JobKeeper is a government stimulus package aimed at supporting businesses to keep employees engaged regardless if they have work to be performed or not. Detailed information about the scheme and eligibility criteria can be obtained here.
The JobKeeper wage subsidy has helped many businesses keep their workforce employed during these difficult times, so they can bounce back when business starts to revive.
This FAQ guide is designed to answer some common questions employers are facing, while navigating through the JobKeeper Payment Scheme, and its extension. The advice provided here is generic and while it will apply to most employers, there are many other provisions in the Fair Work Act 2009 which are more suitable for certain industries and circumstances. We are committed to helping employers identify and implement the right options, so if you have a specific question or situation you would like to discuss, call your local HR Dept for more information.
The advice on this page was last updated on Friday 4th September 2020.
Q. Can I ask employees to work while they receive JobKeeper payments?
Yes you can. If you can provide useful work to employees during this period, you can ask your employees to carry out the work as normal, providing it is reasonable and safe for them to do so. Temporary changes in work arrangements can also be made, by undertaking genuine consultation with employees and following the requirements in the JobKeeper Provisions in the Fair Work Act 2009.
Q. I have enough work for some employees, but not for all. How do I manage this?
Employees who are working less than their contractual hours may, depending on employer eligibility, be stood down either partially or fully through the Jobkeeper scheme stand down provisions or via other lawful arrangements.
You can also consider other options for keeping employees engaged, such as:
– Building new skills and competencies
– Online training, including compliance training
– Non routine tasks (documentation, updating policies, procedures and tasks that take a back seat during normal operations)
– Assisting other employees and/or departments that require temporary assistance.
Recent changes to many Modern Awards allow greater flexibility for employers to direct employees to perform work in unique ways, and align with a business’ interim needs. Be sure to remain up to date with the end dates for these temporary Award changes, which vary across the range of Awards.
Q. What if an employee on JobKeeper payments refuses to perform work but still wants to be paid?
An employee cannot unreasonably refuse to perform work assigned to them. To determine whether their denial is unreasonable, ask them the reasons for refusal first!
The next steps would depend on the reasons provided by the employee and whether they are permanent or casual.
If their reasons ARE reasonable :
– Try to resolve their concerns.
– Consider options such as alternate duties/ alternate location / reduced hours / paid annual leave/ negotiating temporary work arrangements to suit both parties.
– Document the arrangement made and continue paying Jobkeeper Payments.
If their reasons are NOT reasonable:
– the employee may be in breach of their obligations under the Fair Work Act. Follow your usual procedure for refusal to carry out reasonable direction.
Q. Some of my casual employees earn less than the JobKeeper scheme entitlement. Can I ask them to work longer hours up to the value of the JobKeeper scheme?
A casual employee should not be rostered for extra hours unless there is a genuine requirement for them to work longer hours and unless mutually agreed. Casual employees should be rostered no differently from their usual pattern of work, irrespective of the JobKeeper scheme entitlement.
Q. My business needs have changed due to COVID-19. Can I alter the duties of existing employees receiving JobKeeper payments?
If you are an eligible employer, you can direct an employee, for the duration of the time they are receiving the JobKeeper payment, to perform different duties if:
– the duties are safe
– the employee has the skill, competencies and applicable licenses to perform these duties;
– the duties are reasonable and within the scope of the business operations.
An employee is not required to comply with a direction to change of duties of work if it is unreasonable.You may also be able to direct employees to perform different duties if you are a ‘legacy employer’, providing you can satisfy certain criteria and you adhere to the enhanced notice and consultation requirements.
Q. How do I decide who to keep at work if I have enough for one person in a team of five?
Consider a combination of operational needs and employee motivation when making your decision. You can shortlist suitable team members by matching your requirements with their ability to carry out the tasks.
You can also consider job-share arrangements between team members so that employees are treated as equally as possible.
Q. Are employees on Parental Leave entitled to JobKeeper payments?
Employees on Parental leave are entitled, provided they are not currently receiving Parental Leave Pay from Services Australia.
Q. I have some casual employees working in my business. How do I determine which casuals are eligible for JobKeeper payments?
The JobKeeper scheme refers to casual employees being eligible where they have been employed on a regular and systematic basis during the 12 month period ending 1 July 2020 and they do not hold permanent employment with another employer. The definition of regular and systematic is the same as the Fair Work Act 2009 whereby the employee has a recurring work schedule or a reasonable expectation of ongoing work.
Q. I have some work available for my employees, but can’t afford to pay them their usual wages, which are higher than the JobKeeper allowance. What are my options?
If you meet the criteria, you may be able to enforce a temporary and partial stand down.
If you do not meet the criteria, options for other lawful arrangements such as reduction in hours or days of work, or negotiating temporary unpaid leave may be available. Lawful application of such options can enable you to pay your employees up to the amount received from JobKeeper payments. Written arrangements must be made with your employees, to ensure you comply with the relevant provisions of the Fair Work Act.
To find out what options apply in your situation, give us a call.
Q. We have made redundancies already. Can we reinstate the employee and bring them back to take advantage of the scheme?
Yes you can. Reinstating employees previously made redundant requires careful consideration for
– recognition of previous service (particularly if long service leave has been paid out).
– Unfair dismissal claims
– Taxation law
We suggest discussing your situation with us to ensure reinstatement is done correctly and doesn’t create any future issues for your business.
Q. Do employees have to opt-in to the scheme?
There is no formal requirement for employees to opt-in to the scheme. However, you should notify your employees of your intention to participate in the scheme and seek their consent by completing the Jobkeeper employee nomination notice.
This will also help to avoid potential double payments in case employees have more than one employer. This form does not need to be submitted to the ATO, but should be kept as a record for 5 years.
Q. Can I direct my employees to take annual leave while they receive JobKeeper payments?
Employers are not permitted to direct an eligible employee to take annual leave. However, eligible employers may request employees to take annual leave, as long as the employee can still maintain a balance of paid annual leave of at least 2 weeks. Employers will need to follow a genuine consultation process.
An eligible employer & employee can also agree in writing that the employee take annual leave at half the employee’s ordinary rate of pay, for a period in which the employer is receiving payments for the employee. These provisions only apply until 28 September 2020 and after that date, the normal rules for the taking of annual leave apply, in accordance with the relevant Award or agreement.
Q. I employ students and temporary visa holders in my business who are not eligible for JobKeeper payments. What should l do?
The Department of Home Affairs has laid out the options for all Australian Visa holders on their website.
Even if your employees are not eligible for JobKeeper payments, you can still keep them employed based on their usual work arrangement. Some visa classes have been provided temporary relaxation of working rules to allow them to continue being employed.
If your employees are not eligible for JobKeeper payments and you can no longer support their employment, you may be required to review your employment relationship. Employers sponsoring overseas workers may be required to report changes in their circumstances to the Department.
Q. Can I pay my employees after I receive the payments?
No- the JobKeeper payment will be made monthly in arrears to the employer and the employer will need to evidence that they have paid eligible employees during the fortnightly payment period.
Q. Do I have to apply for JK payment for all of my eligible employees or can I pick and choose?
The JobKeeper nomination scheme works on a ‘one-in all-in’ principle. If an employer decides to participate in the scheme, they have to nominate ALL eligible employees. An employer cannot choose some employees and not others based on any criteria other than that prescribed in the scheme.
Q. Will my business be automatically eligible for the JobKeeper extension periods if I have already satisfied the eligibility criteria previously?
Businesses will need to reassess their eligibility by meeting further decline in turnover tests for the two extension periods as well as other existing eligibility requirements. You will not be able to automatically roll over your eligibility.
Q. What is the payment rate for the JobKeeper extension period?
The JobKeeper payment will remain the same at $1,500 per fortnight until 27 September 2020. It will then step down and be paid at two different rates as follows:
For the period 28 September 2020 to 3 January 2021, the JobKeeper payment will be $1,200 per fortnight for employees who worked 20 hours or more per week on average, and $750 per fortnight for employees who worked less than 20 hours per week on average in the relevant reference period.
For the period 4 January 2021 to 28 March 2021, the JobKeeper payment will be $1,000 per fortnight for eligible employees who worked for 20 hours or more per week on average, and $650 per fortnight for employees who worked for less than 20 hours per week on average in the relevant reference period.
Q. What is a ‘legacy employer’?
The extended provisions of the JobKeeper scheme and the Fair Work Act include a new category of employer from 28th September 2020, called ‘Legacy Employers’. Legacy employers include those employers who no longer qualify for the JobKeeper Scheme from 28th September 2020, but who have previously been participating, making payments to eligible employees, and using JobKeeper enabling provisions.
To qualify as a legacy employer, the business will have to demonstrate a decline in turnover of at least 10% for the previous quarter, by obtaining a certificate from an eligible financial service provider (or for small businesses a statutory declaration).
Q. Do I need to review any JobKeeper enabling directions I have given my employees after 28th September 2020 or do they carry over?
If you are an ‘eligble employer’ and you have previously participated in the scheme and made payments to eligible employees, any JobKeeper enabling directions or agreements that are already in place (except for annual leave agreements) on the 27th September 2020 will continue to apply where you continue to qualify for the scheme, and until they are either cancelled, withdrawn, replaced, or after 29th March 2021 – whichever comes first.
If you are a ‘legacy employer’ – that is, you no longer qualify, but you did participate previously, any JobKeeper enabling directions or agreements you have previously issued must end on 27th September 2020, and you will need to re-issue new directions and agreements, adhering to the relevant enhanced notice and consultation periods, to become effective from 28th September or later. There are certain requirements for written notification to ensure these directions are compliant and we recommend you get in touch with us to ensure you manage this correctly.
Do you run a business and have a HR question about coronavirus?
The HR Dept provide outsourced HR support to employers. If you are an employee we would suggest that you contact the Fair Work Ombudsman.
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