Search
  • Stephen Berriman

Strange times & JobKeeper

We are opening the doors of our new multidisciplinary legal practice during strange times indeed.

We have been spending a lot of time guiding businesses through the challenges of lost sales, dealing with debtors, creditors and landlords, implementing widespread working from home arrangements, managing tough conversations with employees, making tough decisions about employment relationships and, in some cases, temporarily (thankfully not permanently) closing doors.

In this article, we briefly talk about the JobKeeper enabled stand down provisions, introduced as part of the recent amendments to the Fair Work Act, which have featured in many recent clients’ needs.

Strange times indeed

We are opening the doors of our new multidisciplinary legal practice during strange times indeed. Our FMCG food and on-line retail clients seem to be selling more than ever while other clients in hospitality and events have gone into hibernation.

We have been spending a lot of time guiding businesses through the challenges of lost sales, dealing with debtors, creditors and landlords, implementing widespread working from home arrangements, managing tough conversations with employees, making tough decisions about employment relationships and, in some cases, temporarily (thankfully not permanently) closing doors.

In our experience and opinion, the JobKeeper Scheme will save businesses and jobs. Despite some anomalies, the system’s design, legislative drafting, speed to reach parliament and unprecedented constructive input, debate, compromise and cooperation from both major political parties, unions (particularly the ACTU) and business associations and leaders have been nothing but remarkable (unseen in our polity since the mid-80s). The result is a testament to what can be achieved in public policy with a common aim and strong will.

There has been plenty written about the JobKeeper Scheme, eligibility criteria for employers and employees, interpretation and application of the Rules (Coronavirus Economic Response Package (Payments and Benefits) Rules 2020), the administrative timelines and processes for enrolments, nominations and claims and complementary changes to the Fair Work Act.


In this article, we briefly talk about the JobKeeper enabled stand down provisions.

The Fair Work Act has been varied to insert a new Part 6-4C. The new provisions, applicable until 28 September 2020, will enable employers who are entitled to JobKeeper payments in relation to a particular employee to:

  1. give the employee temporary and partial stand down directions in certain circumstances,

  2. temporarily alter the employees' usual duties and locations of work in certain circumstances,

  3. agree with the employee on altering an employees' days and times of work and use of annual leave in certain circumstances.


The following deals with the first of the above provisions.


Direction reducing an employee's ordinary hours of work (JobKeeper enabling stand down direction)


By giving an employee a JobKeeper enabling stand down direction, an employer that is entitled to the JobKeeper payment in relation to that employee can direct the employee to:

  • not work on a day or days that the employee would usually work,

  • work for a shorter time than the employee would normally work on one or more days, or

  • work fewer hours than the employee's ordinary hours of work.


As an employer, you can give a JobKeeper enabling stand down direction if the employee cannot be usefully employed for their normal days or hours because of the COVID-19 pandemic or government initiatives to slow the transmission of COVID-19.

Before you do, you should confirm that you are entitled to JobKeeper payments for your employees!


While a JobKeeper enabling stand down direction applies, you must ensure the employee's hourly base rate of pay is not less than what would have applied if the direction had not been given. You must also meet the wage condition and minimum payment guarantee (below).


A direction does not apply if it is unreasonable in all of the circumstances. For example, a direction may be unreasonable depending on the impact it will have on the employee's caring responsibilities.


A JobKeeper enabling stand down direction remains in effect until it is revoked or replaced by you, or until the JobKeeper provisions cease completely on 28 September 2020, whichever occurs first.


Wage condition


You must pay amounts totalling at least $1,500 for the relevant fortnight to or in respect of the employee.


Minimum wage guarantee


You must pay the employee for the relevant fortnight the greater of:

  • amounts totalling at least $1,500, or

  • the amount payable to the employee for the work they performed.


The total of $1,500 includes:

  • salary, wages, commission, bonus or allowances paid to the employee,

  • tax withheld,

  • salary sacrifice superannuation contributions, and

  • agreed deductions.


Be aware that the following laws continue to apply:


  • requirements to pay wages for work performed,

  • general protections laws,

  • unlawful termination laws,

  • anti-discrimination laws,

  • laws dealing with health and safety obligations of employers and employees,

  • workers' compensation laws,

  • unfair dismissal laws.


Consultation, form of direction and records


A JobKeeper enabling stand down direction must be in writing. You need to:

  • notify the employee in writing at least 3 days before giving the direction (unless the employee genuinely agrees to a shorter timeframe),

  • consult with the employee (or their representative, if applicable) about the direction, and

  • keep a written record of the consultation.


A few related matters


  • If an employee is taking paid or unpaid leave (e.g. annual leave) or is otherwise entitled to be absent from work (e.g. on a public holiday), the direction doesn’t apply.

  • If the employee normally receives a leave payment that would be less than the JobKeeper payment for a fortnight, the employee is still entitled to an amount that is equal to the JobKeeper payment for the fortnight (employees need to either be paid normally during these periods, or $1500 (before tax) – whichever is more).

  • Employees subject to the JobKeeper enabling stand down direction still accrue their usual leave entitlements for the period the direction applies (as if the direction hadn't been given to them).

  • Service is counted for all purposes, including where the direction reduced an employee’s hours to zero.

  • Any redundancy pay and payment in lieu of notice of termination are calculated as if the direction had not been given.

  • Employees who are subject to a JobKeeper enabling stand down direction can request to take on secondary employment, training or professional development. You must consider these requests and can’t unreasonably refuse them.


This article has just scratched the surface of the changes to the Fair Work Act and the JobKeeper requirements, but it touches on an area that has featured highly in our recent services. If you have any questions about the article or any other related matter or want assistance to navigate your way through the JobKeeper requirements, please contact us.

26 views

Level 36 Governor Phillip Tower

1 Farrer Place, Sydney NSW 2000 

02 9241 2102

info@berriman.law

Send Us a Message

2020 Linked Legal Pty Limited atf Berriman Investment Trust (t/as Berriman Law & Advisory)

Liability limited by a scheme approved under Professional Standards Legislation. Privacy Policy

  • LinkedIn