Fair Work Commission

About the Fair Work Commission

The Fair Work Commission is Australia’s national workplace relations tribunal.

Australia has had a national workplace relations tribunal for more than a century and it is one of the country’s oldest key institutions. Over time it has undergone many changes in jurisdiction, name, functions and structure.

Throughout its history, the tribunal has made many decisions that have affected the lives of working Australians and their employers. The Commission recognises the importance of promoting public understanding of the role of the tribunal and of capturing and preserving its history for display and research.

The Commission is responsible for applying provisions of the Fair Work Act 2009 and the Fair Work (Registered Organisations) Act 2009. This includes powers to deal with some disputes about the jobkeeper payment scheme.

About the jobkeeper payment scheme

The Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (the Payments and Benefits Rules) are made under s.20 of the Coronavirus Economic Response Package (Payments and Benefits) Act 2020 (the Payments and Benefits Act). The Payments and Benefits Rules establish the jobkeeper payment scheme, including:

• when an employer or business is entitled to a payment
• the amount and timing of a payment, and
• other matters relevant to the administration of the payment.

Payments under the jobkeeper payment scheme are currently available in fortnightly periods between 30 March 2020 and 28 March 2021.

On 21 July 2020, the government announced that it would extend the jobkeeper payment scheme from 28 September 2020 until 28 March 2021, and it amended the Payments and Benefits Rules to that effect on 15 September 2020.^[1] There are two separate extension periods:

• Extension 1 is from 28 September 2020 to 3 January 2021
• Extension 2 is from 4 January 2021 to 28 March 2021

For each extension period, the rate of the jobkeeper payment is different.

For jobkeeper fortnights ending before 28 September 2020, the payment amount is $1,500.

From 28 September 2020, the rate of the jobkeeper payment will depend on the number of hours an eligible employee works. It will be split into two different payment rates:

• a Tier 1 rate will apply to all eligible employees whose hours of work, hours of paid leave and hours of paid absence on public holidays were 80 or more during a specified 28-day period before either 1 March 2020 or 1 July 2020
• a Tier 2 rate will apply to any other eligible employees.

The payment amount per fortnight is set out in the table below.

A business must notify the Australian Taxation Office about whether the Tier 1 or Tier 2 rate applies to eligible employees.^[2] A business must notify eligible employees in writing of which rate applies to them within 7 days of notifying the Australian Taxation Office.^[3]

To be entitled to the jobkeeper payment, the business must pay the employee the full jobkeeper payment amount before it receives the jobkeeper payment from the Australian Taxation Office.^[4]

Information is available on the Australian Taxation Office’ website about the extension of the jobkeeper payment and the 80-hour threshold for employees to be paid at the Tier 1 rate.

How does an employer qualify for the jobkeeper scheme?

Jobkeeper payments are administered by the Australian Taxation Office. Information about eligibility for jobkeeper payments is available on the business.gov.au website (see JobKeeper Payment for employers and employees).

Commission staff cannot give advice on whether an employer is eligible for the jobkeeper scheme, and the following information is provided for information only.

A business that has suffered a substantial decline in turnover can be entitled to a jobkeeper payment for each eligible employee. For all jobkeeper fortnights, the business must satisfy the original ‘decline in turnover’ test,^[5] which is based on the business’s projected GST turnover. For jobkeeper fortnights from 28 September 2020, the business must also satisfy the ‘actual decline in turnover test’, which is based on current GST turnover.^[6]

Different thresholds apply to the decline in turnover required, depending on the status of the entity, as follows:

• in most cases, at least 30%
• for larger businesses with aggregated turnover of $1 billion or more, at least 50%
• for registered charities, other than schools and some higher education providers, at least 15%.

Information is available on the Australian Taxation Office website about the Original decline in turnover test and the Actual decline in turnover test.

Some employers are not entitled to receive jobkeeper payments.^[7] These include:

• banks (or entities within consolidated groups of banks) liable to pay a levy under the Major Banks Levy Act 2017 in any quarter ending before 1 March 2020
• Australian government agencies (and entities wholly owned by them)
• local governing bodies (and entities wholly owned by them)
• sovereign entities
• companies where a liquidator or provisional liquidator has been appointed in relation to the company; and
• individuals where a trustee in bankruptcy has been appointed to the individual’s property.

The Commission cannot assist with disputes about whether an employer is eligible to receive a jobkeeper payment or whether an employee is an eligible employee for the purposes of the jobkeeper scheme.  

Information about how employers can apply for the jobkeeper scheme, and which employees are ‘eligible employees’ for the purposes of the jobkeeper scheme, is available on the Australian Taxation Office website – see JobKeeper Payment.

Employer record keeping requirements

An employer is not entitled, and is taken never to have been entitled to, a jobkeeper payment unless it complies with record keeping requirements under the Payments and Benefits Act.^[8]

When are employees eligible under the jobkeeper payments scheme?

Employers can claim the jobkeeper payment for eligible employees.^[9] Jobkeeper payments are administered by the Australian Taxation Office. Information about eligibility for jobkeeper payments is available on the ATO website (see Eligible employees).

Commission staff cannot give advice on whether an employee is an ‘eligible employee’, and the following information is provided for information only.

Eligible employees are employees who:^[10]

• are currently employed by an employer that is eligible to receive the jobkeeper payment (including employees who are stood down or re-hired)
• were employed by the employer at 1 March 2020 (for jobkeeper fortnights commencing before 3 August 2020) or at 1 July 2020 (for jobkeeper fortnights commencing on or after 3 August 2020)
• are full-time, part-time, or long-term casuals (a casual employed on a regular and systemic basis for longer than 12 months at 1 March 2020 for jobkeeper fortnights commencing before 3 August 2020 or at 1 July 2020 for jobkeeper fortnights commencing on or after 3 August 2020)
• are a permanent employee of the employer, or if a long-term casual employee, are not also a permanent employee of any other employer
• are at least 16 years of age at 1 March 2020 (for jobkeeper fortnights commencing before 3 August 2020) or at 1 July 2020 (for jobkeeper fortnights commencing on or after 3 August 2020)
• if 16 or 17 years of age at 1 March 2020 (for jobkeeper fortnights commencing before 3 August 2020) or at 1 July 2020 (for jobkeeper fortnights commencing on or after 3 August 2020), are independent and not undertaking full-time study within the meaning of the Social Security Act 1991
• are an Australian citizen, the holder of a permanent visa, or the holder of a Special Category (Subclass 444) Visa at 1 March 2020 (for jobkeeper fortnights commencing before 3 August 2020) or at 1 July 2020 (for jobkeeper fortnights commencing on or after 3 August 2020)
• were a resident for Australian tax purposes on 1 March 2020 (for jobkeeper fortnights commencing before 3 August 2020) or on 1 July 2020 (for jobkeeper fortnights commencing on or after 3 August 2020)
• are not receiving government paid parental leave, dad and partner pay, or payment under workers’ compensation law for total incapacity to work, and have given the employer a nomination notice in the approved form (and have not given any other employer a nomination notice or, if they have given another employer a nomination notice, they stopped being an employee of that employer between 1 March 2020 and 1 July 2020).

References