takes effect from 28 September 2020.

However, JobKeeper 2.0 will mean that so-called "legacy employers" – those that previously qualified for JobKeeper payments but are unable to qualify for JobKeeper 2.0 – will retain access over the next 6 months to some JobKeeper flexibility measures contained in the FW Act, if they are experiencing a 10% decline in turnover.

These flexibility measures, including giving JobKeeper-enabling directions or requests for employees to change their days or times of work, will be modified for legacy employers.

Under JobKeeper 2.0, legacy employers will still be able to cut worker hours, but only up to 40% of the employee's pre-coronavirus ordinary hours, to be assessed as at 1 March 2020.  However, legacy employers will be required to provide staff with an increased period of 7 days' written notice before giving a JobKeeper-enabling direction (up from 3 days), will not be permitted to ask staff to work less than 2 hours per day and will have expanded consultation requirements.

Employers who qualify for JobKeeper 2.0 payments will retain access to the full suite of JobKeeper flexibility measures in the FW Act, except the previous flexibility measure which empowered JobKeeper employers to direct staff to take annual leave, in certain circumstances, which will be eliminated entirely under JobKeeper 2.0.

There is also an exemption for small business employers with fewer than 15 employees, to allow those employers to provide a statutory declaration to attest to a 10% decline in turnover, rather than obtaining a turnover certificate from an eligible financial services provider.

For more information about the JobKeeper 2.0 provisions, and other key changes, please click on this link to be directed to our Tax Team's earlier article: "Will you be entitled to JobKeeper 2.0 – Here's what we know so far…".

Brown Wright Stein's employment team will also be hosting a “JobKeeper 2.0 - September & Beyond” webinar on Tuesday 22 September 2020, to discuss the key changes set out in this article and the JobKeeper provisions of the FW Act. Click here to register now, places are limited.

Please contact our employment team for more information.

The material in this article was correct at the time of publication and has been prepared for information purposes only. It should not be taken to be specific advice or be used in decision-making. All readers are advised to undertake their own research or to seek professional advice to keep abreast of any reforms and developments in the law. Brown Wright Stein Lawyers excludes all liability relating to relying on the information and ideas contained in this article.

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