State system COVID-19 JobKeeper provisions

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Temporary state system JobKeeper provisions have been introduced for private sector state system employers and employees who are participating in the Commonwealth JobKeeper scheme.

These provisions were implemented by the COVID-19 JobKeeper General Order issued by the Western Australian Industrial Relations Commission on 15 May 2020. The provisions are effective from 15 May 2020 and apply until 28 September 2020, unless extended.

The state system JobKeeper provisions only apply to employers who have qualified for the JobKeeper scheme and their eligible employees, and allow employers to give certain directions to employees and make agreements with employees to change their days and times of work. Employers must comply with a number of specific requirements. 

This information is a summary of the COVID-19 JobKeeper General Order and does not include all obligations required by the General Order. It is important that you also refer to the full COVID-19 JobKeeper General Order that is available on the WA Industrial Relations Commission website.

Information on the Commonwealth JobKeeper scheme is available from the Australian Taxation Office.

Employer payment obligations

The state system JobKeeper provisions only apply to employers who have qualified for the JobKeeper scheme and their eligible employees.   

If a JobKeeper payment is payable to an employer for an employee for a fortnight, the employer must ensure that the total amount payable to the employee in respect of the fortnight is not less than the higher of the following:

  • the amount of JobKeeper payment payable to the employer for the employee for the fortnight; or
  • the amounts payable to the employee in relation to the performance of work during the fortnight (including leave payments, penalty rates, loadings and allowances).

If a JobKeeper enabling direction about stand down, including reductions to hours of work given by an employer applies to an employee, the employer must ensure that the employee’s base rate of pay (worked out on an hourly basis) is not less than the base rate of pay (worked out on an hourly basis) that would have been applicable to the employee if the direction had not been given to the employee.

If a JobKeeper enabling direction about changes to duties of work given by an employer applies to an employee, the employer must ensure that the employee’s base rate of pay (worked out on an hourly basis) is not less than the greater of the following:

  • the base rate of pay (worked out on an hourly basis) that would have been applicable to the employee if the direction had not been given to the employee; or
  • the base rate of pay (worked out on an hourly basis) that is applicable to the duties the employee is performing.

Base rate of pay means the amount payable to an employee for their ordinary hours of work, but not including any of the following:

  • incentive-based payments and bonuses;
  • loadings;
  • monetary allowances;
  • overtime or penalty rates; and
  • any other separately identifiable amounts.

JobKeeper enabling directions

Under the state system JobKeeper provisions an employer is able to give a ‘JobKeeper enabling direction’ to an employee to temporarily:

  • stand down an employee (including by reducing their hours or days of work);
  • change an employee’s usual duties; and
  • change an employee’s location of work.

For more information about JobKeeper enabling directions, including when and how JobKeeper enabling directions may be given, rules and consultation requirements, and the effect of JobKeeper enabling directions on service and leave accrual, please visit the JobKeeper enabling directions page.

Requests for an employee to change days and times of work

The state system JobKeeper provisions allow a qualifying employer to request to make an agreement with an eligible employee to perform duties on different days or at different times, compared with the employee’s ordinary days or times of work.

An employer may request to make an agreement with an employee to perform duties during a period:

  • on different days; or
  • at different times;

compared with the employee’s ordinary days or times of work.

When an employer gives the employee a request to make an agreement, the employee:

  • must consider the request; and
  • must not unreasonably refuse the request. 

The agreement is subject to:

  • when the agreement was made, the employer qualified for the JobKeeper scheme;
  • the performance of the employee’s duties on those days or at those times is:
    • safe, having regard to (without limitation) the nature and spread of COVID-19; and
    • reasonably within the scope of the employer’s business operations;
  • the agreement does not have the effect of reducing the employee’s number of hours of work (compared with the employee’s ordinary hours of work);
  • the agreement is in writing; and
  • the employer becomes entitled to one or more JobKeeper payments for the employee:
    • for a period that consists of or includes the relevant period; or
    • for periods that, when considered together, consist of or include the relevant period.

Disputes

Where there is a question, dispute or difficulty arising under the JobKeeper General Order, the employer and the employee (or their representatives) must confer among themselves and make reasonable attempts to resolve the matter.

If the employer and employee are unable to resolve the matter within 24 hours of the question, dispute or difficulty being raised, the employer or an organisation of which the employee is a member or is eligible to become a member, may apply to the Western Australian Industrial Relations Commission for conciliation and if required, arbitration.

If the employer and employee are unable to resolve the matter within 48 hours of the question, dispute or difficulty being raised and the matter has not been referred to the Western Australian Industrial Relations Commission:

  • the employee may:
  • request mediation under the Employment Dispute Resolution Act 2008 (WA), by lodging Form 1 – Request for Mediation with the Western Australian Industrial Relations Commission.  It should be noted that for mediation to occur under this arrangement, the employer must consent to the mediation.
  • notify the Registrar of the Western Australian Industrial Relations Commission that the employer has been or is, by some act, omission or circumstance, taking industrial action (as defined in s7(1) of the Act) against them for the purpose of compelling them to accept terms or conditions of employment contrary to the terms of this General Order, and ask the Registrar to refer the notification to the Commission.  The Commission will then consider whether to convene a conciliation conference.
  • make an application to the Industrial Magistrate’s Court for enforcement of the General Order, by lodging Form 1.1, 1.2 and 1.3; and
  • the employer or organisation, including registered industrial organisations such as a union, may apply to the Commission for conciliation and, if necessary, arbitration, under s 44 of the Industrial Relations Act 1979 (WA).

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