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COVID-19 Employer Update: Q&A

COVID-19 Employer Update: Q&A

Presenters: Nigel Ward, CEO and Director and Luis Izzo, Managing Director - Sydney Workplace

Our recent webcasts have focussed on COVID-19 legislations changes, JobKeeper updates and Modern Awards amendments.  During these events we have been inundated with your questions.

To help you further, our legal experts have answered some of the common questions to provide clarity on what these recent developments mean for your business.

For the latest updates, sign up to our newsletter below or access our COVID-19 Information Hub here

Webcast Transcript

Nigel: Treasurer Josh Frydenberg said he had refined some things a few days ago. Now importantly, understand this, that the technical legal rules that give effect to these have not come out. So we'll talk about one in all in, not on this slide, but I think that's the very first question. I'll talk about it then. But the technical rules haven't been drafted and published yet as far as we're aware, but Luis, importantly, some clarifications around shelf companies and full time students.

Luis: The treasurer has announced that the way that the JobKeeper payments will operate have been changed, particularly for children, or for individuals under the age of 18. I don't know if you're 16 or 17, who might not consider yourself a child. There was a lot of concern initially that they would be casual employees in particular, age 16 and age 17, living at home, who are effectively earning a couple hundred dollars a week. All of a sudden for the employer to qualify for job keeper, they would have to bump those employees salaries or wages up to 750 a week. And all of a sudden you'd have these cashed up school students effectively running around with a lot more money than they'd ever seen in their lives. To deal with that, the treasurer has announced that for under eighteens, those types of employees will only be eligible to participate in the job keepers scheme if they are they're financially independent, they can participate in the scheme or if they're not at school, they can participate in the scheme. But generally if you've got that typical school student who is still living at home, they will no longer be able to participate in JobKeeper if they're under the age of 18. So that's the first announcement.

Luis: The second announcement is that the treasury also worked out that a lot of employers, even small business employers might have different companies. One company might be the trading company that actually collects the revenue that provides a service to the public, but they might employ their staff through a different company.

Nigel: What a union would describe as an internal labour hire company almost.

Luis: Or a shelf company that for whatever reason, whether it's tax purposes or other reasons, the employer has employed people through a separate entity. There was a huge level of concern that those entities might not qualify for JobKeeper because they aren't the entities that are suffering the revenue reduction. The treasures announced that the, the operation of JobKeeper will be extended to those types of businesses. But with both changes, as Nigel mentioned, the rules are yet to come out. So we will only see the detail in the next day or two.

Nigel: Let's get to questions - There's been some changes that just got announced in relation to the first couple of JobKeeper payments and when they are due. And can you just talk us through that, cause that's really important.

Luis:  By way of background, you may recall if you have seen any other of our webcasts, that in order to qualify for JobKeeper, one of the critical elements, and this is really important throughout the next four or five months, that the payment's going to be an operation. In order to qualify, you need to pay your employees $1,500 per fortnight in the actual fortnight that you're claiming for. You can't retrospectively pay the employees 1500 per fortnight. It's different if you're paying someone on a pay cycle that's more than the fortnight like a monthly pay cycle. There's an ability to reasonably reallocate the payments over that cycle. But generally speaking, for anyone paid weekly or fortnightly, the 1500 needs to be paid in that fortnight. Now what the ATO has realized is people haven't started paying yet, particularly for the first two fortnights. That is basically the month of April. And so what the ATO has said is for the first two fortnights only. So basically for the first four weeks in April, you can pay employees $1500 a fortnight up to the 8th of May.

Nigel: So retrospectively in a sense.

Luis: Yes, that's right. If you haven't paid by 8th of May, you cannot claim for the fortnights in April. But importantly, the other thing to bear in mind is you need to start paying. If you want to claim JobKeeper in may, you need to start paying in the may fortnights that are coming up as well. So very important to bear that in mind. But yes, there is an extended grace period. You can get your house in order and pay retrospectively by eight may.

Nigel: I think it's going to help a lot of people. Excellent.
 
QUESTION 1: “Tell me what the ‘all-in one-in’ is about?”

Nigel: Tell me about one in all in. Very simply, one in all in is this proposal, you as the employer use the business, you qualify. So you've met the 30% hurdle or if you're a charity, the 15% hurdle. If you're a massive billion dollar plus revenue, you've met the 50% Hill. So you as a you as the company qualify. The question then is, I have to send out a request to eligible employees to sign up so they get the money. The issue was simply this, can I select who I invite or do I have to invite all potentially eligible employees? The government said very clearly you can't selectively invite your employees to participate. Anybody who is eligible to participate has got to be invited. And that's the one in all in rule.

Luis: Yeah. And if you don't, once they're invited, the employee then gets the opportunity to nominate. What the treasury has been saying. And yet we, we do still need to see the rules is, if you don't nominate through the ATO portal, all of those eligible employees, you will not be able to claim JobKeeper for any employees. So that's quite a quite a significant issue that could really disentitle you to JobKeeper if you don't capture all your eligible employees. Again, we'll have to see exactly how this works in the rules. The reality is the rules we've been told they're being changed for the last two weeks. They still haven't been changed yet. That says to me that they've worked out there is a fair bit of devil in the detail and so we will need to see what they say but needs to be very careful. If you haven't climbed for everyone who's eligible, you may not be entitled to payments for anyone.

Nigel: So I'd, I'd probably see us, most people Earl on the side of generosity if particularly around the casual question and if there's any anxiety. But that's essentially one in all of them.
 
Question 2: “Can employers make employees work extra hours to make up $750, heard the PM say during a question asked and he said yes they can?”

Nigel: Look, the prime minister is both correct and potentially incorrect. Don't, don't ever quote me in front of the prime minister on that you this. You can't compel, let's say casual normally works a certain number of hours and earns $350 a week. You can't force them because of JobKeeper to now work additional hours up to the 750. But the normal process of requesting additional hours would apply. Do you want to add something Luis?

Luis: It's really going to depend on the employee as well. So if you've got part time or full time employees, you could look at the industrial instruments applicable and they will dictate whether you can give them extra hours or not. Some industrial instruments may entitle you to provide some additional hours of work. Certainly there's provisions in the fair work act about what is reasonable and unreasonable over time. At the end of the day, JobKeeper does not give you any new entitlement to up someone's hours to the equivalent of the 750. It's the existing regulatory regime that applies. So if you can up someone hours now, before JobKeeper kicked in, then you could still do it. But if you need consent, then consent would still be required.
 
Question 3: “If you have a long term casual employee that is eligible to receive JobKeeper, you offer them hours but they decline to work, are they still entitled to be paid the subsidy of $1500 p/f?”

Nigel: Say for example we've got a casual that normally works three shifts a week in my shop, but I’m now trying to get them to work five days to try and take up some slack of that JobKeeper. They're declining to work.

Luis: So this is slightly different in the sense that we're now talking about a casual who usually may have worked potentially, but now saying I don't want to work if that's the case. The starting point, as uncomfortable as this may be to hear here is, if they are eligible employees, that is the casuals that have been with you for 12 months of regular and system systematic engagements. They are eligible employees and you must claim a $1,500 dollar subsidy for them and you must pay them $1500 a fortnight in order to qualify for JobKeeper.
There's really a broader discussion that arises if you have casuals that are off saying they're not going to come into work because as an employer, if you have a casual who over a week or a fortnight or them say two or three weeks in a row, start saying, no, I'm not coming into work. At some point you're going to say, well, obviously this casual really doesn't want to work here anymore. The hours aren't working for them and you might effectively take them off your books. Now that is still something that you can do. The usual principles apply. So there's unfair dismissal laws that protect them.

Luis: And so the question's going to arise, well, really, was there a valid reason for letting the casual go? But if over a relatively consistent pattern that casual is declining work and you ultimately decide, well obviously there's no real basis to keep them on because they're not able to do the hours.  Well that could form a valid reason for dismissal and I suspect the Fair Work commission's going to be very empathetic to any employer who finds themselves in a situation where casuals are not working intentionally, not doing their usual hours that they used to, but still entitled to and claiming the $1500. If the Fair Work Commission before said, look the bar for the casual answers here, I suspect it's going to say, well a bar for the casual answers here going forward, it's going to have a very good explanation as to why you're declining work with so many people are actually struggling for work or for hours of work.

Luis: And certainly you shouldn't leap at this in the first week and I wouldn't leave it in the second. I would ensure that there is a pattern of offering over a number of weeks and refusal overal at least three or four weeks. And at that point you'd say, look, it really doesn't look like these, these working arrangements work for you anymore. You're not capable of performing work. And at that point you'd talk about a separation.
 
Question 4: “If we have already had all staff sign agreements to reduce days/hours before the JobKeeper was announced, do we need to meet AL and PL for original days/hours?”

Nigel: I'm going to assume in relation to whoever asks this question that when you say staff have already signed agreements to reduce hours or day, I'm presuming there that in a proper way, they've contractually agreed to change their hours and their days so that they now contractually, have new hours and days. And I'm assuming as well that that contractual agreement wasn't conditional. It didn't say or subject to this or subject to that. If that's the case, those would be their actual hours and days contractually. And if they're the ones that applied pre-JobKeeper, they're the ones that things are going to accrue on. Now again, I'm assuming that you've done that in a very contractually correct way.
 
Question 5: “Can you go over the stand down and leave direction provisions again - if they sign up to JobKeeper does that mean they have to use those provisions and not those in the substantive award?”

Nigel: We've got a request here to go over the stand-down and leave direction provisions. Think about this as like a smorgasbord of options. So I've got stand down provisions in the fair work act. I've got the ability to give various directions for annual leave in the fair work act. They are still applicable. I’ve then got some potential provisions in modern awards. They are still applicable. I’ve then got a world which I'm living in, which is if I'm eligible for job keeper employees signed up, I've got those new JobKeeper directions I can give. They don't, they don't kill one. Doesn't kill the other. And so they're still available. You can pick and choose.

Luis: So if we're talking about standing someone down under the JobKeeper legislation, then there's a number of requirements you need to meet. The first is that they cannot usefully be employed for the period that you're standing them down. If you're reducing their hours or if you're completely removing their hours, you need to establish they can't usefully be employed for those hours. We talked about that two weeks ago about you don't have to manufacture work for them. The work's got to be genuinely productive work. Some net gain is associated with the work. So that's the first requirement.

The next requirement is the employer needs to be eligible for job keeper and the employee needs to be entitled to JobKeeper payments. What that really means is you need to have cleaned up and satisfied yourself. That there's an ability to qualify for the scheme and that the employees are the type of eligible employees that qualify. They've given nomination forms and they've been notified to the ATO, so you need to satisfy all of those kind of qualification requirements. If we call them that, you then need to establish that you pay them the right amount of money that's owed during the week. There's three tests that that are accumulated in that you need to give them at least 1500 a fortnight. You need to ensure they're getting the right hourly wage. If they're partially stood down, you need to ensure the employees getting the hourly rate of pay that would usually be associated with that work. Now if you meet all of those requirements, then you are able to issue a direction to stand someone down and that's what everyone's going to have to look to effectively trigger in the coming.

Nigel: What we have been saying to clients generally, is we take that smorgasbord approach go, well, what are my rights under the act? What are my rights under an award or an enterprise agreement? In some of our client's cases, what are my rights under a contract of employment? And then if I am eligible for JobKeeper, what are my rights under JobKeeper and what's the best mix and match that I might apply to keep employees in my business, keep them paid, but also keep my business running. So it's that smorgasbord approach, which we'd recommend.
 
Question 6: “Will redundancies require more scrutiny during a pandemic? Could it be argued that employees jobs aren't truly redundant if in 4 months the work is available again and staff will be hired to backfill (previously) redundant roles?”

Nigel: Look probably not. I don't think so. In fact, if anything I would have thought it might've almost been the other way. There's a general acceptance at the moment in the community that most industries are impacted, most employers are impacted. So there's a general acceptance that there are going to be some job losses, however regrettable.

In relation to the second, the real issue is at the point where you make that decision to enact the redundancy. Are you in a situation where you don't require anybody to do that job? That's the test that you have to apply at that point in time. If the facts happens to be the case, well if you'd hold on for six months, it might've been a different argument. That's not going to cause any anxiety whatsoever. So it's really the test at the time. I think there's a broader question, which is a commercial question, some might even say slightly ethical question, which is if you know that you could hang on for say four or five weeks from a commercial perspective or from an ethical perspective, should you look that's a values judgment, not a legal judgment. You can make your own values judgment, but it's not all legal judgment.
 
Question 7: If an employee was on paid annual leave before the JobKeeper was announced, do they still get the payment on top of the leave already paid, or does the Employer keep this money?”

Luis: The reality is if an employee is on annual leave, the employer will be entitled to reimbursement for the monies they have paid out because all that the employer's required to do is pay 1500 a fortnight. Provided that as being paid, whether it's in wages for work or annual leave, the employer is entitled to that reimbursement, but that money doesn't go to the employee. So the employee will get their annual leave but they don't get some other payment on top. And I think there's a bit of confusion here about this. The reality is the JobKeeper is not a payment to the employee. JobKeeper is a subsidy or a reimbursement to the employer. So that this notion that you get your leave and a top up doesn't apply. Once you understand the JobKeeper is just reimbursing the employer for money's already paid.

Nigel: People will make their own commercial decision on this. And this might sound a little cynical, but if you've got a very large balance sheet provision for your annual leave, you could be directing people onto annual leave. It could be accessing that balance sheet provision, that's not necessarily cashflow helpful, but it's certainly in terms of protecting your profit and loss that that's certainly helpful. And then you're pocketing the 750 a week, 1500 that might put you in a much better financial position. So you need to think about that.
 
Question 8: “Can you please clarify JobKeeper for staff on unpaid mat leave, and also whether staff become eligible when their Govt PPL expires (eg. mid June)?”

Luis:  So short answer, and this isn't just about unpaid mat leave, there's a lot of questions that we've had about this. If someone is eligible because they're a permanent employee or they're being a casual with regular engagements for 12 months, they are eligible and once the one in all in rule kicks in, you must apply for JobKeeper for that employee to claim for everyone. What that means is if someone is on unpaid mat leave, they do get access to the JobKeeper payments. You must pay them 1500 a fortnight and what you'll see is a windfall gain to that person because they probably weren't anticipating getting paid during unpaid maternity leave, but that will apply. The only time they are not entitled to a JobKeeper payments is when they are on government paid parental leave. When they're on government paid parental leave, you cannot claim job caper payments for that employee, but obviously they're getting paid parental leave anyway.

Nigel: Yeah, that's the government's desire. So you don't double dip into the government purse.
 
Question 9: “Casual employee - if there is not going to be ongoing work on the other side, should this casual be included in JK payment (ATO states that there is an expectation of on-going work to be eligible for JK payment)?”

Nigel: I don't want to be seen to publicly disagree with the ATO, but the legislation doesn't use any reference to ongoing employment. In terms of casual employees, its 12 months service and it's regular and systematic test applies, and as long as you've also been engaged as of one March 2020, then you're across the line. It might be the case that the ATO is saying that, but it's not actually in the legislation.

Luis: That means that it's up to the employer at what point they might let the employee go or not. But, it's really a matter of view. But just remember with one in all in, if they do qualify, you need to claim for everyone that's on your books. Even if in three weeks’ time there's no work for them. And it's a different issue. The presumption here I think would be, unless they were being terminated for performance issues such as we said earlier, declining to work shifts or whatever, the presumption would be most likely just stand them down.
 
Question 10: If I bring back stood-down employees in NSW to work for the JobKeeper payment:
  1. could I stand-down again if the subsidy ceases?
  2. would super then be payable on the $750pw?”

Nigel: The first question is effectively yes. You bring them back, you start paying them JobKeeper. You might partially be standing them down on the JobKeeper when you bring them back, depending on their circumstances. Let's say the JobKeeper ends when, when's the current date?

Luis: 30 September is the current date.

Nigel:  Let's say the things sadly haven't got any better. We get to 30 September. The scheme ends. You've then got your general rights about stand down, still operating in the act. Potentially if you have an enterprise agreement or if you've got standard provisions in an employment contract, you've got those. So you could have a situation where you stood down under the act, you bring people back, you pay them JobKeeper. JobKeeper comes to an end. Things haven't got better. You have a right again under the act to stand them down. Enterprise agreement, contract employment and you stand them down again. I hope we hope we don't get to that. That will be a pretty terrible world to be in. But yes, technically you could do that.

Luis: There is a little bit of confusion about how super operates with JobKeeper payments. The reality is for every ordinary hour that someone works for you, you have to pay superannuation and that is not included in the 750 per week or 1500 a fortnight. If someone does 20 ordinary hours of work in a week, you need to pay super on those 20 ordinary hours. You can't claim the super as part of your 1500, you're paying them a fortnight. But if you have someone who's stood down and is nevertheless receiving JobKeeper payments, you do not have to pay super on those payments because they're not working ordinary hours. And if anyone has been in the super legislation, we'll know super obligations all stemmed from one key consideration. And that is are they ordinary time earnings and ordinary time earnings is what supers payable on. And you can only have an ordinary time earning, if it's an ordinary hour of work. So it's very simple rule. If they're working hours for you, super is payable on every hour work, if you're just paying them JobKeeper but they're not working, no super is payable on those job caper payments. And I'm pleased to say to the other listeners that our answers in respect of this slide apply across the country, not just in new South Wales, not withstanding they are obviously NSW centric focussed.
 
Question 11: “Any experiences of employees largely unaffected by a downturn refusing to agree to be enrolled for JobKeeper because they fear it gives the employer too much power?

Nigel: No, we haven't. We've got a lot of clients who actually aren't affected by what's going on and they're doing very well. We’ve got quite a few clients who actually aggressively trying to get hold of JobKeeper to keep themselves going. I'm not aware of the moment of an employee declining where the offer has been made. I know of situations where somebody might historically worked for maybe one or two or three employers and has picked the one they think is perhaps the one who they is think going to look after me the most, so I'll go with you. So I've seen that, but I haven't seen anybody go, I don't want to agree to this. And in doing that, I'm avoiding giving you the right to give me say JobKeeper direction. I haven't seen that at all at this stage. Most of the unions that I'm talking to are telling their members to sign the form. They  are saying, look, get the money, uh, get it across the line, help out your employer. Because at the moment some money's better in some cases than no money. So most unions are actually being very supportive at the moment if you haven't seen it.

Luis: No, I think it's more the other way around is what I've seen. I've seen employers that are hesitant to apply for JobKeeper, particularly because of concerns about the one in all the rules that they're saying, well, if I'm going to have to start making payments to all these casual employees that I've already stood down, that's a huge impost on my cash flow. We've heard of waiting periods with some of the banks have quite significant periods of time to get monies advanced to pay that out. And that's where the reluctance has been. The main reluctance for participation has been on the employer side, really arising from a reluctance to put that strain on their cash flow to pay in advance. Which is why I think that 8 May retrospective rule has come in, probably to help out with that.
 
Question 12: “A FT employee on common law contract still working, monthly gross wages $9,000 has been asked to take 15% pay cut and the company is claiming the full JobKeeper payments. Should employee receive full gross wages and is this OK?”

Nigel: They're not, they're not really related matters. If I can put it that way. I'm assuming that the full time employee again has in an entirely open and legal way consented to a pay cut. There's a lot of talk out there in the community about people taking pay cuts. You cannot make somebody take a pay cut, if somebody has willingly consented to taking a pay cut. There might've been some level of encouragement in them doing that. That's fine. But that's an entirely separate matter. Unless of course you said, look, please take the pay card of 15% however, if I get JobKeeper, then I will reverse it. Well then those would be the terms of the agreement. But assuming that the pay cut is properly validly agreed to, that's an entirely separate matter.

Luis: And the only other thing, I wonder whether what this is talking about is not a pay cut, but maybe if you're talking about a reduction in hours, if someone's asked to reduce their hours by 15% then the answer and well obviously what will come with that is a 15% reduction in your rate of pay. And the company is allowed to do that, if they're participating in JobKeeper and yes, they can still claim the full amount of JobKeeper subsidy from the government. So that's the point of the JobKeeper amendments is to enable employers to lawfully reduce someone's hours, but that's not then a pay cut. That's a reduction in hours.

Nigel: Now, the only other thing I'd probably just add in, think about this from an HR perspective, from an employee engagement perspective, if you've had employees come to the table to help rescue your business with pay cuts and then you become eligible for JobKeeper, I think you should be sitting down with them talking about what the balance of that is. And it might be, look, I can't give you back everything you cut, but I could give you back a portion of it because when you get out of this, you want those people working with you and helping you rebuild your business. So there is that engagement side of this question as well.
 
Question 13: “What advice can you provide to award free employers in understanding the new JobKeeper powers?”

Luis: In terms of the new JobKeeper amendments, there is no distinction between award covered and award free, or enterprise agreement. The JobKeeper amendments prevail over all enterprise agreements, awards and contracts of employment. So an employer can exercise their rights under the new JobKeeper fair work amendments and it will, it will override any existing provisions.
The only difference really between award free and award covered is this, if you have someone who is award covered and you change their days or their hours of work, particularly if you move their day from a Friday to a weekend or you move their hours from normal office hours to late at night or something like that, just be conscious that there might be award penalties that those new hours that you didn't previously have and they still apply. So whilst JobKeeper enables you to shift someone's hours unilaterally, if you make that, make the test, if the award now says, Oh, you going to pay a Sunday penalty. Right. Cause you've moved them to a Sunday, there's no exemption from that. So just be aware of that. But otherwise, everything that we talk about to do with JobKeeper applies equally across the board.
 
Question 14: “What options would a business have if a regular and systematic casual (receiving JobKeeper) is refusing to work additional shifts, or even their ordinary shifts?”

Luis: I think we've answered this, but the short answer is you still need to pay them JobKeeper for as long as they are an eligible employee and on your books. But what the difference is that if they continually not working their ordinary shifts, then at some point you're probably going to have a discussion about whether they're still needed for the business and you might have a bit of a look at whether their engagement should be ceased. Probably different about working additional shifts. I mean, if you've still got a need for them to work their ordinary shifts and they start refusing additional shifts, I would start to ask the question as to whether that's a valid basis to dismiss. And remember, all of these casuals will have access to unfair dismissal laws because they're regular and systematic.
 
Question 15: ““Can we request a casual to work the same hours as before when they are eligible for JobKeeper? And can I deny JobKeeper if they refuse to work the same hours?

Nigel:  So for the first part of question, the answer is absolutely.  In the relation to the second part of the question. It's not that you can refuse them JobKeeper, its you've got to just do what exactly what Luis has been saying. You've got to go through a normal investigation and disciplinary process as to why the person's refusing the shifts. I have heard a few younger casuals say, I'm going to stay home and surf and get the 750. You're just going to have to deal with that head on just like you would any other time when you're casual says, I'm not coming to work today. I'm not doing that shift. I'm not doing next week shift. It's business as usual. Unfortunately. And I'm sorry that some people might be cynical like that.
 
Question 16: “Can we put employees into negative leave balances for fairness and equity to those who still have balances that they have to reduce during the JobKeeper payments?”

Luis: The reality is if we're talking about reducing people's leave balances, I think the question is assuming that someone's exercising some right under the JobKeeper legislation or under an award to direct people to take annual leave, or under the fair work act for award free employees. So, so let's say that the employer has done that and they have directed someone to take leave. You can obviously do that for people with leave. If someone runs out of leave, yur very first question is, do I have a right to actually direct someone to take unpaid leave or to go into leave in arrears effectively? Now, the first part of the question, do I have a right to direct someone to take unpaid leave or often you don't, but that's the beauty of the job keeper amendments do allow you to do that because they allow you to reduce their hours to zero, but that doesn't involve taking down or drawing down from their leave balances. The JobKeeper direction is to simply direct someone to reduce their hours to zero, not to go into unpaid late. If you're using some other power to get someone to go into arrears, you really need to find a source for that entitlement because there is no source of entitlement at large in the fair work act that says you can force someone into a negative leave position.  

Nigel: Leave in advance as a concept is available. But in all the awards I know Luis is, it's always by agreement.

Luis: And in the award safety net, it contemplates it. Now employers have been doing it for a long time before it came into the award safety net, but it was always done by agreement. Generally speaking, there is no provision in either the act, the awards or contracts that we tend to see that enables you to actually direct someone to go into arrears and indeed it's probably inconsistent with the NES. So if you're going to do that, you need agreement.

Nigel: To sum, if you've got people who are taking leave to help you out, you've got people you want to take leave in advance to also balance that out. You can make that request, but you can't put those people in balance or you can't direct them or force them to do that. You're going to have to get their agreement to do that. They might be willing to do it, which is great. They might not be, if they're not willing to do it, you can't force them.
 
Question 17: “What does termination entail for a casual? If a business closes and there is no work for casuals are they terminated at that point? Such that employers would need to elect to include them in JobKeeper.”

Luis: The first part of the question is very interesting. What does termination entail? And this is, it's actually a fascinating question entirely separate from the whole over COVID-19 dilemma because the fair work act talks about the fact that a regular and systematic casual, who's been working for you for at least six months with an ongoing expectation of ongoing shifts on a regular and systematic basis has access to unfair dismissal laws. But by the same token or equally at the same time, what we're told by the law generally, and this has been reinforced by the recent federal court work practices, is that the casual employees employment actually starts and finishes at the end of each engagement.
And the question then becomes, well, if that's the case, how do we know when, when work starts to tail off, how do we know when that work has sufficiently tiled off that there's actually been a separation of the relationship? For some casuals, they might just softly, slowly just disappear into the horizon and one day you wake up and think, Oh, we haven't seen them for three or four or five months, I suppose they're not really employed anymore and sometimes they can just kind of slowly vanish into the air. The fair work act doesn't really contemplate that because they have unfair dismissal provisions, so at some point there must be such a reduction in their hours that it's what the fair work act considers to be a termination and what I would use as an appropriate yardstick for that is, if you have an employee who has a regular and systematic load, they might work 15 hours a week. Yes, sometimes it's 13 sometimes, it's 18 but they have a general load that they work week in, week out. If you unilaterally reduce that effectively to zero or to something close to zero, one or two hours, that's when you start to get into what we call a constructive dismissal under the fair work act provisions. And the casual can say, well actually I think you've actually ended the relationship, but there's no one answer to that question.
 
Nigel: And what I'm practically seeing at the moment, for example I'm thinking about the employer my son works for. He's a university student and his employers by said, look we can't keep all the coffee shops open, can't keep all of you working at the moment but you're all on the books. I'll keep you on the books. As soon as we get going again, we'll work out who's going to get what shifts. So in that sense it's very clear that nobody's employment ended as such. That'd be very different to simply my son being said, Mike, look, I'm taking everybody off the books. I’ll worry about who I employ when I come back. That's the sort of what I called common and garden language that a lot of employers typically say the coffee shop owner is going to use to de-mark what we might describe as putting you on hold versus actually saying our relationships come to an end.

Luis: I agree entirely and I think the real challenges for those of you who are out there, and I know there's a lot that have casuals working 38 hours a week, week in, week out for a number of years, do not think you can just reduce them to zero and say, well no, that's not a termination. You're still on the board. At some point, if there is a significant reduction, you're going to have a problem from an unfair dismissal point of view and that's why you might be looking to use your JobKeeper directions. That's the very point of JobKeeper is to enable you to do these things lawfully without being exposed to dismissal claims. So if you're in that book or in that basket, what I'd recommend is get them validly signed up to JobKeeper and then you can lawfully reduce their hours to zero. And there will be no question about when this is gone.
 
Question 18: “We have an employee we have asked to come back to work which is in a warehouse so can not be from home.  She is scared to be out in public due to the Virus, how do we best manage this?”

Luis: Your first and foremost question is work safely able to be performed? Has the employer done all it can reasonably do to minimize risks to health and safety in the workplace? That's step one. Let's say you've done that and you've done all you can practicably speaking minimize all the risks that are identifiable at that point. You have met your obligations on the health and safety laws, the employee has an obligation to present for work. Then the question arises is there a valid reason why the employee is unable to attend for work? If the employee is unfit to attend for work because of some medical condition affecting them, that means that the risk to them is so manifest that they're simply not able to work safely or to work safely. Then they may be unwell or unfit to attend due to a personal illness or injury effecting them. Your classic entitlement at that point is sick leave/personal leave. If however, they are an employee that's in no different circumstance to most other employees and they do not want to present for work because of fears or anxieties they hold, they might not be unfit for work.

Luis: And so then you have a scenario where the employee is simply not wanting to turn up. Now, the first thing you might do is see whether you can accommodate that. So you might say, well look, why don't you use your annual leave? Or do you want to take a period of unpaid leave? If you are unwilling to accommodate that, then you get into a more robust discussion about, well, can they do the requirements of their role? Is this a disciplinary issue? You're going to have to step very softly and carefully about around this issue because obviously we're in a very unique scenario, but if it can't be accommodated through leave, they're no different category to anyone else. You've done all you can to minimize risks to health and safety. You're getting to the point that you might have a discussion about whether they can do the role or whether they need to be warned about absenteeism, so on and so forth.

Nigel: And look, you'd really have to look at the facts of the case. We'd have to be very careful how we work our way through the facts. So that's a great general answer, but it'll be very fact specific. So just be very conscious of that.
 
Question: “How do we treat staff who are choosing not to attend work (ie they have not been stood down), but are otherwise eligible for the JobKeeper payment?” -
Luis: I think we have already answered this in the previous question.
 
Question 19: “What capacity do we have to direct staff to work either above their normal hours if required, or preventing people from taking excessive time off and still receiving JobKeeper guaranteed payment?”

Luis: With the first question, direct staff to work either above their normal hours if required. I think we did answer that early on.

Nigel: And that you've got to find some, some power that says you have a right to be able to direct that, that that the might be for some part time employees under some modern awards that might be a right to direct at some level of additional hours. I've seen some enterprise agreements to say I can direct some additional hours. I've seen employment contracts for non-award people say, particularly for part time employees, I could direct some additional hours. You've got reasonable requests in terms of overtime, but I suspect this isn't about overtime. I suspect this is about what might otherwise be described as ordinary hours of work. So you've, I think we've answered that already. Um, and, and the second one as well, I think taking excessive time off. Again, if it's the casuals we've talked about that that concern, you might, you might keep offering shifts for a while. If it's until such point as it becomes apparent, they're just not able to do your hours anymore. If it's a permanent staff member, it's different. You're going to be looking into why they taking time off, either their illness or injury issues. If their absenteeism is not justifiable, if there is no reasonable basis, we start getting into the usual discussions around that. All the normal rules would apply. Are they on paid personal leave? What's the period of absence? What's the reason? So again, we'd have to look at the facts, but all the normal rules would apply. JobKeeper doesn't change that.
 
Question 20: “Are employers that are not currently eligible for JK payments still enabled to utilise the C19 pandemic special provisions that are specific to each Award?  ie. adjusting hours, directing leave due to C19 circumstances. Some employees think they can not turn up to work and still receive JobKeeper. Presumably we are still entitled to performance manage (and potentially terminate?)”

Nigel: Absolutely. Yes. The answer's yes. Some categorically you can use what's in the award, you can use what's in the fair work act. Again, think about the small sport. I might not be able to use those JobKeeper directions if I don't have JobKeeper, but I've got the modern awards stuff and I've got the fair work act stuff.
 
Question 21: “Can an employee change which employer pays them JobKeeper throughout the term of the program?”
 
Nigel: I suspect this is going to be pretty rare because let me just start with two potential scenarios. Scenario one is, which I think would be strange, but I'm currently employed by you and I get a better job offer tomorrow, bizarrely. And in that situation, I couldn't get job keeper for you because you were working with me on the 1st of March. Yeah, if you're thinking about jumping ship on that basis, think very carefully. So in that sense the answer would be no. If you're on JobKeeper with the 1st of March employer, it's not with a new employer. It might be a different question because it might be the question about say the pub and I've got three places I work. What happens if I select first of all to be with employer one? Let's say I fall out with employer one. Can I then go to employ two or three?

Luis: I think the reality is that the primary threshold test is to be employed on one March. So you will have to that box and employees do get the opportunity to nominate whether they want to participate. And I've not seen any timeframe on nominating. There's no, you must in 14 days or anything like that.

Nigel: There's nothing I've seen in the statute that says once signed up your, that's it. You're done. That's right. I suspect you could do it, but I think the answer is if that's a very real issue, give us a call.
 
Question 22: “Can an employee volunteer to stand down so they can receive the JobKeeper payment without using any personal leave, annual leave or long service leave?”

Luis: You don't as such volunteer to stand down. You could agree to take leave without pay and that's possibly what the question is asking. For example, Luis could agree to take a month's leave of our pay and during that period I'm going to pay Luis that the JobKeeper payment.
The alternative could be I get the JobKeeper payment and then I give you a stand down direction and then you're stood down during that period and I pay you the JobKeeper payment and all the value of it (1500).

Luis: And really most people who are seeing their hours reduced in JobKeeper context will probably be a direction by the employer to reduce hours or to go on leave or some other combination of the two. So it's unusual that the employee would do that but at the end of the day, it really would need to be by agreement if the employer has still got work, then you can still be required to work.

Nigel: I think that's the other thing this is really important about this is that if you're getting JobKeeper, to the extent that you can use your people, I'd really encourage you to use your people and get any work that could productively be done. I mean if, if the answer is, look, I've got that project, I want finished off for next month. My alternatives are to bring Luis in to get him to help me on it or let him sit at home and get his 750, well see if you can bring him in and get him to help you with it. Subject to all the things we've talked about today in terms of getting him to come to work.
 
Question 23: “What happens if a casual hasn't worked with any regularity over the past 12 months ie.1 day, then 2 months later 3 days etc?”

Luis: Well, the short answer is they're not going to qualify.

Nigel: To qualify, you’ve got to be working for 12 months. You've got to be regular and systematic. If you are over 12 months, but you are irregular and not systematic, then you're not qualified.
 
Question 24: If registered for JobKeeper, but with no annual leave or sick leave balance, employee calls in sick?  Still required to pay $1,500pf?”

Luis: Short answer is yes. I'm assuming they're an eligible employee. If they run out of leave but are sick, you still have an obligation to pay them 1500 a fortnight. You're going to come back to some considerations though. If this happens for a day or a few days, that's probably not an issue. If you have an employee who calls in sick for a month because of some condition, you technically have an obligation to pay them JobKeeper and you still need to be very careful about trying to discipline or otherwise address that matter because you have discrimination laws that apply. You have adverse action laws that apply. You have protections on terminating people for temporary absences or illnesses. So the very fact that someone's sick, even if they don't have a leave balance, they can still say, well, I'm not fit to come in. And there's a lot of protections in place in both fair work and discrimination legislation that prevent you from simply just acting in a disciplinary sense.
 
Question 25: “Well, I'm stood down. Can I claim sick leave?’

Nigel: Well that's a different question. There's two types of stand down that we're talking about. There’s Fair Work act stand down, enterprise agreement stand down, contract stand down and then there’s JobKeeper.

Luis: And so with the stand down provisions of the fair work act, this is an issue that is hotly indisputable in the federal court right now. Justice flicks reserved on it QANTAS. There are arguments both ways as to whether or not you can apply for and take sick leave while stood down and were awaiting a decision on that. The short answer and that is there'll be definitive guidance from the federal court very soon. The unions are saying, you can, Qantas is saying you can't, we've actually provided employers with advice on this entities quite line ball. The second type of scenario is if they're on a JobKeeper stand down. It's a slightly different scenario because on those circumstances and employee can actually reduce someone's ordinary hours down to zero. So if you're reducing an employee's hours down effectively to zero, the notion that someone could then apply for sick leave is probably less available. But again, I'd be waiting the outcome of the federal court decision, which we understand to be not far away.
 
Question 26: “What if the employee's eligible but doesn't consent to JobKeeper? How does one in all in work?”

Nigel: Your obligation is to ensure that you provide the opportunity to the employee. The legislation doesn't even use words like reasonable or whatever, just provide, if the employee actively declined, says, I don't want job keeper, that's their decision. If they ultimately don't fill it out, that's their problem. Obviously most employers would probably be encouraging their people to fill it out. Your obligation is to provide the form, the opportunity to them.  And they only become entitled to the payment once they give it back to you. So if they haven't given it back, you don't claim JobKeeper for them. That's only the obligation in terms of one in all in is the provision, the invitation as it were to participate.
 
Question 27: “Uncontactable staff members - we have work for them to complete but they won’t respond to phone/email/text?”

Luis: It’s the same the answers we've given before. The only addition that I would add is if they are completely uncontactable and you've exhausted all reasonable efforts to try and find out what happened to them, at some point the very often misapplied abandoned notion of abandonment employment might come in.  You might be talking about whether they've actually abandoned their employment or you might be talking about disciplinary processes. The usual considerations that would imply in that circumstance before JobKeeper apply now to that type of scenario.

Nigel: So phone, email, text, if they're a long standing employee, registered letter to their address. And if you really, really long standing employee probably go knock on their door

Luis: And you should have alternative contact details as well. Do you know where their family are? Things like that. But the biggest issue with abandonment of employment is that for some reason employers think that the moment three days have elapsed, you can just say someone has abandoned and terminate on that basis. It is not that straightforward. It is not that easy. You need to make considerable goals.

Nigel: To be fair, 60 years ago that was the law.

Luis: It hasn't been for a long time and you just need to be very careful about that before you take the ultimate step. And the reason for that is if you are trigger happy and premature, you might find an unfair dismissal claim coming to your doorstep.
 
Question 28: “Is an employee who is not unwell but self-isolating, based on government guidelines or medical advice, eligible for personal leave?  If they were asked instead by their employer to not come to work, what type of payment and leave should apply?

Nigel: In terms of accessing personally, you actually need to be ill or injured. Self-isolation doesn't get you over the line to claim personal leave. Just be mindful if you're covered by a modern award, there is an ability to access unpaid special sort of self-isolation, pandemic leave. If you're in the health sector, broadly speaking, there's a claim on at the moment before the fair work commission for additional paid leave for self isolation. Nurses, doctors, um, home care workers, aged care workers, a number of others. That'll probably take 10, 11, 12 weeks to sort itself out.

Luis: Second part of the question. If you have decided to tell the employee not to come to work, that's a different matter. Two questions that were, would arise. The first is do you have reasonable grounds that are objectively provable to show they're not fit for work? So for instance, if you know they've tested positive or if there is some circumstance you can point to the demonstrates quite clearly they're unfit then and you'd want medical evidence of some kind of support this, then you could direct them to stay away on the basis they're unfit and direct them to take personal leave. Absent that circumstance arriving arising and you are directing them to stay away and you have no clear evidence that they are unfit, you would need to pay them their wages.
 
Question 29: “If an employee refuses a direction to take annual leave where they will have a balance of 2 weeks, will this then be a disciplinary situation if we can't come to an agreement if they flatly refuse?”

Luis: If the direction's been issued validly, under a modern award or the fair work act, it actually does need to be complied with. And if they refuse, there's really two courses of action open to an employer. The first, ordinarily we would see is the employer will simply implement the direction and they will say, well you're on leave. I don't really need you to come in. Employee probably won't come in. And at that point the employer would simply just start deducting from the leave accrual and that will be permitted because it will be either be permitted by the modern award or it will be permitted by the fair work act or the job caper amendments.

Luis: The other scenario which is probably unlikely to arise and be more curious and odd, is the employee doesn't agree and still just starts fronting up to work. Well at that point they really misbehaving, they've been issued a direction provided it's lawfully. You should you be starting a disciplinary discussion.
 
Question 30: “Are employees on unpaid parental leave entitled to the JobKeeper payment?  If you don't have an employee nominated and being paid in April as they are on unpaid stand down, can you start paying them and claim for May onwards?

Luis: I think we've dealt with the first part of the question some detail and the second part is yes. If someone isn't eligible initially, they can become eligible later on. They're not entitled to job caper payments initially but later become so entitled. As long as you've qualified for the scheme, it does appear that they can receive it.

Nigel: And I suspect the truth is as long as you were employed as of 1 March, it's quite possible that an employer might be faster or slow in actually accessing JobKeeper. Some people might not get it so nice and people might not get it to June. It might be that the employer doesn't meet the 30% hurdle till June and then only applies from June.
 
Question 31: How to handle staff refusing a reasonable, lawful, safe, related to the business JobKeeper enabling direction? (ie: they just don't want to work)?”

Nigel: I think we've answered this many in ways, but also just remember it relates to the JobKeeper directions, formal ones. The JobKeeper legislation expressly requires compliance with a job keeper direction. So in terms of adopting what we might describe as normal performance management to this, it's actually bolstered by the fact there's an express obligation to comply with a JobKeeper direction. But it will be the normal performance management process.
 
Question 32: “If we have reduced eligible staff hours from normal 38 to 30 hours per week (still above $1,500 per fortnight)... do we need to go back to 38 hours pay just because we're getting the JobKeeper payment?”

Luis: Nigel adds to the question of this nature earlier in the webcast. If you've reduced their hours lawfully and legitimately and that agreement was for a period or is indefinite, well then you can rely on that variation to say, well, no, now your hours are 30 per week and the arrival of job capable would not change that. If your arrangement isn't so legitimate, then you probably want to relook at it and redo it properly under the job,

Nigel: As we said before, in terms of employee engagement and people helping you out. If all of a sudden you've got the benefit JobKeeper. It wouldn't hurt to sit down and say, look, let's review where we are now. Can I'll actually give you a little bit more back rather than thanks for everything you've given me, I'm now looking a lot better because the JobKeeper payment. It has that HR element to it as well. Well that's all we have time for today, thank you for joining us and stay well. 
 

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