JOBKEEPER PAYMENT & DIRECTION KNOWLEDGE BASE

A. Employers can use their MyGovID account to access the ATO Business Portal to register their business on or after the 20 April 2020.

The Australian Tax Office (ATO) deadline for applying into the scheme from the first fortnight commencing 30 March 2020 has been extended to 31 May 2020. Eligible employers can enter the JobKeeper scheme at any stage after that.

A. The ATO may need to consider an alternative test to determine employer eligibility for the JobKeeper Payment in regard to turnover.

For employees who were employed by the previous owner and transferred employment to the new owner, prior service will count as far as their eligibility is concerned.

A. A casual is likely to be considered “regular and systematic” if they have had a recurring work schedule or a reasonable expectation of ongoing work. Hours may vary from week to week and it can still be deemed “regular and systematic”.

Also, breaks in service such as for seasonal workers may also NOT disqualify an employee from this definition as the employer’s system requires them to work in that fashion. You would likely have to demonstrate that there is an expectation of ongoing work.

A. You will need to notify your eligible employees that you will be claiming the JobKeeper Payment. You will also need to provide your eligible employees with a JobKeeper Employee Nomination Notice (ATO Form) and they are required to complete and return this to you. Participating employers will be required to ensure eligible employees will receive, at a minimum, the applicable JobKeeper Payment amount, before tax.

Employers have been granted the flexibility to ensure any payment to eligible employees from 30 March 2020 can be made up until 8 May 2020 (*extended from 30 April 2020). If you make payments after this date you will not be eligible for the JobKeeper Payment for that employee for the first 2 fortnights of the scheme.

After this period, employers are required to pay employees in accordance with their normal pay cycle, at least the applicable JobKeeper Payment amount, or the equivalent of this if the pay period is weekly or monthly.

For the fortnights commencing on 3 August 2020 and 17 August 2020, the ATO granted employers a further extension up until 31 August 2020 to meet the wage condition for all new eligible employees included in the JobKeeper scheme under the 1 July eligibility test.

A. You have the option to register and process the JobKeeper Payment to employees stood down from work without pay. However, eligible employers will not receive the applicable JobKeeper Payment amount per eligible employee per fortnight until the first week of May 2020. This can include backdated payments to cover the period commencing from 30 March 2020.

Employers are required to make payments to eligible stood down employees throughout April (i.e. before the employer has in fact received any payment from the Government), however, it is also possible to backpay the employees from when the scheme commenced on 30 March 2020.

Eligible employers will continue to report monthly to the ATO in order to receive the subsidy for the previous month.

A. The ATO will be relying on Single Touch Payroll (STP) information to validate eligible employees and ensure they have been paid by the employer. If you do not use a STP compliant payroll solution, the ATO will accept manual reporting via their portal.

Whilst the ATO have made statements confirming that the first payment will be made in the first week of May, the legislation states that the ATO has up to 14 days after the completion of each monthly period to make JobKeeper Payments to eligible employers for the previous month.

A. The JobKeeper Payment from 30 March 2020 to 27 September 2020 will be limited to $1,500 per eligible employee and/or business participant each fortnight.

The JobKeeper Payment from 28 September 2020 to 3 January 2021 will be paid at two different rates for eligible employers. A fortnightly payment of $1,200 per eligible employee who during the month of June or February 2020 (whichever is greater) worked in excess of an average of 20 hours per week and for all other employees (and business participants) the fortnightly payment will be $750.

The JobKeeper Payment from 4 January 2021 to 28 March 2021 will then be reduced to $1,000 and $650 respectively, per fortnight, for employers who continue to be eligible.

A. It may be possible to treat these additional payments as overpayment errors – as you have mistakenly paid something that the employee was not entitled to. Employers are not permitted to take money out of an employee’s pay to fix up a mistake or overpayment.

Instead, the employer and employee should discuss and agree on a repayment arrangement.

A. No. It may not be practicable for your business to commit to the above obligations.

A. Yes.

A. Superannuation is not required to be paid for the amount supplemented by the Government if the employee is not working. If the JobKeeper Payment is supplementing a salary or wages for work performed, super is payable on the salary or wages – as it would normally be.

A. Yes. However, if an eligible employee is receiving paid leave such as Parental Leave or Dad & Partner Pay in the fortnightly period they are ineligible for the JobKeeper Payment in that fortnightly period.

A. Yes – so long as the employee is paid at least the applicable JobKeeper Payment amount per fortnight, through leave payments, overtime payments, allowances, etc the employer will have met their obligation.

A. No. If an eligible employee is totally incapacitated and is in recept of workers compensation payments in the fortnightly period they are ineligible for the JobKeeper Payment in that fortnightly period.

A. Yes. The scheme is designed to encourage employers to re-hire employees that may have been terminated, such as those made redundant.

This can only be done with mutual agreement with the employee – and this can be on any terms that are deemed satisfactory to both parties (including pay, role, etc.). The parties may also need to agree on terms requiring the repayment of any termination pay.

A. Yes. However, the top-up amount will not be subject to superannuation.

A. It is always open to you to request that employees increase their number of hours. If employees agree, then the situation should be relatively straight-forward. 

Some modern awards provide specific rules about the rights of employers to increase employees’ hours, and these should be checked carefully. In addition, the JobKeeper amendments to the Fair Work Act 2009 provide a mechanism for employers to request that employees perform their work at different times to usual, and provide that employees can only refuse this request where it is reasonable to do so.

In cases before the Fair Work Commission, there is some suggestion that this mechanism can be used to compel employees (including casual employees) to work increased hours (unless they have a reasonable ground to refuse). Given the uncertainty in this area, we would recommend employers seek professional advice.

A. Yes. If they have continued to be employed on a regular and systematic basis then they will be eligible.

A. Employees who do not follow a reasonable and lawful instruction from their employer to work or who are unable to provide a satisfactory reason as to why they cannot perform work (such as personal leave) can be disciplined up to termination of employment. Seek professional advice if considering such actions.

A. Yes. You are able to (informally) request the casual employee to work whatever hours the business requires. We would recommend being as open and as consultative as possible with the employee. If you explain to the employee why you need them to work the additional hours (e.g. for the future viability of the business, which will help secure their job) then it would be hoped that they would be agreeable to this. 

There is also currently an ability under the JobKeeper amendments to the Fair Work Act 2009 to enable the employer to (formally) request an employee to work different hours and times to their ordinary hours, and employees must comply with the request unless it is unreasonable to do so. It is not entirely clear whether this request can be used to increase an employee’s ordinary hours.

Ultimately if a casual employee refuses to work any shifts it may be possible to terminate their employment. We would suggest that you contact Employment Innovations for advice on your individual circumstances.

A. The position for terminating the employment of a casual employee would be the same as before JobKeeper.

Remember that long-term casual employees have a right to claim unfair dismissal so that it would be advisable to follow a formal procedure before terminating employment to reduce the risk of any claims. Please contact Employment Innovations if you require advice on the process to follow.

A. No. The only requirement is that the employee is earning at least the applicable JobKeeper Payment amount per fortnight. But it may be fair and equitable to review these arrangements in consideration of the JobKeeper Payment.

A. Yes. But the employee will only be eligible for JobKeeper up until their termination.

A. It is expected to be confirmed that paid leave counts towards hours worked in February and June 2020 and that there will be discretion applied in circumstances where unpaid leave was taken in either period, e.g. for an emergency response to the bushfires in February.

A. Current JobKeeper Payments will cease on 27 September 2020 to eligible employers who have successfully applied for JobKeeper up until this date.

The second round of JobKeeper Payments will run from 28 September 2020 to 3 January 2021 to eligible employers who have met the minimum decline in the turnover test for the previous quarter.

The third round of JobKeeper Payments will run from 4 January 2021 to 28 March 2021 to eligible employers who have met the minimum decline in the turnover test for the previous 3 quarters.

A. While there are no specific rules regarding this, best practice would be to give employees as much notice as possible.

A. No. The employee’s rate of pay cannot be reduced, for the hours which they actually work once a direction has been given.

A. Yes. You can give an “enabling stand down direction” to work fewer hours or days when they cannot be usefully employed for their normal hours due to business changes caused by the pandemic or government initiatives.

Legacy employers who satisfy a 10% turnover decline are only permitted to reduce the hours of an employee to a minimum of 60% of their ordinary hours as they were on 1 March 2020.

Employees will not be entitled to be paid for the times where they are not working, subject to the rule that they must be paid at least the applicable JobKeeper Payment amount per fortnight, before tax.

Employees and employers under JobKeeper (including legacy employers) will also be able, “despite any limitations in a designated employment provision” (e.g. an award) to come to an agreement about working different days and times outside of ordinary hours.

Legacy employers who satisfy a 10% turnover decline must ensure that an employee is to work a minimum of two (2) consecutive hours each day.

A. Yes. You can direct employees to undertake different duties and perform work in a different location (including work from home), so long as the directions are reasonable, safe and within the employee’s ability.

A. Employees must be consulted with about any proposed changes and employees must be given a  written direction of the changes with at least 3 days’ notice.

Legacy employers who satisfy a 10% turnover decline must provide a longer period of notice before giving a JobKeeper enabling direction – 7 days rather than 3 days, and have expanded consultation requirements.

A. The employer can only give a direction if the affected employee cannot usefully be employed for their normal hours and normal activities during the period of the direction. The direction must ensure work can be performed safely, and within the employee’s skills and competencies.

A. Yes, but only up until 28 September 2020. Employers are able to request JobKeeper employees take annual leave (even when they are stood down), so long as they have at least two weeks leave remaining. Employees can only refuse the request on reasonable grounds. 

It would be possible to request employees to take a period of annual leave per fortnight that the JobKeeper subsidy could be used to subsidise. To simplify this process, you may find our downloadable JobKeeper Enabling Direction Letter templates helpful.

Employees and employers under JobKeeper will also be able, “despite any limitations in a designated employment provision” to come to an agreement about taking double the amount of annual leave, paid at half pay.

A. If the employee unreasonably refuses the request, an application can be made to the Fair Work Commission to compel the employee to take annual leave.

A. The employee continues to accrue as if no direction or agreement has been made under these new rules.

A. Leave operates as if there was no JobKeeper direction in place, i.e. if a full-time employee has had their days reduced to one day per week and they take a week of leave, they will still be paid for a full week.

A. No. This means that an employee should still be paid for any public holidays as normal if they would have been absent from work and paid prior to the stand down.

The JobKeeper Payment can subsidise wages paid on public holidays, but these wages would be subject to normal on-costs (such as superannuation).

A. If an employees’ hours have been varied in accordance with a JobKeeper Enabling Stand Down Direction, then their leave accrues at their ordinary pre-JobKeeper rates, even if their hours have been reduced or they have been stood down.

If their hours have changed due to an agreement between the employer and employee then leave accruals will depend on what was agreed between the employer and employee.

A. No. If you are eligible to exercise a JobKeeper Direction you will not need to follow specific terms in an Award or Agreement in relation to that process (including the recent changes to some awards in this area).

A. Yes – but the rules regarding requiring employees to take long service leave will vary from State to State. Please contact Employment Innovations for more information.

A. Employers remaining within the JobKeeper scheme can continue to use JobKeeper Directions up until the 28 March 2021. Legacy employers will have access to a reduced set of JobKeeper Directions for the same period, so long as they satisfy a 10% turnover decline.