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When JobKeeper ends Employers will need to know their options

Malcolm Campbell, ||

It feels like it was only yesterday that JobKeeper was introduced. Participants in the JobKeeper Scheme have spent the last 12 months adjusting to the administrative processes involved, and now, on 28 March 2020, it is coming to an end.

So, what does this mean for employers?

No More JobKeeper Enabling Directions

From 29 March 2021, all remaining JobKeeper enabling directions will end. At that time, an employee’s terms and conditions will automatically revert to those terms and conditions in place before the enabling direction was implemented. Alternatively, the circumstances of the business may require that the employer make alternative working arrangements, or even consider redundancy.

Options After 28 March 2021

If the business is not in a position to support the return of an employee to their work as before the JobKeeper enabling direction, the employer has the following options:

  1. Rely on the ordinary method of varying hours or days or work and/or duties. That is, employers may obtain agreement with relevant employees about a proposed variation to their work and will need to adhere to award-provided consultation requirements in this respect. For example, this might be relied upon if the business has had full-time employees under a JobKeeper enabling direction to work part-time hours and wants the employees to continue to work part-time hours.
  2. Make temporary arrangements according to the additional flexibility terms introduced by Fair Work into some modern awards. For example, Schedule I of the Clerks – Private Sector Award 2020 provides for Award Flexibility during the COVID-19 Pandemic. It affords eligible employers flexibility with remote working arrangements and temporary reduction in ordinary hours. You will need to check your covering award to determine if it contains such terms.
  3. Consider the position/s that may no longer be required in the business. Redundancy may be the most suitable course of action for employers who, after considering the operational requirements of the business, have determined a ‘business case’ as to why certain roles are no longer required. Employers who opt for redundancy must follow the proper consultation process for award covered employees provided under the applicable Award and the Fair Work Act 2009 (Cth) (the Act).

In the event of redundancy at the end of JobKeeper, please note that notice (whether worked or paid in lieu) must be calculated at the employee’s full rate of pay for usual hours and days of work as if the JobKeeper direction hadn’t been given. Redundancy pay must be determined according to an applicable instrument. All other terms as to consultation provided by a covering instrument or the Act will apply.

Take Aways

On 28 March 2021, employers of employees on a JobKeeper enabling direction will need to determine an alternative arrangement for those employees, to take effect from 29 March 2021. Employers must consider the circumstances of the business and of all parties involved and ensure that they comply with all obligations under any instrument or the Act. Failure to comply with employer obligations may give rise to liability.

If you have any questions about how to manage the end of JobKeeper in your workplace and would like tailored advice, please do not hesitate to contact a member of Coleman Greig’s Employment Law Team, who would be happy to assist you today.

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