Frequently Asked Questions

Frequently Asked Questions

Do current staff have to work to obtain the JobKeeper payment?

Not necessarily. They do need to have been employed as at 1 March 2020 as a full-time, part-time or long term casual and paid $1500 minimum per fortnight (per the defined wage periods). 

What if the employee has decided they do not want to work until they feel safe to do so?

If there is work that can be safely undertaken, they have to comply with their employment terms and work the hours that are available.  Clients should seek employment advice on the individual circumstances from ER Strategies.  

If the store closes are eligible employees still entitled to receive the Job Keeper payment even though they are not working and the business is temporarily closed?

Yes, provided the employer has made the $1500 per fortnight payment in line with the JobKeeper program requirements. 

What if staff don't want to work but still want the JobKeeper Payment?

The employee must fulfil their employment agreement by working the available hours of work.  This could become a disciplinary issue if the employee refuses a reasonable direction. Where an employee does not want to come to work, employers could look to agree to alternative arrangements where the employee works from home perhaps where this is suitable, or takes Annual Leave or Long Service Leave if available. 

All staff hours have reduced in line with lower sales and I am rostering them on to meet the business needs but also based on their availability - is this sufficient or do I need to document something here? By reducing their hours, is this a stand down direction? Is this the same for Part timers and casuals?

Reduced hours can be a stand-down direction, but if this is already operating you may have previously had a mutual agreement to reduce hours of work.  There is no requirement to change this arrangement. 

Alternatively, if your business qualifies under the new JobKeeper program and you now need to make a further change you can provide the required written notices, then the arrangement will become a stand down direction under the new legislation.   

The legislation applies equally to all eligible employees including full-time, part-time and long term casual employees. 

Can the Job Keeper wage subsidy cover the cost of annual leave taken over this period?

Yes, on the basis that whether the employee works or not, the employer is still entitled to receive the JobKeeper wage subsidy where the scheme requirements are met. 

Can the employee take the full annual leave balance if they wish?

Yes where this is at the employee’s request. However, 2 weeks leave has to remain to the credit of the employee if it is a result of an agreement reached under the new provisions. 

Does the JobKeeper cover the cost of sick leave taken for eligible employees?

Yes, on the basis that whether the employee works or not, the employer is still entitled to receive the JobKeeper wage subsidy where the scheme requirements are met. 

Does Annual Leave and Personal/Carer's Leave only accrue based on the actual time worked and not on the full amount of Job Keeper paid? Does Annual Leave and Personal/Carer's Leave still accrue if staff are not working?

Under the new section 789GS of the Fair Work legislation, it is clear that leave continues to accrue as if a stand down or reduction of hours direction had never been given (e.g. continues to accrue on their contracted hours – such as 38 hours for a full time employee).  

This leave will accrue as normal if employees have been stood down wholly (i.e. zero hours worked), have suffered a reduction in hours or if they are working their regular hours.  

It is important to note that a period of stand down, or reduced hours, also does not impact access to additional entitlements such as calculations of notice or redundancy pay if applicable. 

If a staff member is made redundant do they receive a redundancy payment?

Whilst the short answer may be yes if the employee meets the redundancy payment criteria (e.g. years of service, not a casual etc), if an employee is eligible for the JobKeeper payment, you may decide redundancy is not the most suitable option. An eligible employee will receive $1500 per fortnight if they remain employed by their employer, even if in the short-term the employer is unable to provide productive work for all or part of the employees working week and other scheme requirements are met. 

The amendments to the Fair Work Act have extended the stand down provisions to apply to certain employees who cannot be usefully employed as a result of the Pandemic. Although it may seem that a role is redundant in the short term, businesses should remain hopeful that employees will be able to continue in their current roles when government social distancing restrictions are relaxed hopefully later in 2020. The amended provisions of the Act also allow employers to provide alternative duties and work arrangements to eligible employees to mitigate job losses during this time.   

At the conclusion of the JobKeeper scheme, if an employee’s role is still no longer required, employers could consider redundancy as an option then after consulting with their ER experts. If this occurs, redundancy payments may then be payable to the employee at that time, and will include the additional period the employee remained employed but eligible under. the JobKeeper scheme. 

Employee is ‘fit’ to work, no government restrictions, however unwilling to attend due to fear of COVID 19, what can I do?

An instruction to come to work by the employer is a lawful and reasonable instruction, unless the employee has legitimate excuses to be absent i.e. sickness etc. 

Fear of risk of contracting COVID 19 may not be a legitimate excuse unless you have specific circumstances that make it so  

We suggest 2 routes, which a business can take, as follows:   

Option 1   

Call the employee, find out what is the reason for any unauthorised absence and direct them to attend work per their employment agreement if their reason is not acceptable 

If the employee refuses to attend work as directed, then it may result in:  

– Disciplinary action, which may include warnings; or

– If the employee still refuses to attend after several directions/requests, it could potentially lead to termination of employment.  

However, in the current environment where much of the population will have serious concerns about their health and that of others they may be responsible forcareful consideration should occur before acting, as employees may have recourse through unfair dismissals, general protections claims etc. Call ER Strategies for advice.  

Option 2   

Call the employee and discuss with them the reasons for their fear and seek to come to an alternative arrangement.  

Sometimes the business has capacity to authorise the employee to take leave as follows: 

– Come to a mutual arrangement whereby the business provide the employee with a period of authorised absence without pay, and then request them to return to work;  

– come to a mutual arrangement whereby the employee can take annual leave or long service leave, and then return to work.  

One key thing here is it all comes down to reasonableness, as provided under the recent temporary changes to the Fair Work Act. Specific COVID-related safety concerns relating to the employee’s specific circumstances need to be given consideration.  

Can I reduce the hours of work of my employees?

If your business qualifies for the JobKeeper program, you can issue a direction to stand down reducing hours of work or days of work but maintaining the hourly rate of pay. 

Under the Restaurant, Hospitality and Clerks Awards there is now greater flexibility to reduce hours of work.  For Restaurants, the hours of work can be reduced to between 60% and 100% of their normal hours of work and for Clerks by agreement they can be reduced down to 75% of the normal hours of work. 

For other employees you will need to follow the relevant award provision or review the employee contract of employment for Award free employees to make changes and this will normally involve reaching an agreement. 

Can I direct an employee to take annual leave?

If your business qualifies for the JobKeeper program you can request an employee takes annual leave and the employee must consider this request and cannot unreasonably refuse the request. 

Under the Restaurant and Hospitality awards, you can direct an employee to take annual leave with as little as 24 hours’ notice, but after you have taken into account the personal circumstances of the employee.   

For the Clerks Award, it is a week’s notice or a shorter period by agreement. 

For other employees, generally the taking of annual leave has to be by agreement. A closedown can be called with 4 weeks’ notice to require the employee to take leave, or where there is excessive leave accrued you have to provide 6 weeks’ notice to the employee.   For awardfree employees, you can direct them to take leave if this is a reasonable request and you can call a closedown. 

What happens if schools close and my employees are required to be absent from work to care for their children or family members?

The Fair Work Act provides for Personal / Carer’s leave. Carer’s leave encompasses caring for a family or household member in the event of an illness, injury or an unexpected emergency. As this is unprecedented, school closures could be an example of an ‘unexpected emergency’. Employers should work with employees where possible to support carer’s leave requests during this time. Evidence requirements can include school communications outlining the closure. Normal school holiday periods would not be included as an unexpected emergency, and any paid absence during this time would need to be due to illness or injury to fall under this entitlement. 

What are the hours of work when working from home?

If your business qualifies for the JobKeeper program, you can give a direction to the employee to work at a different location, provided the place of work is suitable and the travel involved is not unreasonable in all the circumstances. 

For the Clerks Award, there is greater flexibility for working from home by agreement, after a request from the employee. Day workers can work from 6am to 11pm Monday to Friday and from 7am to 12.30pm on Saturday. No shift penalties apply for the evening work.  For other employees the hours of work are determined by the relevant award and for awardfree employees, by the contract of employment and any agreed change to the contract of employment. 

During a stand down does an employee get paid for public holidays?

Yes, employees other than casuals must be paid for any public holiday that would have been a work day during their rostered hours of work.

Does an employee accrue annual leave and personal leave during a stand down?

Yes, as if there had been no stand down direction given. 

We cannot stand down employees at this stage, but one of our employees has requested to take leave without pay for reasons that are specific to their circumstances. Does the employee accrue annual leave and personal leave and get paid for public holidays?

No, they do not because it is not considered as service when it is unpaid leave, and there are no ordinary hours of work for the employee to be entitled to payment for a public holiday. 

We have some employees that have agreed to take annual leave and long service leave. Are they entitled to the public holidays that fall within the period of leave?

Yes, they are paid for the public holidays during annual leave and long service leave under relevant legislation and generally their leave is extended by a day for each holiday falling within the period of leave.

Can an employee take personal leave when stood down?

Our view is they probably can if they can meet the requirements for the leave, but note that there is a Federal Court case on this issue to be heard in May involving Qantas, which is refusing to allow employees to take personal leave when stood down.