Now that we are a few months into JobKeeper, you may be looking at your decreasing leave balance and wonder if you will be able to have some leave for when travel restrictions ease. 

* The provisions apply from 9 April and have been been extended from 28 September 2020, to March 2021.

JobKeeper rules in the Fair Work Act says that you can be asked by your employer to take annual leave, BUT when asked, you must retain a balance of 2 weeks.  So if your leave balance is getting down towards the 2 week mark, now is the time to start a conversation with your employer about what’s next.

For more information

For more information, please contact the USU on 1300 136 604 or united@usu.org.au, or contact your USU Organiser.

Leave & the JobKeeper scheme

To support the implementation and operation of the JobKeeper scheme in Australian workplaces, temporary provisions have been added to the Fair Work Act (Fair Work Act JobKeeper provisions). These provisions apply to employers who have qualified for the JobKeeper scheme and their eligible employees. * The provisions apply from 9 April until 28 September 2020.

Agreements about using annual leave under the JobKeeper scheme

The Fair Work Act JobKeeper provisions mean that a qualifying employer can:

  • request an eligible employee to take paid annual leave
  • agree in writing with an eligible employee for them to take annual leave at half pay for twice the length of time.

To make an agreement about using annual leave under the Fair Work Act JobKeeper provisions, a qualifying employer needs to:

  • qualify for and enrol in the JobKeeper scheme
  • be entitled to JobKeeper payments for the employee to whom the agreement applies
  • be a national system employer in the Fair Work system.

Agreements under the Fair Work Act JobKeeper provisions can only be made about using annual leave, not other types of leave.

Any agreements made under the new JobKeeper provisions end on 28 September 2020*, at which time an employees’ terms and conditions will revert back to what they were prior to the implementation of JobKeeper. 

An employee’s usual terms and conditions of employment (for example under an award, enterprise agreement or employment contract) continue to apply, except to the extent they are modified by a JobKeeper enabling stand down direction or agreement made under the Fair Work Act JobKeeper provisions.

Requesting employees to take annual leave

If an employer asks their employee to take annual leave, the employee has to consider the request and the employee cannot unreasonably refuse it.

Employees who are on annual leave continue to accrue their usual leave entitlements while they’re on leave, and the period of leave counts as service.

At NO time is an employee is not required to exhaust their annual leave balance below an accumulation of 2 weeks!

Taking annual leave at half pay

Employees who make an agreement to take annual leave at half pay continue to accrue leave entitlements (such as annual and sick and carer’s leave) as if they were taking annual leave at full pay.

If an employee takes leave at half pay, redundancy pay and payment in lieu of notice of termination are also calculated as if the agreement hadn’t been made (and will be calculated on employment conditions as they were prior to the implementation of JobKeeper).

Other paid and unpaid leave options

Taking paid leave instead of minimum JobKeeper payment

If an employee is given a JobKeeper enabling stand down direction, the employee will be entitled to be paid at least the amount of the JobKeeper payment for a fortnight ($1500 before tax). This amount may be less than the employee would have received if they had worked their usual hours during that fortnight.

If an eligible employee has been given a JobKeeper enabling stand down direction to work less hours than usual (or no hours), but wants to be paid their normal pay, they can agree with their employer to use their paid leave entitlements to top up the amount they’re being paid. If that happens, for the time they’re on paid leave, they’re not on a JobKeeper enabling stand down.

An employee and their employer can agree for the employee to take leave (such as annual leave or long service leave), including taking annual leave at half-pay. In any relevant fortnight, the employee must be paid the greater of either the amount of the JobKeeper payment or their usual pay for work performed, including leave payments.

An employer can’t unreasonably refuse an employee’s request to take annual leave.

Employees subject to a JobKeeper enabling stand down direction still accrue their usual leave entitlements for the period the direction applies (as if the stand down direction hadn’t been given to them).

Sick and carer’s leave and compassionate leave

On 18 May 2020 the Federal Court of Australia handed down a decision confirming that an employee who has been stood down under the Fair Work Act can’t take paid sick and carer’s leave or compassionate leave.

The JobKeeper scheme doesn’t affect an eligible employee’s entitlement to accrue paid sick or carer’s leave under the National Employment Standards and the relevant award.

However, an employee who has been given a JobKeeper enabling stand down direction to work less or no hours isn’t entitled to use paid sick and carer’s leave or compassionate leave for the days or hours that they’ve been directed not to work.

Unpaid leave

An eligible employee on authorised unpaid leave must receive at least the amount of the JobKeeper payment from their qualifying employer for the period they’re on unpaid leave, if they meet the eligibility conditions for the JobKeeper scheme.

Unpaid pandemic leave

The Fair Work Commission has introduced 2 weeks’ unpaid pandemic leave in 99 awards.

An eligible employee taking unpaid pandemic leave must receive at least the amount of the JobKeeper payment from their qualifying employer if they meet the eligibility conditions for the JobKeeper scheme.

Employees who are employed under one of the affected awards can access up to 2 weeks’ unpaid pandemic leave (or more by agreement with their employer) if they’re prevented from working:

  • as a result of being required to self-isolate by government or medical authorities, or acting on the advice of a medical practitioner, or
  • by measures taken by government or medical authorities in response to the pandemic (for example, an enforceable government directionrestricting non-essential businesses).

The leave is available in full immediately to full-time, part-time and casual employees – you don’t have to accrue it.

Employees don’t have to use all their paid leave before accessing unpaid pandemic leave.

The leave needs to start before, but can finish after, the date when the unpaid pandemic leave provisions in the relevant award stop applying. If Schedule X doesn’t have a set end date in an award, the leave needs to start before 31 July 2020.

All eligible employees can take the 2 weeks’ leave. It is not pro-rated for employees who don’t work full-time.

Unpaid pandemic leave doesn’t affect other paid or unpaid leave entitlements and counts as service for entitlements under awards and the National Employment Standards.

Notice and evidence

An employee has to let their employer know that they’re going to take unpaid pandemic leave and the reason for taking the leave. This has to be done as soon as possible and can be after the leave has started. They should also say how long they’ll be off or expect to be off work.

An employer can ask an employee to give evidence that shows why they took the leave.

An employer can’t dismiss an employee or take any other adverse action against an employee because the employee is entitled to unpaid pandemic leave. Find out more about protections at work.

Awards with unpaid pandemic leave – new end dates

Award

Schedule X end date

Banking, Finance and Insurance Award

30 September 2020

Contract Call Centres Award

30 September 2020

Legal Services Award

30 September 2020

List of remaining Awards can be found on the Fair Work website.

Further award flexibility during coronavirus

The Commission recently varied some awards to provide flexibility during the coronavirus outbreak. Find out more:  

Long service leave

The JobKeeper scheme doesn’t impact or change an employee’s long service leave entitlements.

Paid parental leave or dad or partner pay

Employees receiving payments under the JobKeeper scheme or who lose their job because of coronavirus might be able to claim Parental Leave Pay or Dad and Partner Pay.

Employees receiving Parental Leave Pay or Dad and Partner Pay aren’t eligible for the JobKeeper scheme for the period they’re getting Parental Leave Pay or Dad or Partner Pay.

JobKeeper scheme

For more information on the scheme, including how to enrol, go to the ATO website – JobKeeper section .