Retailers can take some comfort in knowing that the JobKeeper flexibilities in the Fair Work Act have also been extended, however substantive changes have been made to these provisions, as outlined below.
1. Employer eligibility
To qualify for the original JobKeeper Scheme (JobKeeper 1.0), employers needed to satisfy the original decline in turnover test, meaning their projected GST turnover for the turnover test period had fallen short of their current GST turnover for the relevant comparison period, by the required percentage (30% or 50% depending on the size of the business).
To ensure that the JobKeeper extension (JobKeeper 2.0) targets employers still significantly impacted by Covid, employers now need to satisfy both the original decline in turnover test and an additional test to qualify for JobKeeper 2.0.
The new actual decline in turnover test must be satisfied separately for the two extension periods. Employers must demonstrate that their actual GST turnover for the applicable quarter has declined by the required percentage (30 per cent or 50 per cent), relative to the comparable quarter in 2019. For Extension 1, the applicable quarter is the quarter ending 30 September 2020 and for Extension 2, this is the quarter ending 31 December 2020.
Employers that already qualified for JobKeeper 1.0 are not required to apply the original decline in turnover test again (as they have already satisfied the test).
However, employers that have not previously enrolled in the JobKeeper scheme are required to demonstrate that they satisfy both the original decline in turnover test and the new decline in turnover test.
The original decline in turnover test remains the same, except that it allows the additional choice for employers to compare the projected GST turnover in relation to any of the following:
· a calendar month that ends after 30 September 2020 and before 1 January 2021; or
· the quarter ending on 31 December 2020.
What does this mean for retailers?
Retailers currently receiving JobKeeper payments under JobKeeper 1.0 must apply the new actual decline in turnover test to ascertain whether they will be eligible for JobKeeper fortnights on or after 28 September 2020.
Retailers who did not choose to enrol in JobKeeper 1.0 may choose to enrol in JobKeeper 2.0. In order to qualify for JobKeeper 2.0, these retailers must satisfy both the original decline in turnover test and the new actual decline in turnover test. They must also comply with all the requirements of JobKeeper 1.0 including issuing employee nomination notices to staff.
2. JobKeeper payment rates
Under JobKeeper 1.0, all eligible employees – whether full time, part-time or long-term casuals – were entitled to receive a JobKeeper payment of $1,500 (gross) per fortnight.
However, under JobKeeper 2.0, the amount payable for JobKeeper 2.0 has been reduced from $1,500 to one of two JobKeeper payment rates.
The two-tiered JobKeeper payment for the two extension periods is set out in the table below (in gross amounts):
|Extension 1||Extension 2|
|80 hours or more in the “reference period”||$1,200 per fortnight||$1,000 per fortnight|
|Less than 80 hours in the “reference period”||$750 per fortnight||$650 per fortnight|
Employees are to be assessed based on their hours of work in the reference period that is the most beneficial to the employee – that is, their payment rates for JobKeeper 2.0 are based on their hours worked (including paid absences for leave or public holidays) in the 28-day period before either 1 March 2020 or 1 July 2020 – whichever is greater.
Employers do not have discretion to choose the applicable reference period – they must use the reference period that results in the employee receiving the higher rate of JobKeeper payment.
There is no further testing of the hours of work for Extension 2 to determine the rate of JobKeeper payments.
Employers must notify the ATO of the rate for which their eligible employees are entitled to receive JobKeeper payments. If an employer does not notify the ATO of the higher or lower rate of JobKeeper payment that applies in respect of their employee for a JobKeeper fortnight beginning on or after 28 September 2020, the employer is not eligible for JobKeeper payments in respect of this period until a valid notification (if any) is made.
Employers must also notify eligible employees in writing within seven days of advising the ATO of the JobKeeper payment rate that applies to the employee.
What does this mean for retailers?
Retailers who qualify for JobKeeper 2.0 must determine the number of hours that each eligible employee worked in the 28-day period ending at the end of the most recent pay cycle before either 1 March 2020 or 1 July 2020 (whichever is greater) and ascertain the appropriate JobKeeper payment rate for each extension period. Retailers must also ensure they notify the ATO and eligible employees as required.
It is important to note that the reduced JobKeeper payment rates coincide with upcoming increases to evening penalty rates for casual employees from 1 October 2020 and 1 March 2021 under the General Retail Industry Award, as well as the 1.75% increase to minimum rates on 1 February 2021. Retailers should take into account the interaction between the reduced JobKeeper payment rates and the increased rates under the Award when setting budgets and rosters.
3. JobKeeper flexibilities in the Fair Work Act
The JobKeeper flexibilities in the Fair Work Act have also been extended, subject to two broad categories of employers who can access different flexibilities after 28 September 2020:
• Qualifying employers: Employers who are eligible for JobKeeper payments after 28 September 2020 because they satisfy the new decline in turnover test will retain full access to all JobKeeper flexibilities (except for the provisions about taking annual leave).
• Legacy employers: Employers who qualified for JobKeeper 1.0 and no longer qualify for JobKeeper 2.0, but who are still experiencing a 10% decline in turnover (as determined by a financial service provider) have access to modified flexibility measures after 28 September 2020. Legacy employers can issue directions and make agreements with employees for whom they previously receiving JobKeeper payments.
Changes to duties and location of work
Both qualifying employers and legacy employers can continue to issue reasonable JobKeeper enabling directions in relation to duties and location of work.
A direction given to a category of employees may be unreasonable if it has an unfair effect on some of those employees compared to others who are also subject to those directions.
Changes to days and hours of work
Both qualifying employers and legacy employers can continue to reach agreements in relation to days and times of work.
However, there is an additional condition for legacy employers, who must ensure that such an agreement does not result in the employee working less than 2 consecutive hours in a day.
JobKeeper enabling stand down directions
Qualifying employers can also continue to issue JobKeeper enabling stand down directions (Stand Down Direction) to reduce employees’ ordinary hours, including to zero, provided the relevant criteria for issuing the direction are met.
Legacy employers can also issue Stand Down Directions, however, they can only reduce an employee’s ordinary hours under a Stand Down Direction to a minimum of 60% of their “ordinary hours of work” as assessed on 1 March 2020, provided the relevant criteria for issuing the direction are met. Also, the direction cannot result in the employee working less than 2 consecutive hours in a day.
The same limitations apply where a Stand Down Direction is unreasonable, as with JobKeeper enabling directions about duties and location.
For legacy employers, there is a 7-day notice/consultation period prior to issuing a JobKeeper enabling direction, whereas for qualifying employers the existing 3-day notice/consultation period continues to apply. Legacy employers also have expanded consultation requirements.
The flexibilities concerning “requesting” employees take annual leave have not been extended and will be repealed on 28 September 2020 for both qualifying and legacy employers.
Beyond this time, annual leave is to be taken in accordance with the applicable industrial instrument that governs annual leave including a modern award, enterprise agreement, or the Fair Work Act.
What does this mean for retailers?
Retailers who are “qualifying employers” will continue to receive JobKeeper payments for their eligible employees, and they will continue to have access to the JobKeeper flexibilities until 28 March 2021.
In most cases, any JobKeeper enabling direction or agreement that is in place on 27 September 2020 will automatically carry over from 28 September 2020 if the retailer remains eligible to give that direction or make that agreement in those terms.
Retailers who are “legacy employers” can continue to access some of the JobKeeper flexibility measures, albeit in a reduced capacity.
Retailers who are legacy employers need to give employees that are working under either a JobKeeper enabling direction or agreement written notice about whether their new direction or agreement will continue or end.
These retailers should contact their registered tax agent or BAS agent, or qualified accountant to ascertain whether they have experienced a 10% decline in turnover in order to obtain a certificate.
If any retailers want employees to take annual leave after 28 September 2020, they will need to rely on other mechanisms such as those in Awards.
Georgie Chapman is a workplace relations and safety lawyer at HR Legal, which works with many organisations in the retail industry. www.hrlegal.com.au