Fair Work Commission

To be eligible for the JobKeeper scheme, a casual employee must have been employed on a regular and systematic basis for at least 12 months as of 1 March 2020 or 1 July 2020. There are also other eligibility requirements that apply to all employees.

You can find out more about claiming JobKeeper payments for eligible long-term casual employees who work on a ‘regular and systematic’ basis on the Australian Taxation Office website.

There is no definition of ‘regular and systematic’ in the JobKeeper rules. What is regular and systematic depends on the circumstances of a particular person’s employment.

The Australian Taxation Office cannot force an employer to nominate a particular employee.

The Fair Work Commission cannot help with disputes about casual eligibility for JobKeeper payments.

The Australian Taxation Office website provides that employers choosing to participate in the JobKeeper scheme should nominate all their eligible employees, and not only some. However, it isn’t compulsory for employers to take part in the JobKeeper scheme.

If an employee wants to be nominated for the JobKeeper scheme, they should talk to their employer about it.

The Fair Work Commission cannot deal with disputes about nomination for JobKeeper payments.

There is guidance for employers on the Australian Taxation Office website about who they can nominate for JobKeeper payments. It is up to employers to nominate eligible employees for the scheme. However, employers should nominate all their eligible employees, and not only some.

The Australian Taxation Office cannot force an employer to nominate a particular employee.

The Fair Work Commission cannot deal with disputes about whether an employee is eligible for JobKeeper payments.

If an employee is not nominated for JobKeeper payments, they might be eligible for other support payments such as JobSeeker payments.

Find out more about the JobSeeker payments on the Services Australia website.

Once an employer is entitled to receive JobKeeper payments for an employee, they must pay the employee each fortnight the higher of:

• the JobKeeper payment amount that they are claiming for the employee, or
• the employee’s usual pay for work performed (including any paid leave or public holiday pay).

There is detailed information on the Fair Work Ombudsman website about how pay interacts with the JobKeeper payments. The Fair Work Ombudsman can help employers make sure they get pay right and help employees work out if they are getting paid correctly under the JobKeeper scheme.

The Fair Work Commission has limited power to help with disputes about whether an employee meets the wage condition if an employee lodges a JobKeeper dispute. However, the Fair Work Commission does not have the power to make orders about JobKeeper payments.

If an employee would earn more than the JobKeeper payment for the hours they actually worked, then the employer must pay them for the hours they actually worked (including any overtime and penalty rates that apply).

The Fair Work Ombudsman can help work out how much employees should be paid when their employers are claiming JobKeeper payments for them. You can phone them on 13 13 94 or visit the Fair Work Ombudsman's website.

An employer must decide which payment tier applies to an employee before claiming the JobKeeper wage subsidy for that employee. There is more information on the Australian Taxation Office website about payment tiers, including how to apply alternative tests if pre-March or pre-July reference periods are not appropriate.

If an employer and employee disagree about which payment tier applies to an employee, they should look at the guidance on the Australian Taxation Office website and consider whether an alternative reference period for determining the payment tier should apply.

The Fair Work Commission cannot deal with disputes about which payment tier applies to an employee.

Under the temporary JobKeeper provisions of the Fair Work Act 2009, an employer can give a direction or request an agreement that changes an employee’s hours of work.

Find out more about JobKeeper directions and agreements for qualifying employers and legacy employers.

There is detailed information on the Fair Work Ombudsman website about these provisions for qualifying and legacy employers:

Qualifying employers

• JobKeeper enabling stand down directions
• Changing days or times of work under the JobKeeper scheme

Legacy employers

• JobKeeper enabling directions and agreements for legacy employers

Under the JobKeeper provisions of the Fair Work Act 2009, an employer and an employee can agree for an employee to work more hours.

If an employer asks an employee to work more hours or to change their usual days or times of work, the employee must consider the request and cannot unreasonably refuse the request.

Qualifying employers and their employees can find out more about JobKeeper agreements to work more hours on the Fair Work Ombudsman website.

Legacy employers and their employees can check what applies at JobKeeper enabling directions and agreements for legacy employers.

An employer or employee can lodge a dispute with the Fair Work Commission about a JobKeeper agreement to change an employee’s usual days or times of work.

If an employer gives an employee a JobKeeper direction to reduce their hours (a JobKeeper stand down direction), the direction will not apply if it is unreasonable.

A direction might be unreasonable because of an employee’s caring responsibilities or if an employee is being treated unfairly compared to other employees.

If an employer requests that an employee agree to change their hours, the employee must consider and must not unreasonably refuse the request. What is reasonable depends on the circumstances of each case.

An employer or employee can lodge a dispute with the Fair Work Commission about JobKeeper directions or agreements about changes to an employee’s hours.

Qualifying employers and their employees can learn more about these directions on the Fair Work Ombudsman website. There is also information on agreements to change to an employee’s days and times of work.

Legacy employers and their employees can find the rules that apply at JobKeeper enabling directions and agreements for legacy employers on the Fair Work Ombudsman website.

There is also detailed information in the JobKeeper disputes benchbook.

Under the temporary JobKeeper provisions of the Fair Work Act 2009, an employer can give a direction to change an employee’s usual duties.

Find out more about directions to perform different duties for qualifying employers and legacy employers.

There is detailed information on the Fair Work Ombudsman website about these provisions for qualifying and legacy employers.

Qualifying employers

• Changing duties or work location under the JobKeeper scheme

Legacy employers

• JobKeeper enabling directions and agreements for legacy employers

Under the temporary JobKeeper provisions of the Fair Work Act 2009, an employer can give a direction to change an employee’s usual location of work (including to work from home).

Find out more about directions to work at a different location for qualifying employers and legacy employers.

There is detailed information on the Fair Work Ombudsman website about these provisions for qualifying and legacy employers:

Qualifying employers

• Changing duties or work location under the JobKeeper scheme

Legacy employers

• JobKeeper enabling directions and agreements for legacy employers

After 28 September 2020, employers cannot make JobKeeper agreements with employees to take annual leave. JobKeeper agreements to take annual leave made before 28 September 2020 also cease to have effect after that date.

The Fair Work Ombudsman can give you advice about leave entitlements under national workplace laws.

The Fair Work Commission can deal with disputes about annual leave under the dispute resolution clause of an enterprise agreement or modern award.

If a JobKeeper enabling stand down direction has been given to an employee, the employee accrues annual leave as if the direction had not been given.

You can find out more about the rules for leave under JobKeeper for qualifying employers and employees, and legacy employers and employees, on the Fair Work Ombudsman website.