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  • 2020 has been a year of rapid and reactive change for Australian employment law. Temporary measures have been enacted, and in many cases revised and extended, to combat the immediate challenges posed by the COVID-19 crisis.
  • There is now a growing appetite for longer term reform, as reflected in Fair Work Commission President Iain Ross’s statement on working from home proposals and the Federal Government’s industrial relations working groups.
  • Significant changes to Australian employment law are likely to follow in 2021, with all eyes on the Federal Government’s upcoming omnibus industrial relations bill.

Employment law is dynamic, often changing with the political winds. In 2020, however, the winds of change were swift, and driven by the COVID-19 pandemic. In a two-part series in the May and June editions of the Law Society Journal, we examined the Fair Work Commission and Federal Government’s initial responses to the crisis. Now, as a year like no other draws to a close, we summarise the most recent, and active, changes before concluding with an eye on what might come next.

JobKeeper 2.0 & temporary changes to the Fair Work Act 2009 (Cth)

On 28 September 2020, JobKeeper 2.0 commenced, with an extension to the JobKeeper Payment scheme until 28 March 2021. One of the most notable changes under JobKeeper 2.0 is the introduction of ’legacy employers’. The relevant provisions were inserted into the Fair Work Act 2009 (Cth) (‘FW Act’) by the Coronavirus Economic Response Package (Jobkeeper Payments) Amendment Act 2020 (Cth).

Legacy employers are employers who: (a) previously qualified for JobKeeper payments but no longer do; and (b) meet the 10 per cent decline in turnover test.

Legacy employers are entitled to: (a) issue stand down directions; (b) make agreements with employees; and (c) make directions to change duties or work locations.

However, there are some changes and limitations to the types of directions and agreements that can be made. Importantly, legacy employers cannot stand down an employee and reduce their hours to zero. Legacy employers also need to reissue or make new directions or agreements that were previously issued or made before the commencement of JobKeeper 2.0.

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