Eligible Employees

On 1 March 2020 eligible employees are defined as:

• Full time and part time employees employed
• Long term casuals with at least 12 months service – a long term casual must have regular, systemic employment
• Be over the age of 16 years old
• Australian resident, holder of permanent visa or a special category (subclass 444) visa holder, and
• Employees who have been stood down on or from 1 March 2020
• Employees who have been terminated on or after 1 March 2020 and have been re-hired back through the JobKeeper payment

There is also a requirement that eligible employees have provided a notice to their employer agreeing to the following:

1. To be nominated by the employer as an eligible employee under the JobKeeper scheme (ATO JobKeeper Nomination Form here)
2. They confirm they have not agreed to be nominated by another employer; and
3. They do not have permanent employment with another employer if they are employed as a casual employee with this employer. 

A01: Your non-employee individual is an eligible business participant of your entity for the fortnight if they meet all of the following:

• They are an individual not employed by your entity.
• They are actively engaged in the business carried on by your entity (at 1 March 2020 and for the fortnight you are claiming).

They are one of the following (at 1 March 2020 and for the fortnight you are claiming) 

• a sole trader
• a partner in the partnership
• an adult beneficiary of the trust
• a shareholder or director in the company

As at 1 March 2020, they are:

• aged at least 16
• an Australian resident (within the meaning of section 7 of the Social Security Act 1991), or a resident for income tax purposes and the holder of a special category (Subclass 444) visa.
• not currently receiving government parental leave pay, dad and partner pay.
• not currently totally incapacitated for work and receiving payments under an Australian workers’ compensation law in respect of your total incapacity to work.
• not an employee (other than a casual employee) of another entity
• have given you a JobKeeper nomination notice, and not given another entity a JobKeeper nomination notice.

After you enrol, there will be other notification conditions which you will need to meet. More information will be available soon.

A06: 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.

A08: Employers may be able to select which employees receive JobKeeper payments, despite the government claiming that “one in, all in” was a key feature of the wage subsidy. This is because the Scheme Rules released by Treasury do not require an employer to apply for JobKeeper payments for all employees. The ATOs website also says employers "need to identify which employees you intend to claim the JobKeeper payment for".

We are hopeful further advice or regulation from the Government will come to light on this issue prior to the end of April 2020, when your nomination forms must be submitted (if you intend to claim for the first fortnight in April).

In the absence of further information, you can nominate a selection of employees but be careful you do so on a fair and justifiable basis such as workloads and financial considerations. Keep records of how you made these decisions in case employees try to argue it was discriminatory that they were not nominated.

A16: Superannuation:

• is not payable on JobKeeper payment to an employee who is stood down
• is payable where JobKeeper exceeds the amount payable to the employee based on ordinary times earnings
• is only payable on the hours worked as per normal

For example: If worked $1,000, but Jobkeeper is $1500, superannuation would be payable on the $1,000. Additional examples are on slides 42-44 in the ACA NSW Network Meeting (live webinar) on 16 April 2020.

A17: If you can provide useful work to employees during this period, you can ask your employees to carry out the work as normal. Temporary changes in work arrangements can also be made, by undertaking genuine consultation with employees and following the requirements in the Fair Work Act 2009.

Employees who are working less than their contractual hours may, depending on eligibility, be stood down using the ‘Jobkeeper enabling 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[BSC1] [PM2] training, upskill qualifications
• Non-routine tasks (documentation, updating policies, procedures and tasks that take a back seat during normal operations)
• Assisting other employees/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 the business’ interim needs.

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.

A18: You can 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.

You can also ask for volunteers to ensure a fair and reasonable outcome or apply reduction in hours as an equal proportion across your team.

Q19: Does an employee still qualify for JobKeeper payments if they refuse to work under the following circumstances and how should they respond to the following scenarios?

• If they have a dependent child who is advised not to attend school/pre-school?
• If they are high risk?
• If they live with somebody who is high risk?
• For no apparent reason other than fear and/or desire to self-isolate?
• Does not want Jobkeeper and wants to remain on unpaid leave due to self-isolation?  

A19: An employee can refuse to work if to do so places them in “imminent risk” to their health or safety. If this occurs, they must hold themselves ready to do other work. This is often a challenging question and you need to take into account the nature of the job and also what risk mitigation you have instituted before arriving at a conclusion.

For instance, if hire car driver was asked to transport a COVID-19 diagnosed person from their home to a testing centre and the driver did not have appropriate personal protective equipment (and the passenger as well) then the direction is likely to be one which the driver can lawfully decline to follow the direction.

Generally, there may be some well-founded concern from some employees and accordingly, in the circumstances of COVID-19, a greater degree of tolerance is warranted and recommended where employees may be seen to being ‘overly cautious’ in exposing themselves to risk.

ACA/ACA NSW members' options are:

1. Listen to the concern and determine if it is valid and places the staff at imminent risk to their health and safety.
2. If it is unsafe for employees (pre-existing health conditions, elderly etc.) = work from home, or no work (from home) but paid JobKeeper
3. If it is safe but the employee is refusing to come in:

• • invite them to take their annual leave (if they fall ill while absent from work they would be entitled to take personal leave instead of annual leave). You would then use JobKeeper to reimburse the employer for the leave taken.
  • invite them to take long service leave. You would then use JobKeeper to reimburse the employer for the leave taken.
  • if the employee has no paid leave, they could take leave without pay. The issue with this is, they would still be eligible for JobKeeper payment and this would mean it gets passed on to them. Essentially, rewarding them for not attending work whilst their colleagues have to attend.

You have to determine whether your centre is ‘safe’ based on your specific circumstances and the government health orders. Eg. Do you have appropriate Personal Protective Equipment (PPE)? Does the government advise you have it? Do you have hand sanitiser, running water, soap etc? If you ran out of resources you may deem your centre unsafe, but in ordinary circumstances, your centre will likely be considered safe for your employees that are not in the risk categories (pregnant, elderly etc.)

There is always a risk (as these employees are attending work) that they may be infected with the virus. This may give risk to workers compensation claims in the future. Employers can mitigate these risks by providing PPE, hand sanitiser and otherwise following government health orders.

You may want to write to them and direct them to attend work, as normal disciplinary process may apply but we would advise you to contact ACA NSW on 1300 556 330 or nsw@childcarealliance.org.au before proceeding in this manner

An employee does not need to nominate for JobKeeper with your organisation and by agreement you may agree to unpaid leave at this time if they choose to self-isolate.

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.

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.
• as per normal process an employee can lodge a dispute with the Fair Work Commission if they wish to dispute an employers directions.

It is important to ensure you are compliant with the law at all times.

A25: If you meet the criteria, you may be able to enforce a temporary and partial JobKeeper stand down.

If you do not meet the criteria, options for other lawful arrangements such as the 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 relevant provisions of the Fair Work Act.

A26: 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

You may wish to seek advice from ACA NSW's industrial advice line before proceeding.

A27: Employers are not permitted to direct an eligible employee to take annual leave. However, 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 Employee can not unreasonably refuse this request.

An eligible employer & employee can also agree in writing to the employee taking annual leave at half the employee’s ordinary rate of pay, for a period in which the employer is receiving JobKeeper payments for the employee.

However, being eligible for the payment and receiving the JobKeeper payment are different things.

Employees who are on:

• Government Paid Parental Leave (eg; 18 weeks); or
• Dad and Partner Pay (Eg. 2 weeks),

will not be able to receive JobKeeper payments whilst in receipt of another Government-funded leave.

Whilst it is up to employees to declare any overlaps, you should keep an eye on this.

However, the moment employees on Government paid parental leave (or Dad and Partner Pay):

• return to work;
• take annual leave or personal/carer’s leave (often employees take a period of leave on either end of their parental leave);
• move to unpaid parental leave (eg; for example 6 months or 12 months)

the employee will be entitled to the JobKeeper payment and for this payment to be passed on.

This might feel unusual as the employee was set to receive no pay (from the employer or the Government) for the duration of their unpaid parental leave period but that is what the legislation requires.

JobKeeper payments will only apply for as long as the Government mandates (at the moment until 27 September 2020). After that time the employee will go back onto unpaid parental leave (if they remain on parental leave) or normal wages (if they have returned to work).

If an employee is on employer-funded paid parental leave they will be entitled to JobKeeper payments and you should consider:

• whether they are truly on an employer-funded paid parental leave (or a combination of employer funded and Government Paid Parental leave); and
• whether your company policy needs updating to explain the entitlement criteria more clearly.

There is a lot of crossover and confusion around how JobKeeper interacts with Government Paid Parental Leave, unpaid parental leave and company-funded paid parental leave (the most common of which is a ‘top up’ payment in addition to the Government Paid Parental Leave).

A31: Yes, employees can nominate a start date for the Government Paid Parental Leave, which might be later in the year. This date can’t be changed if the employee is already on Government Paid Parental Leave and their payments have started.

Otherwise, the start date could be after a period of time in which the employee was receiving annual leave (and JobKeeper was being retained by the Company) or receiving the JobKeeper payment (as the Company passed it on while the employee was on unpaid parental leave).

ACA & ACA NSW TOOLS:

1. ACA NSW's Calculator (Excel Spreadsheet) - Revenue Estimator (for LDCs) for one or more fees higher than the CCS Hourly Rate Cap
2. ACA NSW's Calculator (Excel Spreadsheet) - Revenue Estimator (for LDCs) for all fees equal/under the CCS Hourly Rate Cap
3. ACA National Committee's Calculator (Excel Spreadsheet) - Business Continuity Payment

REFERENCES:

1. Federal Department of Education's Frequently Asked Questions (including Supplementary Funding application online form)
2. Federal Government's Overview of the JobKeeper Payments package
3. Federal Treasury's Overview of Support for Business (COVID-19)
4. Federal Treasury's Factsheet - JobKeeper Payments (General Overview)
5. Federal Treasury's Factsheet - JobKeeper Payments - Information for Employers
6. Federal Treasury's Factsheet - JobKeeper Payments - Information for Employees
7. Australian Taxation Office - Register for JobKeeper Payment here
8. Federal Department of Education - (COVID-19) - Information for ECEC providers and services