JobKeeper Payment Scheme Q&A

The ‘JobKeeper payment’ gives eligible businesses $1500 per fortnight (before tax), per employee for six months to help pay the wages of their employees. 

Payments are expected to start from 1 May, 2020 – but will be backdated to the 30 March, 2020.

You can only access this payment if you AND your employer meet the eligibility criteria. 

Additionally, your employer must register their interest with the Australian Tax Office here.

EMPLOYEES

As an employee you will eligible for this payment (provided your employer has registered) if:

• You are currently employed. This includes employees who have been stood down and recently re-hired;
• You were employed by your employer as at March 1, 2020.
• You are a permanent employee (either full-time or part-time) or a casual worker who has been employed on a regular basis for more than a year as at March 1, 2020.
• You are at least 16 years old
• You are an Australian Citizen; or
• You hold a permanent visa; or
• You hold a ‘protected’ Special Category visa (this applies to New Zealand citizens who were in Australia on 26 February 2001)
• You hold an ‘unprotected’ Special Category visa (this applies to New Zealand citizen who have been residing in Australia continuously for more than 10 years; or
• You hold a Special Category (sub-class 444) visa (again this is applicable to New Zealand citizens in Australia)
• Current information suggests that workers on temporary working visas, including international students, are not eligible for this payment.
• You are not in receipt of a JobKeeper payment from another employer.

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What if I have already been made redundant, or if I have been dismissed by my employer?

If you are an employee who has already been made redundant or if you have been dismissed you will not be eligible for the JobKeeper payment.  You will need to apply for the JobSeeker payment instead.  You can do that here.

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What if I get paid less than $1500 per fortnight?

Regardless of how much you earn, if you and your employer are eligible for this scheme, all eligible workers will receive $1500 per fortnight, before tax.  This amount purportedly represents 70% of the median wage. 

If you receive more than $1500 per fortnight, the payment acts as a subsidy and your employer would be expected to pay you the difference.

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Can I access this payment if my hours have been cut down but I am still working?

Yes.  If your hours have been reduced by your employer, and provided your employer registers and meets the eligibility criteria, you will be eligible to receive this payment.

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How will the payment be made?

From the information at hand, an employer will be required to provide the Australian Tax Office with comprehensive records of their staff and the employees who will receive it.  The subsidy will be paid to the employer who will then pay it on to the employee via the usual method that wages in the business are paid.

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Will superannuation be payable on the payment?

This will depend on each individual employment situation. 

For example, if an employee receives more than $1500 per fortnight, the payment will act as a subsidy for the employer and the employer will be expected to continue to pay super contributions on the amount of ordinary wages the employee receives.

If an employee earns less than $1500, the employer will only be expected to pay super contributions on their customary amount of pay but can choose to pay super contributions on the full $1500 if they choose.

If an employee has been stood down, or is on leave without pay, then they should receive the full $1500 per fortnight (before tax) and there are no superannuation contributions payable on this amount.

EMPLOYERS

As an employer you will be eligible to register for access to this scheme if:

• Your business has an annual turnover of less than 1 billion dollars and has experienced a 30% drop in revenue since March 1, 2020;
• Your business has an annual turnover of more than 1 billion dollars and has experienced a 50% drop in revenue since 1 March, 2020.

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Businesses that are subject to a major bank levy will not be eligible for the scheme.

Self-employed workers will also need to register with the ATO in order to access the JobKeeper scheme.

Remember, if eligible, an employer must sign up for this scheme in order to be considered.

A fact sheet for employers is available from the Federal Treasury site here.

After your employer registers their interest for JobKeeper payments, but before it can start to receive payments from the Australian Government, it must do the following:

Notify all eligible employees that it intends to participate in the JobKeeper scheme; and

Send the JobKeeper employee nomination notice to nominated employees to complete and return to the employer. Both eligible employers and employees need to complete this form.

If you are an eligible employee whose work hours have been reduced since 1 March 2020, your employer should continue to pay you a minimum of $1500 per fortnight (before tax). The ATO will start reimbursing employers monthly in arrears from the start of May 2020.

In theory, no.  If your employer has enrolled or is intending to enroll in the JobKeeper scheme, they must notify all eligible employees of their intention to do so and they must ask all eligible employees for their permission.  This is known as the ‘one in, all in’ promise.

To date, however, this promise has not been reflected in the legislation.

If you believe that your employer is not adhering to the ‘one in, all in’ promise, please contact JobWatch for assistance.

Your employer may lawfully direct you not to attend work at all or to reduce your hours of work while the stand down is in effect, provided certain conditions are met, including the following:

• Your employer qualified for the JobKeeper scheme when the direction was given to you;
• You cannot be usefully employed for your usual hours or days of work because of changes in your employer’s business attributable to the COVID-19 pandemic, or government initiatives to slow the spread of the virus (e.g. close down of non-essential services etc);
• The implementation of the direction is safe, having regard to the nature and spread of the coronavirus; and
• Your employer becomes entitled to one or more JobKeeper payments for you during a period that includes the stand down.

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This is known as a JobKeeper enabling stand down direction.

If the direction is ‘unreasonable in all of the circumstances’ you do not need to comply with it. Contact JobWatch if you think the direction is unreasonable.   

Similarly, if your employer’s business continues to operate and you believe that you could be usefully employed in the business for your usual days and times of work, a direction to stand you down or reduce your work hours may not be lawful. Contact JobWatch if you think the direction is unlawful.

Your employer must give you written notice of their intention to give this direction. The period of notice must be at least 3 days before they issue the direction, but it can be a lesser period if you genuinely agree to it.

Your employer must also consult with you (or your representative) about the direction before they give the direction.

Your employer must reasonably believe that the direction is necessary to continue the employment of one or more employees.

Your employer’s stand down direction lasts until:

1. it is withdrawn or revoked by your employer;
2. it is replaced by another JobKeeper enabling direction from your employer; or
3. until the start of 28 September 2020.

No, your employer cannot reduce your hourly rate of pay without your consent.  Your employer is bound by the hourly rate of pay guarantee.  This means that if your employer has lawfully directed you to reduce your hours of work under a JobKeeper enabling stand down direction, they must ensure that the base rate of pay for all work performed by you is not less than your original rate of pay. If your employer has reduced your pay, contact JobWatch.

If your employer qualifies for the JobKeeper scheme and is entitled to one or more JobKeeper payments for you, they may request that you take your paid annual leave provided that you are not left with an annual leave balance of less than 2 weeks. You must consider this request and you must not unreasonably refuse the request.

You and your employer may also agree in writing that you will take twice as much annual leave at half your usual rate of pay for the relevant period. If you agree to take double the amount of annual leave at half your usual rate of pay, all your leave entitlements must continue to accrue as if the agreement had not been made.  In other words, you must continue to accrue all leave entitlements at your ordinary rate.

If you are an eligible employee for the JobKeeper payment and your employer is claiming the JobKeeper payment to subsidise your wages, you are entitled to receive a minimum of $1500 per fortnight (before tax) from your employer, even if you have been stood down and you are not working any hours at all. Contact JobWatch if you are not receiving at least $1500 per fortnight (gross).

If your employer has issued a JobKeeper enabling stand down direction, all your entitlements continue to accrue for the period of the stand down, as if the direction had not been given.

If your role is made redundant during the period of a JobKeeper enabling stand down direction, you must receive payable redundancy and notice of termination in lieu as if the direction had not been given. This is also true if your employer has reduced your hours subject to a JobKeeper enabling stand down direction.

Your employer may lawfully direct you to perform duties that are outside your ordinary job description, provided certain conditions are met, including the following:

• The duties are within your skill and competency;
• Your employer qualified for the JobKeeper scheme when the direction was given to you;
• The implementation of the direction is safe, having regard to the nature and spread of the coronavirus; and
• Your employer becomes entitled to one or more JobKeeper payments for you during a period that includes the stand down.

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This is known as a JobKeeper enabling direction.

If your employer requires you to perform duties that fall within a lower classification than those your ordinarily perform, your employer must continue to pay you your usual rate of pay.  This is called the ‘hourly rate of pay guarantee’.

However, if your employer has directed you to perform duties that are higher than your usual classification, then they must pay you at the equivalent higher rate.

If the direction is ‘unreasonable in all of the circumstances’ you do not need to comply with it. Contact JobWatch if you think the direction is unreasonable.   

Your employer must give you written notice of their intention to give this direction. The period of notice must be at least 3 days before they issue the direction, but it can be a lesser period if you genuinely agree to it.

Your employer must also consult with you (or your representative) about the direction before they give the direction.

Your employer must reasonably believe that the direction is necessary to continue the employment of one or more employees.

Your employer’s direction to perform different duties lasts until:

1. it is withdrawn or revoked by your employer;
2. it is replaced by another JobKeeper enabling direction from your employer; or
3. until the start of 28 September 2020. 
   

Yes.  If your employer intends to give you a JobKeeper enabling direction (in relation to a stand down, duties, location, days of work or times of work) they are required to give you at least three days’ notice in writing of their intention to do so. However, you may agree to a lesser period of notice, provided you genuinely agree to it.

Your employer must also consult with you (or your representative) about the direction before they give you the direction. 

There must be a written record of this consultation. 

Yes.  Any period during which an employee is subject to a JobKeeper enabling direction is counted as continuous service.

Yes, you are required to comply with a JobKeeper enabling direction, provided all the relevant conditions outlined above have been satisfied and the rules are followed about the direction being reasonable, notification and consultation.

The Fair Work Commission (FWC) has the power to deal with any dispute about JobKeeper enabling directions. The FWC may deal with a dispute by arbitration, by mediation or conciliation, or by making a recommendation or expressing an opinion.

The FWC has recently issued an application form specifically tailored to addressing a dispute about a JobKeeper enabling direction. You can find this form at the Fair Work Commission website here. Contact JobWatch or the FWC for more information. 

The JobKeeper payment of $1,500 per fortnight is a gross amount, before tax.

No, because in order to be eligible for the JobKeeper payments you needed to be employed by the eligible employer as at 1 March 2020.

If the new duties attract a lower hourly rate of pay, the employee must continue to be paid their old base rate of pay (on an hourly basis). If, on the other hand, the new duties attract a higher rate of pay, the employer must pay the higher base rate of pay (on an hourly basis). This is called the hourly rate of pay guarantee.

Under the JobKeeper changes to the Fair Work Act, an eligible employer may request (not direct) an employee who is entitled to JobKeeper payments to take annual leave, provided that the employee will still be left with an annual leave balance of at least 2 weeks. The employee must consider and not unreasonably refuse such a request. If there is a dispute over this, either the employer or the employee may lodge a Form 13A with the Fair Work Commission.

An eligible employer may direct an employee to work from a different location, including from home, but the performance of the employee’s duties at that place must be safe. The direction must also be reasonable in all of the circumstances. Accordingly, if an employee is concerned about working from home because of domestic or family violence, these concerns should be brought to the employer’s attention and, if the parties are unable to come to a mutually acceptable agreement about the location of work, a Form 13A may be lodged with the Fair Work Commission.

If your employer is eligible, you meet all the eligibility criteria for JobKeeper payments and you complete a Nomination Form, your employer can and should pay you and then be reimbursed by the Government. This is the case even if you have not received any shifts (or very few shifts) since 1 March 2020 due to the coronavirus pandemic. Provided you are still employed (ie, you are still on the employer’s books) then you should be paid.

If you and your employer are both eligible for JobKeeper payments and you have been directed to reduce your work hours in accordance with a JobKeeper enabling stand down direction, you are entitled to be paid the higher of either $1500 gross per fortnight (JobKeeper payment) or the wages for the hours you work. If you say that the hours you are now working attract wages that are less than $1500 gross per fortnight you are nevertheless entitled to be paid $1500 gross per fortnight even without having to work any extra hours. If your employer now asks you to work a third day you should consider that request. You are entitled to the JobKeeper payment without working the extra hours but ultimately it is up to you to decide what you think is reasonable in the circumstances and what you think is best for the future of your employment relationship.

An eligible employer who makes an agreement with an eligible employee about the employee taking annual leave at half pay for a certain period of time must pay the employee the higher of either $1500 gross per fortnight (JobKeeper payment) or the annual leave payment for the hours of your leave.

Currently, the legislation (Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020) does not mention the words ”pro rata”. The legislation simply provides that the employee must not be left with a balance of paid annual leave of fewer than 2 weeks. There may be an argument that this should be read consistently with s87 of the Fair Work Act, which sets out the entitlement to annual leave and provides that annual leave accrues according to the employee’s ordinary hours of service but there is no caselaw on this issue yet.

If you were stood down (whether it was a full stand down or a partial stand down) during March 2020, then, provided both you and your employer are eligible (and provided you have completed and returned your Nomination Form and your employer has paid you at least $1500 gross per fortnight since 30 March 2020), your employer should be reimbursed by the Government for every fortnight since 30 March 2020.

Provided you are still employed and you are not receiving workers’ compensation weekly payments because you are wholly incapacitated, then your employer should pay you the $1500 gross per fortnight. Your employer should get that amount back as a reimbursement from the Government which is paid to employers in arrears.

No, you do not need to exhaust the Fair Work Commission’s dispute resolution process before you are entitled to file an application for a civil penalty order with the Federal Circuit Court of Australia, the Federal Court of Australia or an eligible State court.

The Fair Work Ombudsman has standing (along with employees and their unions) to apply for a pecuniary penalty if the employer has contravened a civil remedy provision.

If you and your employer are both eligible for JobKeeper payments, you should receive the $1500 gross per fortnight even if you are on unpaid leave, provided you are not receiving the Government’s Parental Leave Pay or Dad and Partner Pay.

Employers, employees, unions and employer associations are all entitled to lodge an application to the Fair Work Commission to deal with a dispute about the JobKeeper provisions of the Fair Work Act. The Commission has the power to decide whether to deal with the dispute by way of mediation, conciliation, arbitration, or to make recommendations or to express opinions. Once an application is made (by the Applicant in the matter) the Respondent is entitled to lodge a jurisdictional objection if that is applicable. Commission conferences are held in private whereas Commission hearings are public. Parties generally need the permission of the Commission to be represented by a lawyer in a conference or a hearing. The Commission has the power to order that particular people attend proceedings or produce documents.