Tips to Help Manage JobKeeper and Staff Leave Entitlements

JobKeeper has been a highly valued Federal Government program to assist employers and employees during the COVID-19 crisis. However, applying the JobKeeper program has seen some misunderstanding and disputes arise.

The Fair Work Commission has been flooded with JobKeeper dispute resolution applications, as employers and employees in the JobKeeper scheme work through finer details and their implications. A common dispute is leave entitlements for staff on JobKeeper.

Once your employee receives JobKeeper payments, you can temporarily change some of that employee’s work conditions to help mitigate the impact of COVID-19 on your business. You can do this via a JobKeeper direction to the employee, or making an agreement with the employee.

These directions and agreements can include the treatment of annual leave. The Fair Work Ombudsman website has detailed information about these arrangements, and it’s important to get the arrangement in writing so it’s clear to both parties.

Due to the haste of JobKeeper’s introduction, many employers remain unsure about the “rules of the game”. Below are seven considerations from the Fairwork Ombudsman website to keep in mind when formulating directions and agreements for JobKeeper leave arrangements with your staff.

1. You can ask your employee to take leave, but can't direct it

2. They cannot "unreasonably refuse" your request

3. You can't request they take leave if it means their annual leave balance will fall below two weeks. That means 10 days for full-time employees; if they normally work two days a week, the minimum would be four days

4. You and your employee can agree in writing for them to take annual leave at half pay for twice the length of time

5. If you have asked your employee to reduce their hours under JobKeeper, but you want to pay them or they wish to be paid at their normal rate, you can agree with your employee to top up their pay with their leave entitlements;

6. Employees continue to accrue leave entitlements as usual while they are stood down under JobKeeper.

7. There isn't facility in JobKeeper to request an employee to take long service leave in the way that you can request they take annual leave.

There is no definition of what “unreasonably refuse” means and it can vary according to a variety of work and personal circumstances.

What one staff member deems reasonable, another may not, so it’s important for all parties to get a good understanding of each other’s situation and the organisation’s position when implementing changes.

If the arrangement you make with your staff aligns with the above, it is likely to be robust enough to hold up to scrutiny. If you can’t come to an arrangement with your employee, in some cases it can be escalated by you or your employee to a dispute resolution process via the Fair Work Commission.

Before applying to the commission, check what sort of disputes the Fair Work Commission can assist you with, as the majority of applications to the commission about JobKeeper disputes to date have been deemed outside the Commission’s jurisdiction.

If you are unsure about any aspect of JobKeeper it is best to seek advice before making a decision or providing direction. More information and assistance is available:

• The Fair Work Ombudsman and the Tax Office have published extensive information about the JobKeeper scheme, including rules and eligibility.

• Your accountant, legal representative or business adviser

• If you have a question about workers entitlements, you can call the Fair Work Ombudsman on 13 13 94 or submit an enquiry online.

• The Victorian Chamber of Commerce and Industry (VCCI) have a member advisory service on HR and IR related matters (and their membership is free at the moment).

• The Australian Industry Group have an extensive list of easy to read frequently asked questions about all aspects of the JobKeeper payment scheme, including how annual leave is to be treated.

Peter Forbes
Business & Industry Development Officer