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JobKeeper Information for Allied Health Professionals

by | Apr 24, 2020 | COVID-19, News

JobKeeper Information for Allied Health Professionals

Introduction

VAHPA understand that many of our members are in workplaces which are not eligible for JobKeeper for a range of reasons. We are however providing this information because it’s important that all Allied Health Professionals have this information; if you don’t need it, you may know someone else working in Allied Health who does. 

JobKeeper

As you would be aware, recent Federal legislation has seen the introduction of JobKeeper, a Federal Government scheme designed to subsidise the wages of employees in businesses (with some exceptions) who have suffered a significant downturn in revenue due to COVID-19. The amount of downturn a business must have suffered to be eligible for JobKeeper depends on the type of business and the revenue of the business.   

As a result, VAHPA is starting to see employers ask employees to quickly complete the JobKeeper Employee Nomination Notice.

There is likely a good reason for this, as the JobKeeper Employee Nomination Notice states that if your employer intends to enroll to participate in the JobKeeper scheme for a fortnight beginning on 30 March 2020 or 13 April 2020, you should return the form to your employer before the end of April 2020 to ensure that your employer is eligible to receive JobKeeper payments for those fortnights.  

However before signing the form, you should be aware of the consequences of this.

Eligibility information:

  • to be an eligible part-time or full-time employee of an employer for the purposes of the JobKeeper scheme, you need to have been employed as a part-time or full-time employee of your employer on 1 March 2020; and
  • to be an eligible part-time, full-time employee or long term casual employee of an employer (more on this below) for the purposes of the JobKeeper scheme at 1 March 2020 you need to be either:
  • an Australian Citizen;
  • the holder of a permanent visa – that is you are a permanent resident of Australia; or
  • a Special Category (Subclass 444) Visa Holder. A Special Category (Subclass 444) Visa allows a New Zealand citizen to remain indefinitely in Australia to live, work or study.

Casual Workers

Only long-term casual employees of an employer are eligible employees for the purposes of the JobKeeper legislation. An employee is a long term casual employee of an employer if they were employed by that employer on a regular and systematic basis for at least 12 months on 1 March 2020. If you are a long-term casual employee of your employer, you are eligible for JobKeeper in the same way that a part-time or full-time employee is.  

Unfortunately, if you are not a long term casual employee of your employer, then you are not eligible for the JobKeeper scheme with that employer. This is one of the big flaws with the scheme. It is also another example of the problems with increased casualisation in Australian workplaces.   

However, to be clear, if you are a part-time employee with one employer, but you have a second casual job with another employer and you are not a long term casual employee of that employer, you would still be eligible for the JobKeeper scheme with the employer you work part-time for, so long as you were a part-time employee with that employer on 1 March 2020. 

Options

Firstly, even though your employer may indicate you must complete the JobKeeper Employee Nomination Notice, this is not true. You in fact have three main options open to you:

  1. Complete the JobKeeper Employee Nomination Notice, and agree to be nominated by that employer as an eligible employee of that employer for the purposes of the JobKeeper scheme;
  2. Complete the JobKeeper Employee Nomination Notice, and not agree to be nominated by that employer as an eligible employee of that employer for the purposes of the JobKeeper scheme (for example, if you have more than one employer, you may choose to agree to be nominated by a different employer as an eligible employee of that employer for the purposes of the JobKeeper scheme); or
  3. Not complete the JobKeeper Employee Nomination Notice.

Payments under JobKeeper

If you complete the JobKeeper Employee Nomination Notice, and agree to be nominated by that employer as an eligible employee of that employer for the purposes of the JobKeeper scheme, then you are entitled to the higher of the following each fortnight in which you and your employer meet the requirements for the JobKeeper payments:

  1. $1,500; or
  2. payment at your current rate of pay for the hours you worked.

Here are two examples of how this would apply to someone on a current rate of pay of $40 an hour:

  1. You perform 30 hours of work in the fortnight. You would be paid $1,500 for the fortnight, as 30 hours times $40 an hour equals $1,200 for the fortnight, meaning the $1,500 minimum applies. 
  2. You perform 40 hours of work in the fortnight. You would be entitled to receive $1,600 for the fortnight, as 40 hours times $40 an hour equals $1,600 for the fortnight, meaning the $1,500 minimum does not apply 

There are a couple of important things to note about this, however:

Firstly, payment for any hours worked is based on your current rate of pay. For example if you are required to perform work that has a lower rate of pay than your current rate of pay under a JobKeeper direction (more on this shortly), you continue to get paid at your current hourly rate. For example, if your current rate of pay is $45 an hour, but under a JobKeeper direction you are required to perform work at a lower grade that has a rate of pay of $35 an hour, you would still be entitled to be paid $45 an hour for this work.

Secondly, if you are employed by more than one employer, you are only eligible to receive the guarantee of a minimum of $1,500 from only one employer, though you can choose which employer this is. 

Thirdly, there is no requirement for your employer to subsidise your wage above the $1,500 minimum with the JobKeeper payment they receive. For example, if your normally fortnightly pay is $3,500, but due to a JobKeeper direction (again, more on this shortly) you only work half your normal ordinary hours in the fortnight and thus are only entitled to $1,750 pay for the hours you worked in that fortnight, your employer is not obliged to pay the $1,500 on top of this $1,750. They can if they choose to, but this is not a requirement of the JobKeeper scheme. 

Fourthly, the design of the JobKeeper scheme is that all eligible employees are paid the minimum of $1500 per fortnight and that the employer claims for each of these employees. Employers are not meant to pick and choose between their eligible employees, though as noted above there is no requirement for an employee to choose to participate.

Fifthly, completing the JobKeeper Employee Nomination Notice, and agreeing to be nominated by that employer as an eligible employee of that employer for the purposes of the JobKeeper scheme means your employer can use JobKeeper enabling directions and employer requests in relation to you. We will deal with this now. 

Superannuation

Employers are required to pay superannuation on any wages earned by an employee entitled to a JobKeeper payment for any work they perform, but they are not required to pay superannuation on any JobKeeper payment, though an employer has the option of choosing to pay it if they like.   For example:

  1. If an eligible part-time employee earns $1,200 for the hours they worked in a fortnight, they are entitled to the JobKeeper minimum pay of $1,500 for that fortnight. Their employer is required to pay superannuation on the $1,200 the part-time employee earned for the hours they worked in the fortnight, but are not required to pay superannuation on the $300 “top-up” they get from the JobKeeper scheme.
  2. If an eligible full-time employee earns $3,000 for the hours they worked in a fortnight, they are entitled to be paid $3,000 for these hours worked. Their employer is required to pay superannuation on this $3,000.
  3. An eligible part-time employee is stood down, and as such works no hours in a fortnight and is thus not entitled to any payment for hours worked in that fortnight. The employee is entitled to the JobKeeper minimum pay of $1,500 for that fortnight, but their employer does not have to pay superannuation on that $1,500 payment. 

Parental Leave

The JobKeeper rules provide that an individual is not an eligible employee of an employer for a fortnight for the purposes of the JobKeeper scheme if:

  1. the Federal Government paid parental leave pay is payable to the employee and the period the employee receives the Federal Government paid parental leave pay overlaps with, or includes, that fortnight; or
  2. at any time during the fortnight, the employee is paid the Federal Government dad and partner pay.

The JobKeeper legislation and rules don’t make reference to employer provided paid parental leave, or unpaid parental leave, so it would seem that if you are on employer provided paid parental leave or unpaid parental leave and you were a full-time, part-time or long-term casual employee of your employer on 1 March 2020, you are eligible for the JobKeeper payment. This seems to be confirmed by an Australian Government JobKeeper payment fact sheet for employees which states:  

“You will not be eligible for the JobKeeper Payment if you are receiving Parental Leave Pay from Services Australia. However, you will be eligible if you are on parental leave from your employer.”

Annual leave

The JobKeeper legislation provides that if you are stood down in accordance with a JobKeeper enabling direction, you continue to accrue annual leave entitlements as if the direction had not been given. That is, your accrual of annual leave is not affected by the stand down. 

If you complete the JobKeeper Employee Nomination Notice, and agree to be nominated by your employer as a JobKeeper-eligible employee of theirs, then you and your employer can also agree to you taking double the amount of annual leave at half of your rate of pay for a period. This does not affect your accrual of annual leave.

Other than the above and the request to take annual leave referred to in the newsletter on Monday, the taking and payment for annual leave does not appear to be affected by the JobKeeper legislation. 

Long service leave

The issue of long service leave is complex. Whilst some people think that someone’s entitlement to long service leave comes from Victorian Long Service Leave legislation, this is not the case for most Allied Health Professionals in Victoria.

Due to the operation of section 113 of the Fair Work Act 2009, the long service leave entitlements of most Allied Health Professionals in Victoria (likely excluding casuals) come from the long service leave provisions found in the pre-modern awards that applied to Allied Health Professionals in Victoria. Whilst enterprise agreements and contracts of employment can provide more generous long service leave provisions than the long service leave provisions found in the relevant pre-modern awards that applied to Allied Health Professionals in Victoria, they cannot provide a lesser entitlement as this is a National Employment Standards provision. 

There are a couple of important things to note about the long service leave provisions found in the relevant pre-modern awards that applied to Allied Health Professionals in Victoria:

  • they provide an entitlement to 6 months long service leave after 15 years of service, double the amount of long service leave under Victorian legislation; and
  • payment is generally based on your normal weekly hours of work calculated at your ordinary time rate of pay. For example, if at the time you take 6 months long service leave your normal weekly hours of work are 32 and your rate of pay is $48 an hour, you get paid for 32 hours at $48 an hour for each week of the six months long service leave, even if for most of your employment your normal weekly hours of work were higher or lower than 32.

The JobKeeper legislation provides that if you are stood down in accordance with a JobKeeper enabling direction, you continue to accrue long service leave entitlements as if the direction had not been given. That is your accrual of long service leave is not affected by the stand down. 

The JobKeeper legislation does not provide for your employer to direct or request you to take long service leave which you must consider and not unreasonably refuse, nor does it allow you by agreement with your employer to The JobKeeper legislation is not clear however on how payment for taking long service leave or payment of long service leave upon termination is affected by any stand down in accordance with a JobKeeper enabling direction. Whilst it may depend on your specific enterprise agreement or contract of employment, VAHPA believes that payment for taking long service leave or payment of long service leave upon termination is unaffected by any stand down in accordance with a JobKeeper enabling direction as any such payment should be based on your normal weekly hours of work calculated at your ordinary time rate of pay. Whilst the hours you work may be affected by a stand down direction, these changed hours are not your “normal weekly hours” and therefore should not affect any payment you receive for long service leave.take double the amount of long service leave at half of your rate of pay for a period (though an enterprise agreement might).

JobKeeper directions

The legislation that enacted the JobKeeper scheme also made some temporary changes to the Fair Work Act 2009, referred to as JobKeeper enabling directions. These changes enable employers in certain circumstances to:

  1. Stand down employees completely, reduce the number of days on which an employee works, reduce the number of hours an employee works on a given day, and/or reduce the number of hours worked overall;
  2. Direct an employee to perform different duties, though these must be within the employee’s skill and competence, and must be safe; and
  3. Change an employee’s work location, though the location must be suitable, any associated travel must not be unreasonable.

A JobKeeper enabling direction must be in writing and be reasonable in the circumstances. It will not apply unless the employer has given at least three days’ (unless otherwise agreed) written notice of intention and consulted, and in relation to changes to duties or location of work the employer needs to have information that leads them to believe the direction is necessary for continued employment.

The temporary changes to the Fair Work Act 2009 also allows an employer to make certain requests that an employee must consider and not unreasonably refuse, including:

  1. That an employee agree to an alteration of the days and times that they work, though under any such agreement the employee’s duties must be safe, be reasonably within the scope of the employer’s operations and  must not have the effect of reducing the employee’s number of hours of work; and
  2. That an employee take annual leave, provided that this would not leave the employee with a balance of less than 2 weeks.

However, the above JobKeeper enabling directions and employer requests only apply to those employees who have completed the JobKeeper Employee Nomination Notice, and agreed to be nominated by that employer as an eligible employee of that employer for the purposes of the JobKeeper scheme.

If an employee does not complete the JobKeeper Employee Nomination Notice, or does not agree to be nominated by that employer as an eligible employee of that employer for the purposes of the JobKeeper scheme, the employer cannot use JobKeeper enabling directions and employer requests in relation to that employee.

JobKeeper – Positives & Negatives

Completing the JobKeeper Employee Nomination Notice, and agreeing to be nominated by that employer as an eligible employee of that employer for the purposes of the JobKeeper clearly has benefits for employees if the employee and their employer meet the requirements for the JobKeeper payments, the main two being:

  1. It guarantees the employee a minimum income (before tax) of $1,500 per fortnight, regardless of whether the employee is full-time or part-time (for casuals the issue is more complex); and
  2. The money your employer receives from the Government under the JobKeeper scheme reduces the likelihood that you and your colleagues may be made redundant due to the negative consequences of COVID-19 on businesses.

However, there is also one main negative completing the JobKeeper Employee Nomination Notice, and agreeing to be nominated by that employer as an eligible employee of that employer for the purposes of the JobKeeper – it gives your employer the ability to use the JobKeeper enabling directions and employer requests in relation to you.

It may be that due to a number of factors (including rate of pay, type of work performed, and decline in the employee’s business) the chances that the pay you receive being less than $1,500 per fortnight is minimal, as is the likelihood of your employer making you redundant due to COVID-19. In such a circumstance, the negatives of the JobKeeper scheme may outweigh the benefits. 

In other circumstances, there may be significant risk of your pay falling below $1,500 per fortnight and/or you being made redundant by your employer due to COVID-19. In such a circumstance, the benefits of the JobKeeper scheme would likely outweigh the negatives.

Whether the benefits outweigh the negatives will all depend on your individual circumstances. At the end of the day the decision as to whether you complete the JobKeeper Employee Nomination Notice, and agree to be nominated by that employer as an eligible employee of that employer for the purposes of the JobKeeper is yours. VAHPA has provided the above information, based on VAHPA’s current information on the JobKeeper Scheme (more information on the scheme is regularly coming out), so you can make an informed decision.

Other information

VAHPA is currently looking at whether an employee who has completed the JobKeeper Employee Nomination Notice, and agreed to be nominated by that employer as an eligible employee of that employer for the purposes of the JobKeeper scheme, is able to withdraw this notice, and what effect this would have on any JobKeeper enabling direction and employer request. We will update you in coming days. 

If you have any queries about JobKeeper – or anything else – please email us at info@vahpa.asn.au.

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