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As part of its $130 billion support package to combat the economic effects of the COVID pandemic, the government has secured passage of changes the Fair Work Act 2009 (“FW Act”) that increase workforce flexibility for employers who qualify for the JobKeeper scheme.  EMA Consulting will run a webinar to provide further details on Wednesday 15 April at 10 am. 
The JobKeeper scheme is available to employers who meet eligibility criteria.  The scheme is a wage subsidy scheme designed to assist in retaining employees.  Eligible businesses are those (including not for profits) with either: a turnover of less than $1B and estimate their turnover has or will drop by 30% or more because of the effects of the pandemic; or, a business with a turnover of $1B or more and estimate their turnover has or will drop by 50% or more because of the effects of the pandemic. For registered charities and not-for-profits, the relevant turnover reduction is 15%.
EMA Consulting does not provide advice about that scheme as such, however there are industrial relations implications for eligible employers.

FW Act changes – Summary

A new section of the FW Act has been added – Part 6-4C — Coronavirus economic response.
Subject to rules and safeguards, for a national system employer who qualifies for the JobKeeper scheme these provisions facilitate such things as: Stand down or partial stand down for periods of time. Directing employees to perform other duties, or work at other locations. Making agreement with employees to work on other days or at other times, which they cannot unreasonably refuse. Making agreements with employees to take excess annual leave, which they cannot unreasonably refuse, or taking leave for longer periods at half pay. These flexibilities may occur even if contrary to contracts, awards or enterprise agreements.

They are available only until 27 September 2020 after which they are repealed.


The changes come with complex safeguards including: a minimum payment guarantee, of the greater of the employee’s ordinary pay (subject to hours worked) or $1500 per fortnight; no reduction in the employee’s hourly rate of pay; strict requirement for evidence that the changes are necessary to preserve employment for some or all employees; strict consultation obligations for directions to employees, including keeping a written record of the consultation and the directions; ability for the Fair Work Commission to settle disputes about their operation and issue orders; and pecuniary penalties for misuse of the provisions and non-compliance with the rules of operation.  Although arrangements may contradict contracts, awards or enterprise agreements, the provisions will always be subject to other laws such as discrimination, general protections, WHS and workers compensation laws.


If you would like to attend the webinar JobKeeper Legislative Changes – The issues that affect your Business, details of content and how to book can be found here

Require further information/assistance? If you require further information or advice, please contact one of our consultants.

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