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Employment lawyer Joe Murphey answers your JobKeeper questions

Your tricky questions answered.
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Employment lawyer Joe Murphey answers your JobKeeper questions

Employment lawyer Joe Murphey answers your JobKeeper questions

6 May 2020

As JobKeeper swings into action, some employers are finding the new rules a little tricky to navigate.

Can you reduce paid parental leave to JobKeeper payments only? Do you pay super if employees only receive JobKeeper payments but still work a few hours? Can you make someone on JobKeeper redundant? Can you force employees to accept a new role?

Employment lawyer Joe Murphy discusses some of the conundrums you may encounter.

Question: Our company offers 12 weeks' paid parental leave to employees. If an employee agreed to work reduced hours (three days a week) prior to taking leave, can we now pay PPL at these reduced hours?

Answer: This would depend on what was agreed – most agreements have been made in the spirit of the pandemic and were made on the basis they were temporary arrangements and usually on the basis that any accrual of entitlements and payment of leave would be on the basis of hours and entitlement pre-agreement.  If the reduction in days or hours was part of a JobKeeper direction or agreement then accrual and leave entitlements will be on the basis of the pre direction or agreement employment arrangements.

Question: If someone was absent on paid parental leave when the pandemic struck,tal leave, can you reduce the amount to JobKeeper payments?

Answer: You cannot generally ‘cut back’ anyone’s entitlements to the level of JobKeeper – a JobKeeper payment that is received for an employee on paid leave will of course go part of the way to having funded that leave (to a maximum of $1500) but is recoverable only after the employee has been paid in that particular fortnight (or longer pay period) that the payment was due and payable.

Question: Can you ask someone to work at a different location and/or in a new role? If so, do you need a new contract of employment? And should they be paid more if they are required to perform higher duties?

Answer: Yes, you can ask employees to perform different tasks or work at another location. If an employer reasonably believes it is necessary to continue the employment of one or more employees, an employer can give a JobKeeper Enabling Direction (JED) which directs an employee to:
  • perform any duties within their skill and competency (provided that the duties are safe, reasonably within the scope of the employer’s business operations and the employee is competent and licenced to perform those duties); or
  • work somewhere other than their usual place of work (including their home) (provided that the location is suitable for the employee’s duties, does not require the employee to travel an unreasonable distance and performance of the employees’ duties at the place is both safe and reasonably within the scope of the employer’s business operations).

A JED must be in writing. Employees do not have to comply with either of these types of JED if it is unreasonable in all the circumstances.

If an employee has been given a JED changing their duties of work, and the new duties would ordinarily attract a higher rate of pay, the employee must be paid that higher rate of pay. Employees must also continue to be paid any applicable penalty rate or other allowance that applies to the hours they work. There is no need for a new contract of employment.

If your business doesn’t qualify for JobKeeper, but you still intend to make changes during COVID-19, you need to abide by the usual pre-JobKeeper laws. If the proposed changes are not within the scope of a someone’s contract, you will need to reach agreement with your employee. The contract of employment will then need to be amended to accommodate the temporary variation. If agreement cannot be reached, the employee is entitled to refuse the request.

Question: Our workforce is on reduced hours (one day a week) and receiving JobKeeper payments. Do we have to pay the superannuation guarantee if their only remuneration is the fortnightly $1500 payment?

Answer: If employees are performing work then you must pay the superannuation guarantee on the hours worked. For example, if an employee receives the $1500 payment, and is working 10 hours a week, superannuation must be paid on those 10 hours.

Question: Our leadership team is working three days a week, while all other employees have been stood down on JobKeeper payments. Can members of the leadership team perform some of the duties of these employees if needed?

Answer: This approach could be problematic. In order to stand someone down, because of COVID-19 repercussions, the person must not be able to be usefully employed for their normal days or hours. If another staff member is performing some of their work, that definition is not met.

Question: We’ve decided to make someone who is on JobKeeper redundant. He was on reduced hours equivalent to three days a week. Can we calculate the redundancy payout based on him working three days a week?

Answer: No. The employee must be paid out at pre-COVID hours and rates of pay. Annual leave accrual must also be based on their previous weekly hours. Employers also need to notify the ATO if someone on JobKeeper payments has been made redundant.

There will undoubtedly be more headaches and hiccups ahead. To steer the course, Joe Murphy recommends: "keep across the rules, understand what you need to pay, and you’ll be okay”.

Joe Murphy is managing director – Australian Workplace – at Australian Business Lawyers & Advisors.

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