The JobKeeper Payment Scheme – What do I need to know?


The JobKeeper Payment Scheme – What do I need to know?

What payments are available to employers under the JobKeeper scheme?
When is an employer eligible?
When is an employee eligible?
How do Employers nominate to participate?
“One In All In” – An employer cannot pick and choose employees
What if an employee has multiple employers?
What directions can an employer give an employee?
Are there any conditions on directions?
How do service and entitlements accrue while an employee is on JobKeeper?
What are the consultation requirements?
When does a JobKeeper enabling stand down direction not apply?
What about the requests under JobKeeper?
Can an employer stand down an employee if not eligible for JobKeeper?

What payments are available to employers under the JobKeeper scheme?

Payments under the JobKeeper payment scheme are available in fortnightly periods between 30 March 2020 and 27 September 2020. A business that is entitled to a JobKeeper payment will be reimbursed a fixed amount of $1,500 per fortnight per eligible employee. The business must pay the employee before it is entitled to the JobKeeper payment.

When is an employer eligible?

Employers are eligible for the JobKeeper payment if all of the following apply:

  • On 1 March 2020, they carried on a business as a self-employed person, sole trader, company, partnership or trust. Not-for profits and some charities are eligible.
  • Their eligible employees are employed by the business for the fortnights claimed for (including those who are stood down or re-hired).
  • The business has faced either a:
    • 30% fall in turnover (for an aggregated turnover of $1 billion or less)
    • 50% fall in turnover (for an aggregated turnover of more than $1 billion), or
    • 15% fall in turnover (for ACNC-registered charities other than universities and schools).

Some employers are not entitled to receive JobKeeper payments:

  • banks (or entities within consolidated groups of banks) liable to pay a Major Banks Levy;
  • Australian government agencies;
  • local governing bodies;
  • companies where a liquidator has been appointed; and
  • individuals where a trustee in bankruptcy has been appointed.

An alternate decline in turnover test applies for special purpose service entities that provide employee labour to group members and have not met the basic test for decline in turnover.

When is an employee eligible?

An employee will be eligible if:

  • they are a full-time, part-time or fixed term employee;
  • they are a long-term casual. This means they were employed regularly for at least 12 months, provided that they are not also employed by another employer on a permanent basis;
  • on 1 March 2020 they were 18 years of age or older (if they were 16 or 17 they can also qualify for fortnights before 11 May 2020, and continue to qualify after that if they are independent or not undertaking full time study);
  • they were an Australian resident as at 1 March 2020;
  • they are an Australian tax resident who is a Special Category (Subclass 444) Visa Holder;
  • they agree to be nominated by the employer;
  • they were not in receipt of any of these payments during the JobKeeper fortnight:
    • government parental leave or Dad and partner pay;
    • a payment in accordance with Australian worker compensation law for an individual’s total incapacity for work.

An employer cannot claim JobKeeper for any employees who:

  • were first employed after 1 March 2020;
  • left employment before 1 March 2020;
  • have been, or have agreed to be, nominated by another employer.

How do Employers nominate to participate?

The Australia Tax Office (ATO) is administering the JobKeeper scheme.  Eligible employers can enrol with the ATO by 31 May 2020.

They must provide the employees with an Employee nomination notice within 7 days of enrolling.

 “One In All In” – An employer cannot pick and choose employees

If an employer decides to participate in the JobKeeper scheme, they must nominate all of their eligible employees. They cannot choose to nominate only some employees. However, individual eligible employees can choose not to participate.

What if an employee has multiple employers?

If an employee has multiple employers, they can choose which employer they want to nominate through. However, if the employee is a long-term casual and has other permanent employment, they must choose the permanent employer and cannot nominate the employer where they work casually. They cannot be nominated for JobKeeper by more than one employer.

What directions can an employer give an employee?

An employer who is entitled to JobKeeper payments for an employee can give the employee three new kinds of directions:

JobKeeper enabling stand down directions: These are a flexible form of stand down. The employer can direct an employee not to work on a day they would usually work, or work for less time on a day, or work a reduced number of hours overall (which can be nil).

The stand down direction can only be given if the employee cannot be usefully employed for the employee’s normal days or hours because of changes attributable to the COVID-19 pandemic or government initiatives to slow its transmission.

Directions to perform other duties:  Employers can direct employees to perform other duties, provided that:

  • they are within the employee’s skill and competency;
  • are reasonable; and
  • the employee has any relevant licence or qualification.

Directions to work at a different place: An employer may direct an employee to work at a different place, including the employee’s home, provided that it is ‘suitable for the employee’s duties’. It must not require the employee to travel an unreasonable distance.

Are there any conditions on directions?

JobKeeper enabling directions:

  • must be in writing;
  • must be reasonable;
  • are subject to provision of three-days’ notice and the requirement to consult with employee and any representative about it.

Leave continues to accrue as if the JobKeeper enabling direction had not been given.

JobKeeper enabling directions apply even if they are not consistent with relevant provisions of the Fair Work Act, modern awards, enterprise agreements or contracts of employment.

How do service and entitlements accrue while an employee is on JobKeeper?

Leave continues to accrue as if the JobKeeper enabling direction had not been given.

The period that an employee is subject to a JobKeeper enabling direction counts as service for the purposes of the Fair Work Act, e.g. accrual of leave and calculation of length of service. This means that while a JobKeeper enabling direction applies to an employee:

  • the employee accrues annual leave entitlements; and
  • redundancy pay and payment in lieu of notice of termination are calculated,

as if the direction had not been given.

What are the consultation requirements?

A JobKeeper enabling direction does not apply to an employee unless:

  • the employer gave the employee at least three days’ written notice of the employer’s intention to give the direction. A lesser period of notice may apply if the employee genuinely agrees to a lesser notice period, and
  • before giving the direction, the employer consulted the employee, or a representative of the employee, about the direction.

An employer must keep a written record of a consultation with an employee or their representative.

When does a JobKeeper enabling stand down direction not apply?

A JobKeeper enabling stand down direction does not apply during a period when the employee is taking paid or unpaid leave authorised by the employer, or the employee is otherwise authorised to be absent from their employment.

What about JobKeeper requests?

Employers entitled to JobKeeper payments can give employees a request, which the employee must then consider and not unreasonably refuse.

  • Request to work different times and days: An employer may request an employee to work on days or at times that are different from the employee’s ordinary days or times, but which do not reduce the employee’s number of hours of work.
  • Request that an employee take paid annual leave: An employer may request an employee to take paid annual leave, provided the request does not result in the employee having a balance of fewer than two weeks. They may agree to annual leave at half pay.

If an employer has given an employee a JobKeeper stand down enabling direction, the employee may give the employer a request to engage in secondary employment or training and professional development. The employer must consider and must not unreasonably refuse the request.

Can an employer stand down an employee if not eligible for JobKeeper?

A JobKeeper enabling stand down direction is different to a direction to employees to stand down that previously were in place.  An employer continues to be able to stand down an employee during a period in which the employee cannot usefully be employed because of:

  • industrial action (other than industrial action organised or engaged in by the employer);
  • a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown; or
  • a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

Information current as of 22 May 2020.

If you have any other questions, let us know and we’ll include popular issues in future FAQs. Don’t hesitate to contact us if you require more information or have specific concerns relating to the JobKeeper scheme or other workplace relations matters.

 

Our Corporate and Commercial Lawyers