Richard Gunningham of Batch Mewing Lawyers is a member of the QMCA Construction Brains Trust and has put together the answers to a number of common questions that we have had in around HR and IR and the JobKeeper program.
Can employers pick and choose who is entitled to the JobKeeper payments?
No. The ATO guidelines state that employers who qualify and apply for JobKeeper payments should adopt a “one in, all in” approach for eligible employees.
That said, if an employee’s role is genuinely redundant such that it is not required and will not be required even after the JobKeeper scheme ends on 27 September 2020, the employer may decide to make their role redundant now.
The employer must still follow the proper procedural requirements for the redundancy (including considering redeployment opportunities and any requirements under an applicable Modern Award, enterprise agreement and employment contract) and pay redundancy pay, if applicable.
Do the JobKeeper directions override an employment contract, Modern Award or enterprise agreement?
Yes. The JobKeeper directions apply even if they are not consistent with an applicable employment contract, enterprise agreement or Modern Award.
However, JobKeeper directions are still subject to the provisions of the Fair Work Act that deal with payment of wages, unfair dismissal, general protections and the grounds on which employment must not be terminated.
Do employees accrue entitlements while on a JobKeeper stand-down?
Yes. Additionally, leave accrues as if the JobKeeper direction was not issued. This means a full-time employee who is directed to work part-time hours will still accrue leave at the full-time rate, for example. This accrued annual leave or long service leave (if applicable) must be paid to the employee if their employment subsequently ends.
What conditions do employers have to meet before issuing a JobKeeper direction?
Employers must comply with strict conditions before they issue a JobKeeper direction to ensure it is valid, manage the risk of a backpay claim and avoid a Fair Work Commission dispute.
The checklist at this link is a good place to start.
Richard Gunningham | Principal | Batch Mewing Lawyers
Want to know more or have an in-depth issue to discuss? You can contact Richard via:
T: +61 7 3059 6808 | M: +61 414 246 195 | E: richard.gunningham@batchmewing.com.au
Level 11, 215 Adelaide Street, Brisbane QLD 4000 | www.batchmewing.com.au
