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11 May 2020

HHG Legal Group’s Employment Law team’s Murray Thornhill and Gemma Wheeler-Carver provide an update on what employers need to know about the JobKeeper subsidy.

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So now that the pressure is off slightly with the JobKeeper registration deadline having been extended until 31 May,  businesses will have the time to carefully consider not just the relevant financial, taxation and payroll issues, but also the employment law implications.


The 31 May deadline is for businesses who wish to apply for the first three fortnights of the JobKeeper subsidy, and businesses must ensure they have made the relevant payments to employees on or before 8 May for those fortnights.

On 9 April 2020, several changes were made to the Fair Work Act 2009 (Cth) to specifically provide more flexibility to employers and employees receiving JobKeeper. These businesses are both eligible for JobKeeper and a national system employer, and in relation to their employees, are both eligible for JobKeeper and a national system employee. These changes do not apply to State system employers and their employees (even if they are eligible for JobKeeper).

These changes are in addition to those changes made to many Awards and enterprise agreements in April, which also provide alternative flexibility options to employers and employees that are covered by those Awards at the beginning of April. See our previous articles on some of those changes HERE

The changes to the Act provide that an employer may direct an employee to:

  • work reduced hours overall, shorter shifts or fewer days, provided the employee’s hourly rate is not reduced;
  • undertake different duties (provided that they are licensed or qualified to do those duties and that if the duties attract a higher rate of pay, that the employee is paid that higher rate while undertaking those duties); and
  • work from an alternative location, provided that this does not require unreasonable travel.

In addition, an employer may request (and an employee may not unreasonably refuse) an employee to:

  • work alternative days (without a reduction in hours)
  • take annual leave, provided their annual leave balance remains above 2 weeks

The employer and employee may also agree that the employee takes that annual leave at half pay for twice as long.

Any directions or agreement reached in relation to these JobKeeper enabling directions automatically cease on 28 September 2020, and must be subject to 3 days notice, consultation and kept as a written record of the business.

Any disputes about these directions can (and as at 7 May approximately 200 of them have been!) taken to the Fair Work Commission to be resolved. We recommend that you seek legal advice in relation to a direction you have received from your employer or are planning to give to your employees if you have concerns that it may be contrary to the Fair Work Act.

Key dates for JobKeeper subsidies

  • 20 April: enrolments for JobKeeper payment were opened
  • 31 May: DEADLINE EXTENDED for enrolling your employees to claim April JobKeeper payments
  • 4 May: from this date, you should identify your eligible employees. You have until the end of May to enrol and identify your employees.
  • Monthly: reconfirm your employees’ eligibility and update if changes are made


HHG Legal Group can assist

It is important for businesses to get early and specific legal and financial advice on these matters before enrolling in the scheme to avoid running into financial or legal issues at a later stage. HHG Legal Group and our taxation and accounting partners can provide speedy advice on these issues and more

For over 100 years HHG Legal Group has been proudly serving Western Australian families, business and individuals. Never before has the State seen such a crippling time for many small businesses and we are committed to supporting the communities in which we operate. If you require advice relating to your obligations as a small business employer in the time of COVID-19, or have any other employment law queries, we are offering unprecedented initial consultation fees to assist in these challenging times.

Make an enquiry online or book a telephone, video or safely distanced meeting with an employment lawyer on +61 8 9322 1966


*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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