Ai Group have answered thousands of questions about theJobKeeper scheme since it was introduced. Here are some answers to our most frequently asked questions.
The following content is based on information availableat the time of publishing and does not constitute legal advice.
2 February update: Some answers have been updated to reflect the current state of the JobKeeper Scheme and a new question has been added "What JobKeeper enabling stand down directions can ‘legacy’ employers use?"
The JobKeeper Paymentis a payment made to eligible businesses and not-for-profits affected by the COVID-19 pandemic to support them in retaining employees.
Where an employee’s total payis less than the JobKeeper payment amount per fortnight (before tax), for example because the employee has been stood down, the employer must provide the employee at least the JobKeeper amount per fortnight (before tax). Where an employee earns more than the Jobkeeper payment amount per fortnight, employers can use the payment as a partial reimbursement of the employee's wages.
The JobKeeper payment amount from 30 March 2020 to 28 September 2020 was $1,500 per fortnight. The amount was scaled down under the extended JobKeeper arrangements that continued beyond 28 September 2020, and further reduced from 4 January 2021 until the expiry of the scheme on 28 March 2021.
From 28 September 2020, the JobKeeper is paid on a two-tiered system of payment. The tier 1 rate of pay applies to employees who were working an average of at least 20 hours per week in the four weeks before 1 March 2020 or 1 July 2020. The tier 2 rate applies to all other employees.
The amount of JobKeeper payments reduced for the fortnights commencing on 28 September 2020, and further reduced for the fortnights commencing 4 January 2021 until the JobKeeper scheme ends on 28 March 2021.
The rates of pay announced by the government are set out in the table below
| Tier 1 | Tier 2 | |
|---|---|---|
| 28 Sep 2020 - 3 Jan 2021 | $1,200 per fortnight | $750 per fortnight |
| 4 Jan 2020 - 28 Mar 2020 | $1,000 per fortnight | $650 per fortnight |
Ai Group's JobKeeper 2.0 Payment Notification Letter can be used by employers to notify eligible employees of the updated rates of pay and eligibility during the extended JobKeeper period.
Employers are eligible for the JobKeeper Payment on behalf of their employees if:
To continue to be eligible under the extended JobKeeper period commencing 28 September 2020, an employer is required to demonstrate that its turnover has fallen by the required amount (i.e. 30% or 50%) in the September 2020 quarter or the December 2020 quarter compared to the corresponding period in the previous year.
Note that employers that are no longer eligible to receive JobKeeper Payments, but continue to have a certified reduction in turnover of at least 10% may use most of the JobKeeper enabled directions in relation to hours of work, location of work and work duties.
See What changes have there been to the Fair Work Act because of the JobKeeper scheme? below or our Member Advice NAT 083/20 – Extension of the Fair Work Act provisions which support the operation of the JobKeeper scheme for more details about JobKeeper enabling directions.
Most importantly, an eligible employee is someone who is employed by an eligible employer. If employed by an eligible employer to be eligible for the JobKeeper Payment an employee must be:
Eligible employees must also complete a 'JobKeeper payment – employee nomination notice' acknowledging that they wishto be nominated by theiremployer in their JobKeeper application. The form is available on the Australian Tax Office (ATO) website.A casual employee may not nominate with an employer if they are also employed by another employer on a permanent basis.
Ai Group's JobKeeper Payment Notification Letter canbe used by employers to notify eligible employees of their intention to access the JobKeeper Payment and prompt them to complete the JobKeeper payment – employee nomination notice.
Please see our member advice NAT 073/20 –Updated Information: Changes to JobKeeper from August for further information.
Please see our member advice NAT 040/20 – Updated Advice – Australian Government JobKeeper scheme: Eligibility and structure, the ATO website and the Treasury Fact Sheets and FAQs for further information.
Most businesses will use the basic test whereacomparable period in the 2019 financial year will be used to benchmarkthe effect of the COVID-19 pandemic on the turnover of the business to see if it has decreased by 30% (or other relevant percentage).
The Treasury Fact Sheets and FAQs contain the following guidance on the basic test for turnover:
To establish that a business or not-for-profit has, or is likely to, face the relevant fall in their turnover, most would be expected to establish that their turnover has or will likely fall in the relevant month or quarter (depending on their Business Activity Statement reporting period) relative to their turnover in a corresponding period a year earlier. Turnover is calculated as it is for GST purposes, and is reported on Business Activity Statements. It includes all taxable supplies and all GST free supplies but not input taxed supplies.
The Tax Commissioner has determined alternative tests for fall in turnover for businesses where there is not an appropriate relevant comparison period.
From 28 September 2020, employers will need to re-assess their eligibility based on their turnover during the September 2020 quarter to remain eligible for JobKeeper. A further re-assessment will be required on 4 January 2021.
Please see our member advice NAT 040/20 – Updated Advice – Australian Government JobKeeper scheme: Eligibility and structure, the ATO website and the Treasury Fact Sheets and FAQs for further information.
The JobKeeper Payment is administered through the ATO.
Eligible entities must enrol to receive the JobKeeper payment and then identify and maintain their eligible employees.
A JobKeeper employee nomination notice must be completed by all nominated employeesand returned to the employer before aJobKeeper payment can be claimed for that individual employee.
For further information on the enrolment process see the ATO website.
The scheme starts from 30 March2020 and to be paid the JobKeeper payment, eligible entities must:
The JobKeeper payment is paid to employersmonthly in arrears beginning in May 2020 and will be paid into thenominated bank account as per the organisation's most recent tax return.
No, there is no legal requirement for eligible businesses or not-for-profits to apply for the JobKeeper Payment.However, if entities choose not to participate they will not be able to access the wagesubsidy.
If an employer chooses to participate in the scheme, and eligible employees agree to be nominated by the employer, the employer must ensure that all of these eligible employees are covered by their participation in the scheme. Employers cannot select which individualeligible employees to nominate.
Yes, employees can choose to decline to be nominated by the employer.
The JobKeeper employee nomination notice has an option for an employee to decline to be nominated. An employee might decline to be nominated, for example, because they have nominated to participate in another employer’s scheme (if they have two jobs).
Employees that are totally incapacitated and are receiving workers’ compensation payments in accordance with workers’ compensation legislation are not eligible to receive JobKeeper payments.
However, employees who have partial capacity in accordance with a Certificate of Capacity but are not working any hours due to a lack of suitable duties, may be regarded as an eligible employee.
Ai Group members are encouraged to call or email the Ai Group Workplace Advice Line for specific advice on this issue of workers’ compensation and JobKeeper Payments.
An employee hired in April would be eligible for JobKeeper payments from 3 August 2020.
Employees who were hired after 1 March 2020 were not eligible for JobKeeper Payments for JobKeeper fortnights earlier than 3 August 2020. From 3 August 2020 onwards, the date for assessing employee’s eligibility changed from 1 March 2020 to 1 July 2020.
If an employee resigns or is terminated after 1 July 2020, they will not be able receive JobKeeper Payments from their new employer. There may be some limited exceptions that may apply if the employee is employed within the same corporate group.
An individual can be an eligible employee of an entity even if the business in which the individual is employed changes hands after 1 July 2020.
Therefore, these employees can be regarded as eligible employees of their new employer and the new employer can claim JobKeeper Payments from the ATO for them.
Legislation has been passed by Parliament temporarily amending the Fair Work Act 2009 (FW Act) to support the practical operation of the Australian Government’s JobKeeper scheme in Australian workplaces.
The amendments temporarily insert a new Part 6-4C (Coronavirus economic response) into the FW Act which will be automatically repealed on 28 March 2021.
The amendments to the FW Act allow employers who are eligible to access the JobKeeper scheme to:
Only employers that qualify for the JobKeeper scheme are eligible to use the new provisions in the FW Act.
Following the extension of the JobKeeper Scheme from 28 September, the FW Act gives different rights to employer and employees based on whether the employer continues to be eligible for JobKeeper after 28 September:
See Member Advice NAT 032/20 - Australian Government JobKeeper scheme: Amendments to the Fair Work Act for further information.
An employer who continues to qualify for the JobKeeper scheme for a particular employee is able to give a JobKeeper enabling stand down direction to the employee requiring the employee to work for less hours than the employee would ordinarily work (including nil hours).
The direction can only be given if the employee cannot be usefully employed for their normal days or hours during the period because of changes to the business attributable to the COVID-19 pandemic or Government initiatives to slow transmission of the Coronavirus.
The direction must be safe and must not be unreasonable in all the circumstances.
A JobKeeper enabling stand down direction has effect despite any inconsistent provisions in an applicable award, enterprise agreement or contract of employment.
The employer must give the employee at least three days written notice of the intention to give a direction (or lesser period by agreement) and must consult the employee or the employee’s representative about it and keep a written record of the consultation. Any direction must be in writing (which can be by electronic means).
During the period when the direction applies:
The employer must also comply withpayment obligations and rules around theemployee's base rate of pay.See Member Advice NAT 032/20 - Australian Government JobKeeper scheme: Amendments to the Fair Work Act for further information.
Before standing down employees Ai Group Members are urged to contact Ai Group or Ai Group Workplace Lawyers for advice. Please call our Workplace Advice Line on 1300 55 66 77 for assistance.Ai Group Members are urged to contact Ai Group or Ai Group Workplace Lawyers for advice. Please call our Workplace Advice Line on 1300 55 66 77 for assistance.
An employer who no longer continues to qualify for the JobKeeper scheme, but has a certified ongoing reduction of at least 10% of turnover, are still able to provide JobKeeper enabling directions to employees with some limitations. Employers are required to obtain a '10% decline in turnover' certificate from an eligible financial services provider. Small businesses with less than 15 employees are able to self-certify.
Legacy employers may issue directions eligible employees about work duties, work location and the number of hours of work. The two main differences compared to issuing directions to employees that continue to receive the JobKeeper payment are:
Before standing down employees Ai Group Members are urged to contact Ai Group or Ai Group Workplace Lawyers for advice. Please call our Workplace Advice Line on 1300 55 66 77 for assistance. Ai Group Members are urged to contact Ai Group or Ai Group Workplace Lawyers for advice. Please call our Workplace Advice Line on 1300 55 66 77 for assistance.
Yes, an employee who is working and receiving the JobKeeper Payment continues to accrueleave entitlements.
If an employee has been stood under section 524 of the FW Actor is on a JobKeeper enabling direction stand down (working reduced hours or no hours at all)then they also continue to accrue leave entitlements on the ordinary hours they would have worked.
Yes. Under the FW Act, an employee is entitled to make a request to their employer to take annual leave during a stand down and the employer cannot unreasonably refuse. This process has not changed with the introduction of the JobKeeper scheme.
If an eligibleemployee takes annual leave when they are receiving the JobKeeper payment, it would come from their annual leave entitlement as normal and the organisation willcontinue to receive the JobKeeper payments for that employee.
The JobKeeper Payment rules continue to applyso the employee must be paid at least the $1,500 JobKeeper Payment, or the actual wages they are entitled to for that fortnight, whichever is greater.
Superannuation continues to be paid for any annual leave payments.
Under the JobKeeper amendments to the Fair Work Act, until 27 September 2020:
From 28 September 2020 those provisions were repealed. However, many modern awards continue to have provisions allowing employers and employees to agree to taking annual leave at half pay.
See Member Advice NAT 078/20 – Extension of the Fair Work Act provisions which support the operation of the JobKeeper scheme for further information.
Each state and territory has different legislation for long service leave which means that the ability to direct employees to take long service leave depends on the jurisdiction.
Ai Group members are encouraged tocontact the Workplace Advice Line on 1300 55 66 77 for assistance.
Annual leave and personal/carers leave paymentscounttowards the salary payments an organisation needs to make to be eligible to claim the JobKeeper Payment for an employee.
For example if an employee takes 2 days of paid annual leave by agreement or 2 days of paid personal/carer’s leave, the amounts paid to the employee for these leave types can be used to towards the calculation of the $1,500 that you need to pay to the employee to receive the subsidy from the ATO.
Yes. If the employees is eligible, and they are not receiving Parental Leave Pay orDad and Partner Pay from Services Australia, they will be entitled to be paid JobKeeper Payment. If the employee is receiving Parental Leave Pay or Dad and Partner Paythey will not be eligible.
Yes, an employee who is on unpaid leave is eligible to receive JobKeeper Payments, provided that they are an eligible employee.
Yes, an employer is entitled to receive the JobKeeper Paymentin respect of employees on paid annual leave or long service leave, provided that they are eligible employees.The amounts the employee receives for being on paid leave will count as amounts earned for determining whether the employee needs to be topped up from the JobKeeper payment.
If an employee continues to work, superannuation would be payable on the amount paid to the employee in accordance with the agreement between the employer and the employee.
If the employee is eligible for a top up payment from the employer, the employer only needs to pay superannuation on the amount paid to the employee in accordance with the agreement between the employer and the employee (but not on the top up amount).
If the employee has been completely stood down and not working, and is receiving the flat $1500 JobKeeper Payment, the employer would not be required to pay superannuation on this amount.
An employee who is paid monthly can continue to be paid as per their normal pay cycle.
Some employers may elect to temporarily move to a fortnightly pay to make it easier to align with the JobKeeper Payments. If employees are paid monthly, they must have received the monthly equivalent of $1,500 per fortnight. The employer will be paid the JobKeeper Payment from the ATO monthly in arrears.
Yes, an employer can decide to re-employ an employee. The employee will be eligible for the JobKeeper Payment because they were a permanent employee andemployed by an eligible employer on 1 March 2020.
An employer does not need to re-employ people who have had their position terminated if they do not want to.
An employee can be requested to work more than their contracted part time hours, but they cannot be forced to work the additional hours.
If they are an eligible employee, they will still be entitled to receive the JobKeeper Payment from the ATO. The ATO will pay the money to the employer, and the employer must pass on the payment to the employee in full.
The starting position is that an employee is entitled to continue to be paid their normal wage for the relevant pay period. If this is higher than their JobKeeper payment amountthe employer will still receive the JobKeeper paymentfrom the ATO to subsidise the employees wage.
If the employee cannot be usefully employed for their normal days or hours because of changes to the business as a result of the COVID-19 pandemic, then the employer can give a JobKeeper enabling stand down direction requiring the employee to work fewerhours. If the employer continues to receive JobKeeper on behalf of that employee, the direction can reduce the employee’s hours to nil hours. If the employer no longer receives JobKeeper but qualifies as a legacy employer, the maximum reduction that the employer may direct is 60% of that employee’s hours in March 2020.
However, employers must be aware that such a direction can only be given if the employee cannot be usefully employed for their normal days or hours during the period because of changes to the business attributable to the COVID-19 pandemic or Government initiatives to slow transmission of COVID-19.Before standing down employees Ai Group Members are urged to contact Ai Group or Ai Group Workplace Lawyers for advice. Please call our Workplace Advice Line on 1300 55 66 77 for assistance.
See Member Advice NAT 083/20 - Extension of the Fair Work Act provisions for the operation of the JobKeeper scheme for further information.
Where an employee has multiple jobs and qualifies for JobKeeper payments with more than one employer, that employee cannot swap their nomination once they have nominated one over the other.
The exception to this is an employee who nominated for JobKeeper with an eligible employer from 1 March 2020, and that employee later started with a new employer before 1 July 2020. In that circumstance, the employee could nominate with the new employer based on the 1 July 2020 eligibility date.
If an employee’s employment ends for any reason, including termination due to redundancy or misconduct, they will cease to be an eligible employee of the employer.
The employer must notify the ATO when an employee leaves employment. The employer will stop receiving JobKeeper payments for that person.
State and territory jurisdictions are looking at both workers’ compensation premiums and payroll tax to identify how they should be considered in the context
Clinton is the Publications Manager at Ai Group. He is responsible for a number of key services including Annotated Modern Awards, Workplace Relations Handbooks and the management of Ai Group’s HR and Health & Safety Resource Centres. Clinton has a Masters in Employment Relations and previously held advisory roles with the Workplace Authority and Fair Work Ombudsman.
