The Federal Government’s new $130 billion wage subsidy scheme passed through parliament today, bringing much-needed clarity for hundreds of thousands of businesses and their employees.
The JobKeeper laws are characterised by a $1,500 per fortnight payment to employers, to be paid to employees on the books at 1 March, even if stood down since. Eligible businesses are those that have suffered at least 30 per cent reduction in trade.
Legislation tabled today and passed with bipartisan support outlined the key aspects of:
- Rules around hours, location and type of work
- Payments from the Australian Tax Office (ATO) to employers, and employers to employees
Changes to employment regulation are temporary adjustments to the Fair Work Act, as opposed to any changes to modern Awards by the Fair Work Commission (FWC), and represent negotiations between IR minister Christian Porter, unions and Labor regarding the operation of the scheme.
“JobKeeper will keep Australians in jobs and it will keep the businesses that employ those Australians in business, both now and into the future,” said Prime Minister Scott Morrison, addressing Parliament this morning.
New rules
Existing workplace laws continue to apply, with short-term modifications stemming from the new law – which will be automatically repealed on 28 September 2020.
The new laws operate around a new system of Notices that employers must give employees, known as JobKeeper Enabling Directions, concerning duties, location and hours of work. Employees are required to comply with valid Directions, which can be provided electronically.
Before giving a Direction the employer must consult with the employee (or representative), and to ensure this, the employee must be given at least three days written notice of intention to give a Direction. Both steps can most practicably be done by requesting the employee attend the premises (while also observing social distancing regulations).
Note: although passed in parliament, the new scheme is not strictly law until Royal Assent has been given, which is expected in a few days. Employers must wait until after this takes place to give valid Notices, or will need to give them again when the law is in force.
Directions must be reasonable, and supported by a documented factual argument showing it is the employer’s reasonable belief the Direction is necessary for the continued employment of one or more their employees. Employers should keep a copy of each Notice and Direction given.
Directions will continue until 28 September, except if withdrawn or revoked by the employer, or replaced by a new Direction.
Failure by either the employer or employee to act correctly under the new law is subject to heavy maximum penalties.
A key point of the JobKeeper proposal was the continued full employment of staff accustomed to a rate of pay greater than the $1,500 per fortnight being provided, throughout the time work for them is reduced or unavailable.
This is encompassed in the JobKeeper Stand Down Direction, regarding employees who cannot usefully be employed for their normal days or hours due to business changes attributable to the pandemic.
The Direction enables employers to vary the day(s) an employee might work, or the hours worked, until their earnings equal the JobKeeper payment. But importantly, their hourly rate of pay remains as it was.
Employees may be asked to perform different duties, subject to licensing and qualifications required and their own competency to the task, but pay must be commensurate with the duties being performed. The location might also be varied from the usual place of work, provided the location is suitable and the employee is not required to travel an unreasonable distance.
Alternate work agreements between employers and staff may cover arenas such as variations to annual leave, but all periods under JobKeeper Directions count as regular service, accruing leave, redundancy pay and other associated protections. Employees may take paid or unpaid leave during a Direction.
The JobKeeper scheme is striving to sustain the likes of the 750,000 businesses that have already applied, but hospitality specialist accountant Stephen Page says government is very serious about its proper application and suggests business owners should seek advice on their own circumstances.
“These new workplace laws are tied to the payment rules,” notes Page. “An employer who does not abide by the payment rules does not get the benefit of the workplace law changes.
“Readers should not rely on them but seek advice about their own circumstances from their individual advisers and industry bodies.”
Employers failing to pass on the payments risk fines up to $126k, and a union deal with the Morrison government brought about the condition that workers suspecting their bosses of not following all JobKeeper rules can take their case to the FWC.
The ATO will be monitoring that the JobKeeper payments (and additional wages where relevant) are made fortnightly, as mandated.
Employees not being engaged under the JobKeeper program are not subject to the revised employment flexibility.
Opposition Leader Anthony Albanese also confirmed Labor is still hoping to bring an amendment to the Bill extending support to all casual workers.
UPDATE: early on 9 April Royal Assent was given, passing the JobKeeper Bill into law.