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The majority of the jobkeeper provisions of the Fair Work Act 2009 were repealed on 29 March 2021. The Fair Work Commission has limited power to deal with jobkeeper disputes on or after this date.
Attachment 5 sets out the jobkeeper provisions of the Fair Work Act that continue to apply on and after 29 March 2021.
Wage condition
Overview
See Fair Work Act 2009 s.789GD and Payment and Benefit Rules s.10
Section 789GD of Part 6-4C was repealed on 29 March 2021.
See Attachment 5 for information about the jobkeeper provisions that apply on and after 29 March 2021.
In order to be entitled to a jobkeeper payment for an eligible employee for a fortnight, an employer must first pay that employee amounts totalling at least the amount of the jobkeeper payment the employer would be entitled to receive for that fortnight (the ‘wage condition’).
Employers cannot claim the jobkeeper payment unless they have already paid the employee. Information about when payment must be made to satisfy the wage condition is available on the ATO’s website, at Paying your eligible employees – When to pay. Failure to meet the wage condition means an employer may be liable for civil penalties.
The total amount can include:
- salary, wages, commission, bonus or allowances paid to the employee
- tax withheld
- salary sacrifice superannuation contributions, and
- agreed deductions.[1]
What is a ‘jobkeeper fortnight’?
Jobkeeper fortnights are defined in s.6(5) of the Payment and Benefit Rules.
While the definition is likely to be amended soon to reflect that the jobkeeper scheme will continue to operate until 28 March 2021, presently the relevant fortnights, for the purposes of the jobkeeper scheme, are:
- Monday 30 March to Sunday 12 April 2020
- Monday 13 April to Sunday 26 April 2020
- Monday 27 April to Sunday 10 May 2020
- Monday 11 May to Sunday 24 May 2020
- Monday 25 May to Sunday 7 June 2020
- Monday 8 June to Sunday 21 June 2020
- Monday 22 June to Sunday 5 July 2020
- Monday 6 July to Sunday 19 July 2020
- Monday 20 July to Sunday 2 August 2020
- Monday 3 August to Sunday 16 August 2020
- Monday 17 August to Sunday 30 August 2020
- Monday 31 August to Sunday 13 September 2020
- Monday 14 September to Sunday 27 September 2020
- Monday 28 September to Sunday 11 October 2020
- Monday 12 October to Sunday 25 October 2020
- Monday 26 October to Sunday 8 November 2020
- Monday 9 November to Sunday 22 November 2020
- Monday 23 November to Sunday 6 December 2020
- Monday 7 December to Sunday 20 December 2020
- Monday 21 December to Sunday 3 January 2021
- Monday 4 January to Sunday 17 January 2021
- Monday 18 January to Sunday 31 January 2021
- Monday 1 February to Sunday 14 February 2021
- Monday 15 February to Sunday 28 February 2021
- Monday 1 March to Sunday 14 March 2021
- Monday 15 March to Sunday 28 March 2021
If the employer does not comply with the wage condition, they contravene a civil remedy provision.
The wage condition does not apply to legacy employers.
A civil remedy provision is a provision of the Fair Work Act that if breached, means that the person affected can apply to a Court for an order for a financial penalty against the alleged wrong-doer, or any other order the Court considers appropriate such as an injunction.
Example
The following example is taken from the Explanatory Memorandum to the Coronavirus Economic Response Package Omnibus (Measures No. 2) Bill 2020.
Jo is employed as a waiter in Anna’s restaurant. Anna’s restaurant has reduced operations to takeaway only because of Coronavirus restrictions. Anna qualifies for the jobkeeper scheme in relation to Jo, and gives Jo a jobkeeper enabling stand down direction not to attend work for 4 weeks, compared to her usual roster of 40 hours per week.
Anna is required to ensure Jo is paid the appropriate value of jobkeeper payments ($3000) during the four week jobkeeper enabling stand down period (section 789GD, which contains the wage condition obligation).
Reference
Updated time
Last updated
29 March 2021
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