14th September, 2020
With Fair Work and the ATO working hand-in-hand to ensure available support to both businesses and employees are applied fairly, there’s a lot for employers to get right.
Being an employer at the best of times can feel like an extreme juggling act.
Now, with the pandemic rolling on and the Government working hard to try and provide new frameworks for both employer and employee support, there are even more changes than normal to stay on top of.
In this article, I take you through some of the frequently asked questions we’re receiving on a daily basis at HR Central, along with the responses we can share. Keep in mind, this information was current at the time of writing, but you’ll want to check up with the relevant government websites to check it’s still current or consult with an accredited expert directly.
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If you decide to stand down an employee because of a downturn in revenue caused by COVID and you hope to reengage them when things improve, do long service and annual leave provisions still accrue for the period they are stood down? Also are you liable for superannuation payments as well for the period they are stood down?
Yes. Entitlements accrue as they would have prior to JobKeeper
Superannuation is due only on payments for ordinary hours worked.
Can Victorian staff who are on JobKeeper and have not been stood down be forced to use up their long service leave if there’s only, say, one day a week work required?
Long service rules have not changed as a part of JobKeeper.
Many states (including Victoria) do have provisions for forcing long service leave, but there is generally a notice period prior to this taking affect.
Do we have to pay super on JobKeeper?
Not on the JobKeeper top up amounts, but yes on any payments for ordinary hours worked.
Can an employee go on maternity leave when they are on Jobkeeper?
Yes. But they can’t receive JobKeeper if they are receiving government paternity payments.
Can I ask an employee to come to my home to work for me?
Yes you can, so long as it’s a safe work environment.
If a business sells while using JobKeeper, is the new business owner still eligible to receive JobKeeper for the employees who were receiving it whilst employed by the previous owner?
This depends if you sell the business or the company.
If you sell the company, yes. If you sell the business, you would need to get advice on your situation.
What can I do about a casual who has been employed more than one year, but now suddenly not available at any shifts even though they are on JobKeeper?
Unfortunately, not a great deal from a legal point of view.
Is it optional for an employer to decide whether to keep all staff after JobKeeper finishes?
All organisations should be forecasting future resourcing requirements as early as possible based on whatever information they have. There is no need for this to align with JobKeeper dates.
Part timers normally work three days but are only working two days at the moment as not much is happening. It was my decision to allow them the day off. When JobKeeper reduces in September, can I make them take that day as annual leave so it reduces my liabilities?
It looks like the annual leave provisions may change post the first period of JobKeeper. That being the case, it doesn’t look like you will be able to, unless you come to an agreement with them to do so.
If a staff member is paid more than JobKeeper ($1,800 per fortnight) and she wants to take some of her annual leave do I have to pay it over and above the $1,800?
Annual leave needs to be taken for periods that would otherwise have been worked. As such, Annual Leave should be effectively traded for what otherwise would have been ordinary hours.
What rules are enforcing the requirement for staff to continue to accrue leave at full time rates when under JobKeeper? Do the current circumstances give employers the option to negotiate our way out of this liability, as I feel that I won’t be able to afford to pay these after JobKeeper?
A lot of the rules for the JobKeeper stand down directives are based on the existing legislation around stand downs. You cannot negotiate your way out of this liability.
My staff wished to still receive their full normal fortnightly salary when JobKeeper commenced. The additional payment is coming from their annual leave allocations or perhaps later on their accrued long service leave until that runs out. I would like reassurance of how to correctly calculate how much leave is required to be deducted per fortnight to calculate the difference between gross normal pay and JobKeeper allowance.
Annual leave needs to be taken for periods that would otherwise have been worked. As such, annual leave should be effectively traded for what otherwise would have been ordinary hours. The number of hours of leave deducted should be the same as the number of hours of leave paid.
If an employee has a second job (part time, full time or casual), how long do we keep paying them JobKeeper? My employees are still doing a few hours to tie up loose ends, and seem happy to be kept on the payroll, so they have the option to come back to their usual hours if things pick up
You must continue to pay JobKeeper to eligible employees until they de-register themselves or they are no longer working for you.
Can an employee refuse to work during JobKeeper?
Casual employees can. Those who are not casual are expected to work their contracted hours.
If I have changed duties or hours of an employee do I have to give them another contract?
No. But we would recommend providing written notice for any changes (an email for example) so you can confirm the three days’ notice was given.
Does an employee have the same entitlements if I reduce their hours?
Their existing entitlements remain, unless they are taken by the employee.
Accrual of entitlements remains as it was prior to the JobKeeper directive being given
What constitutes a redundancy?
Redundancy is a complicated process and I would recommend you get advice on your circumstances by an HR Professional.
Redundancy is a complex process that starts with two main factors.
Once this is determined, the affected employees need to be determined with a relevant, fair, and non-discriminatory process.
The organisation then needs to see how they could accommodate the affected employees perhaps in modified capacities, different roles or different departments.
Once all options are exhausted, if there is no way to retain the affected employees – they may be terminated due to a genuine redundancy.
What is the difference between standing down an employee and a redundancy?
Standing down is a short-term action that in summary requires the employee to work less or zero hours – but remains employed and continues to accrue entitlements.
Redundancy is when a role is no longer required in a business. If one or more employees who are fulfilling roles that are no longer required cannot be placed elsewhere in the business, they may be terminated due to their role being made redundant.
I don’t qualify for Jobkkeeper, but I can’t afford to keep some of my employees? Can I just move someone out of my business (as I am not actually firing them?)
The closest thing you could do to this is to agree with the employee that they will take leave without pay.
I have moved one of my employees in to a temporary new role during COVID-19 and he is now proving not to be able to do some of the tasks that I need him to do. Should I make him redundant, or stand him down?
First off, you don’t make someone redundant, you make a role redundant.
In some cases, where the person who was completing that role cannot be engaged elsewhere in the organisation (or an associated organisation) they may be terminated due to their role being made redundant.
I want to terminate an employee because she is working from home and I feel that she is not doing all the tasks that she should be. What is the process?
Why do you want to dismiss her rather than find out why she is not completing the tasks instead?
Rather than jumping straight to termination, (which is a complex process), if an employee is not performing, you need to go through a performance improvement process to give them a chance to increase their performance.
If you go through the process correctly, by offering them training and guidance throughout, they may be able to improve and perform their duties accordingly. However, after this process, if they did not improve you may be in a position to terminate due to under performance.
I have two people doing the same role and I no longer have the work to keep both of them. Which one do I make redundant?
You will need to go through a relevant, fair, and non-discriminatory process.
Do I have to tell someone that if there are changes in my business that may impact them now or within the next few months?
You are not obliged to give a certain amount of notice, but in times like these we would recommend you communicate as often as possible. Generally, the more notice you can give of any changes to come, the better.
My employees are all employed under an Enterprise Agreement. Am I still able to make them redundant?
I would get professional advice based on the agreement that’s in place. A good place to start is by seeking professional HR or legal advice.
I have a business of six employees and due to COVID-19 I am making two positions redundant. Do I have to pay a redundancy payment?
The payments that are due as a part of a redundancy are generally:
Redundancy payments are not generally applicable to small business (14 or less staff) but you will have to check the award the relevant employees are employed under as some have different rules that do not exclude small business.
The notice and redundancy amounts that are generally due are available here.
Can I put an employee on less hours and pay them less rather than make them redundant?
There are requirements like three days notice, safety and reasonableness, but generally speaking if you, as a business, are enrolled and the employee is also enrolled in JobKeeper – you can give a JobKeeper directive to change many facets of an employee’s terms of employment.
The information contained in this document is advisory in nature and may be subject to change, based on changes to JobKeeper and workplace legislation (both temporary or permanent). We recommend employers seek professional advice before making a decision about their business.