The JobKeeper Directives + Fair Work Changes - MB+M
The JobKeeper Directives + Fair Work Changes
Financial Advice

The JobKeeper Directives + Fair Work Changes

The MB+M Business Services team wants to bring to your attention that on 1 September 2020, legislation to extend the JobKeeper scheme passed in Parliament. The JobKeeper Directives + Fair Work Changes define how extended provisions will take effect from 28 September 2020. The last day the extended provisions will apply is 28 March 2021.

We have provided detailed information here related to the extension & changes in this Comprehensive Guide to assist you understand how this affects your business

If after reading this article you have questions, or need help, then call MB+M on 03 5821 9177 and speak to an experienced Business Adviser.


The JobKeeper scheme helps employers who have been significantly affected by coronavirus to keep paying their employees. It also gives certain employers increased flexibility to help manage their business by using the Fair Work Act JobKeeper provisions (JobKeeper provisions).

Read on for information about the extension of the Fair Work Act JobKeeper provisions. For information about the extension of JobKeeper payments, visit the Australian Taxation Office (ATO) website – JobKeeper Payment external-icon.png.

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Extension of the Fair Work Act JobKeeper provisions

Under the extended provisions, qualifying employers who are receiving JobKeeper payments for their employees (and continue receiving them after 27 September 2020) can continue using the JobKeeper provisions to:

  • give their employees JobKeeper enabling stand down directions (for example, a direction to work less or no hours)
  • give their employees JobKeeper enabling directions (for example, a direction to change duties or work location)
  • make agreements with their employees to change their days or times of work (for example, an agreement that an employee will work on different days).

However, these employers will no longer be able to use the JobKeeper provisions to make agreements with their employees to take annual leave (including at half pay). Those provisions will stop applying from 28 September 2020. See Agreements to take annual leave below.

Any JobKeeper enabling directions or agreements to change an employee’s days or times of work already in place on 27 September 2020 keep applying after this date as long as the employer continues to qualify for the scheme.

For these employers, JobKeeper enabling directions or agreements stop applying when they’re cancelled, withdrawn or replaced, or on 29 March 2021 (whichever comes first).

Learn more about employer eligibility and the extended JobKeeper scheme on the ATO website – JobKeeper extension external-icon.png.

More information on the JobKeeper provisions:

Legacy employers and information for eligible financial service providers

The extended provisions allow some employers, known as legacy employers, to continue using some of the JobKeeper provisions (with some changes) for their previously eligible employees if they meet certain conditions. These conditions include:

  • previously participating in the JobKeeper scheme, but no longer qualifying from 28 September 2020
  • demonstrating at least a 10% decline in turnover for the previous quarter, by obtaining a certificate from an eligible financial service provider, or a statutory declaration for small businesses.

We’re currently updating our information about legacy employers and guidance for eligible financial service providers and we’ll provide more detailed information soon. Please check back here regularly.

Statutory declarations for small businesses

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Small business employers with less than 15 employees can make a statutory declaration instead of getting a certificate. The statutory declaration needs to:

  • state that the employer has experienced a 10% decline in turnover for the relevant quarter
  • be completed by a person who is the employer, or is authorised by the employer, and has knowledge of the employer’s financial matters.

To use the JobKeeper provisions in a particular quarter, small business legacy employers need to have a statutory declaration before the start of that quarter.

The Attorney-General’s Department has helpful guidance on a completing a statutory declaration as well as a downloadable template. See Attorney-General’s Department website – Complete a statutory declaration external-icon.png.

Satisfying the 10% decline in turnover test each quarter

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Legacy employers will need to satisfy the 10% decline in turnover test and have a certificate (or statutory declaration) for each relevant quarter. If they don’t, all JobKeeper enabling directions or agreements will automatically end on:

  • 28 October 2020, if the above conditions aren’t met for the September 2020 quarter
  • 28 February 2021, if the above conditions aren’t met for the December 2020 quarter.
Legacy employers & JobKeeper directions and agreements

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Under the extended provisions, legacy employers can, for their previously eligible employees:

  • issue JobKeeper enabling stand down directions (with some changes)
  • issue JobKeeper enabling directions in relation to employees’ duties and locations of work
  • make agreements with employees to work on different days or at different times (with some changes).

Any legacy employer issuing directions or making agreements must follow the enhanced notice and consultation requirements under the JobKeeper provisions.

Legacy employers also need to give their employees who are subject to a JobKeeper enabling direction or agreement written notice about whether:

  • they’ve obtained a certificate or statutory declaration for the relevant quarter
  • the JobKeeper enabling direction or agreement will continue or end.
JobKeeper enabling directions or agreements in place for legacy employers on 27 September 2020

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Any JobKeeper enabling directions or agreements that legacy employers already have in place will end on 27 September 2020. They’ll need to reissue or make new directions and agreements. 

JobKeeper enabling stand down directions

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Legacy employers can continue to issue JobKeeper enabling stand down directions to their previously eligible employees after 27 September 2020, provided the direction doesn’t:

  • result in an employee working less than 2 hours on a work day
  • reduce a full-time or part-time employee’s hours of work to less than 60% of their ordinary hours as at 1 March 2020.

See JobKeeper enabling stand down directions.

JobKeeper enabling directions to change duties or work location

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Legacy employers can continue to give a direction to change a previously eligible employee’s duties or work location. See Changing duties, work location or days and times of work under the JobKeeper scheme.

JobKeeper agreements to change days or times of work

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Legacy employers can continue to make agreements to change a previously eligible employee’s days or hours of work. The agreement can’t result in the employee working less than 2 hours per day. See Changing duties, work location or days and times of work under the JobKeeper scheme.

More information on the JobKeeper provisions:

Agreements to take annual leave

Under the original JobKeeper provisions, qualifying employers could make agreements with eligible employees to take annual leave. This included taking annual leave at half-pay.

This provision has been repealed and stops applying from 28 September 2020. From this date, any agreement that was made under these provisions stops applying.

From 28 September 2020, employers and employees need to follow the usual rules for taking and requesting annual leave, including those set by an award or agreement.

Learn more about the usual rules for taking annual leave on our Annual leave page.

Enforcement and dealing with disputes

The Fair Work Commission (Commission) continues to have the power to deal with disputes related to the JobKeeper provisions under the extended scheme.

The Commission also has the power to deal with some disputes related to whether:

  • legacy employers hold certificates for the 10% decline in turnover test
  • the certificates have been issued by an eligible financial service provider.

Get more information on the role the Commission has in dealing with JobKeeper disputes at Fair Work Commission – JobKeeper disputes .

We (the Fair Work Ombudsman) continue to help employers and employees understand and follow Australian workplace laws for the JobKeeper scheme. We do this by:

  • providing information and education
  • providing tools, templates and guides
  • helping you resolve workplace issues.

Our Resolving workplace issues during coronavirus page has more information and resources to help you resolve workplace disputes. It also has information about our enforcement role under the JobKeeper scheme and who can help with:

  • questions about eligibility for the JobKeeper scheme
  • disputes about directions or requests under the JobKeeper scheme.

More information

Visit the ATO website for information about enrolling for JobKeeper, satisfying the 10% decline in turnover test and JobKeeper payments:

Need Help?

The above is a very comprehensive guide to JobKeeper and associated Fair Work provisions. These can be convoluted and confusing. If you have questions, or need help, call MB+M on 03 5821 9177 and speak with a Business Services Advisor.