The Coronavirus Economic Response Package (Payments and Benefits) Bill 2020 (the Payments Bill) outlines the structure for the JobKeeper payment and refers to the rules which are to be issued by the Treasurer, for administration by the ATO Commissioner. These rules are not yet publicly available and will contain the eligibility requirements for the JobKeeper payments.
The only relevant eligibility requirements outlined in the Payments Bill provide that an employer is not entitled to the JobKeeper payment unless the entity complies with the below pre-payment record keeping requirements, and the post-payment record keeping requirements.
The employer must keep records that enable the entity to substantiate any information that the entity provided to the ATO in relation to the payment before the entity was paid the payment.
If the rules require the entity to keep records that substantiate any information that the entity provides to the ATO in relation to the payment after the entity was paid the payment, then the entity must also keep those records.
Relevant amendments to the FW Act
The Coronavirus Economic Response Package Omnibus (Measures No. 2) Bill 2020 (the Omnibus Bill) outlines changes to the FW Act. It is important to note that these amendments to the FW Act will only apply to employers that qualify for the JobKeeper payment, and will only have affect until 28 September 2020.
The Omnibus Bill provides employers with the ability to make a number of directions and requests, provided numerous criteria are satisfied.
JobKeeper enabling stand down direction:
- An employer can direct an employee to:
- not work on a day or days on which the employee would usually work;
- work for a lesser period than the period which the employee would ordinarily work on a particular day or days; or
- work a reduced number of hours (compared with the employee’s ordinary hours of work), up to and including no hours.
- However, it must be established that the employee cannot be usefully employed for the employee’s normal days or hours because of changes to business attributable to the Coronavirus (COVID-19) pandemic, or government initiatives to slow the transmission of COVID-19.
- Various other criteria must also be met, including but not limited to consulting with the employee (or a representative) before giving the direction.
- If a JobKeeper enabling stand down direction has been given to an employee, the employer must ensure that the employee’s base rate of pay (worked out on an hourly basis) is not less than the base rate of pay that would have been applicable to the employee if the direction had not been given.
- If a JobKeeper enabling stand down direction applies to an employee, the employee accrues leave entitlements as if the direction had not been given.
- Redundancy pay and payment in lieu of notice of termination are also to be calculated as if the direction had not been given, and the employee may request to engage in reasonable secondary employment, training, or professional development, to which the employer must not unreasonably refuse.
Duties of work direction:
- An employer can direct an employee to perform any duties that are within the employee’s skill and competency, if those duties are safe, having regard to the nature and spread of COVID-19 and certain other conditions are met, including but not limited to consulting with the employee (or a representative) before the direction is made.
- If a Duties of work direction has been given to an employee, the employer must ensure that the employee’s base rate of pay (worked out on an hourly basis) is not less than the greater of the base rate of pay that would have been applicable to the employee if the direction had not been given, or the base rate of pay that is applicable to the duties the employee is performing.
Location of work direction:
- An employer can direct an employee to perform duties at a place that is different from the employee’s normal place of work, including the employee’s home, if the place is suitable for the employee’s duties, there is information that leads the employer to reasonably believe that the direction is necessary to continue the employment of one or more employees of the employer, and certain other conditions are met, including but not limited to consulting with the employee (or a representative) before the direction is made.
Days of work request:
- An employer may request that an employee perform their duties on different days or at different times compared with the employee’s ordinary days or times of work, if the performance of the employee’s duties on those days or at those times is safe, reasonably within the scope of the employer’s business operations, and the agreement does not have the effect of reducing the employee’s number of hours of work (compared with the employee’s ordinary hours of work).
- An employee cannot unreasonably refuse a Days of work request.
Annual leave request:
- An employer may request that an employee take paid annual leave, if complying with the request will not result in the employee having a balance of paid annual leave of fewer than two weeks.
- An employee cannot unreasonably refuse an Annual leave request.
Half leave agreement:
- An employer and an employee may agree to the employee taking twice as much paid annual leave, at half the employee’s rate of pay.
The Fair Work Commission may deal with a dispute about any of the above, including by way of mediation, conciliation and / or arbitration.
Employers seeking to implement these changes will need to take advice that is very specific to ensure the requirements of the Bills are met. The Bills will become law once they receive Royal Assent. If your business requires help in understanding or navigating these issues, please contact a member of our Employment team who can assist.
If you require further information or have any queries in relation to this legal update, please contact one of our experts.