Fair Work Commission

Overview

See Fair Work Act 2009 ss.789GC, 789GDC, 789GE, 789GF, 789GJA, 789GJB, 789GJC and Division 6 of Part 6-4C

Under Part 6-4C, employers that qualify for the jobkeeper scheme and some legacy employers can give ‘jobkeeper enabling directions’.

Legacy employers are employers that were entitled to a jobkeeper payment for an employee prior to, but not on or after, 28 September 2020. Legacy employers that satisfy the 10% decline in turnover test and hold a 10% decline in turnover certificate can give modified jobkeeper enabling directions.

There are 3 types of jobkeeper enabling directions:

1. a jobkeeper enabling stand down direction, including a direction to reduce an employee’s hours, under s.789GDC or s.789GJA
2. a direction in relation to the duties to be performed by the employee under s.789GE or s.789GJB, and
3. a direction to perform duties at a place different from the employee’s normal place of work, including their home, under s.789GF or s.789GBC.

Jobkeeper enabling directions apply even if they are not consistent with:

• the Fair Work Act (subject to s.789GZ)
• a ‘fair work instrument’ (such as a modern award or an enterprise agreement)
• a contract of employment, or
• a transitional instrument (within the meaning of item 2 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009).

Jobkeeper enabling directions must be in writing, must not be unreasonable, and are subject to notice and consultation requirements. The notice and consultation requirements are different for legacy employers.

Subject to any order made by the Fair Work Commission in dealing with a dispute about the operation of Part 6-4C, jobkeeper enabling directions operate until they are withdrawn, revoked or replaced. All jobkeeper enabling directions cease to have effect at the start of 28 September 2020.

Jobkeeper enabling directions under sections 789GDC, 789GE or 789GF cease to have effect if the employer ceases to be entitled to jobkeeper payments for the employee who has been given the direction. Jobkeeper enabling directions given by legacy employers under ss.789GJA, 789GJB or 789GJC:

• cease to have effect on 28 October 2020 if the employer does not hold a 10% decline in turnover certificate for the quarter ending on 30 September 2020, and
• cease to have effect on 28 February 2021if the employer does not hold a 10% decline in turnover certificate for the quarter ending on 31 December 2020.

All jobkeeper enabling directions cease to have effect on 29 March 2021.

The Minister for Industrial Relations has the power to exclude one or more specified employers from being able to give jobkeeper enabling directions,^[1] but this has not yet occurred.

Jobkeeper enabling directions given before 28 September 2020

Jokeeper enabling directions made prior to 28 September 2020 automatically continue in effect after 28 September 2020, provided they continue to be authorised by Part 6-4C.

If an employer ceases to qualify for the jobkeeper scheme on 28 September 2020, any jobkeeper enabling directions it gave before that date cease to have effect. The employer may be able to give new jobkeeper enabling directions as a legacy employer: see Jobkeeper enabling directions – employers previously entitled to jobkeeper payments.

Reference