Expert slams boss’ JobKeeper ‘fraud’
It was supposed to be a crucial lifeline to help Australian workers weather the coronavirus storm.
But cracks in the government's $1500 a fortnight JobKeeper wage subsidy are starting to emerge months after it was introduced at the peak of the COVID-19 crisis.
While millions of employees are now accessing the subsidy, scores have come forward to claim their bosses are taking advantage of the JobKeeper scheme and ripping off workers.
News.com.au spoke with a Fair Work Ombudsman spokesman and an employment law expert to clear up some of the most common JobKeeper myths - and to help Aussie workers understand their rights when it comes to this confusing scheme.
Can an employer drastically increase your working hours but report staff are working 0 hours in order to avoid paying superannuation? And can they then cancel JobKeeper and offer to pay the outstanding super based on hours worked?
According to Maurice Blackburn principal and employment law specialist Giri Sivaraman, the answer is simple - no.
"That is fraud and the Australian Tax Office typically takes a dim view of such behaviour," he said. "Whether they cancel JobKeeper or not, they must pay superannuation on all hours you have worked."
Can an employer who is receiving JobKeeper payments for temporarily stood-down staff withhold those payments and instead force staff to take time off as long service leave?
According to the Fair Work Ombudsman website, "employers can't ask their employees to use up their annual leave or long service leave as a condition of them receiving the benefit of the JobKeeper payment".
Mr Sivaraman agreed that the request was not on.
"An employer can request that you take annual leave. If that request will not reduce you to having less than two weeks accrued, then you cannot unreasonably refuse it," he said.
"But an employer cannot force you to take long service leave under the JobKeeper amendments to the Fair Work Act 2009."
Can your boss force you to work more hours in the fortnight than you normally would, in order to make up for upcoming leave?
A Fair Work Ombudsman spokesman told news.com.au an employer can generally ask an employee to work reasonable extra hours - in excess of their ordinary hours - while the employer is receiving JobKeeper payments for the employee.
"An employee can refuse a request to work additional hours if the request is unreasonable," he said. "Employers and employees can apply to the Fair Work Commission to deal with a dispute about whether an employee's refusal to work extra hours is reasonable."
But Mr Sivaraman said full-time or part-time employees on set hours couldn't be forced to work more hours simply to make up for upcoming leave and urged workers to contact their union if necessary.
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"Your employer can direct you to work reasonable additional hours but your award or EBA might have provisions that regulate how those overtime hours are to be paid," he said.
"If you are a casual employee then your employer can increase your hours but at law you are free to say no to additional shifts."
Can staff be forced to work the total number of hours it would take to earn the $750 a week payment, even if they would ordinarily work fewer hours?
Mr Sivaraman said that could occur in some cases, but pointed out a recent case in which the full bench of the Fair Work Commission found a JobKeeper Direction which reduced the hours of some employees but increased the hours of other employees was "unfair" and replaced it.
If lockdown restrictions mean staff can't perform their regular duties, can a boss force them to do entirely different duties instead? And if a boss owns a number of different businesses, can they move staff between them?
The Fair Work Ombudsman spokesman said that under the Fair Work Act JobKeeper provisions, a qualifying employer can give an eligible employee a JobKeeper enabling direction to "perform any duties that are within their skill and competency, and to work at a different location".
But Mr Sivaraman said any JobKeeper direction must be reasonable and safe.
"Your employer must consult with you before issuing a direction that you perform different duties or work at a different location," he said.
He said your boss could only make you work at a completely different business if both you and your employer qualify for JobKeeper, if they pass on the whole JobKeeper payment to you, if it is reasonable in all circumstances, if it is safe for you to perform the new duties, if the employer has consulted with you and if the employer has a reasonable belief that the direction is "necessary to continuing the employment of one or more employees".
Can an employer ask staff to take a 20 per cent pay reduction as a result of lost revenue, ask staff to apply for the JobKeeper scheme, and then not pass on the payments?
An employer must pass on the whole JobKeeper payment to eligible employees.
"If the employer and employees are eligible for JobKeeper, and the employer is passing the whole payment onto the employees, the employer may issue a JobKeeper Direction that reduces the employee's hours or changes the duties, location and days of work," Mr Sivaraman said.
Can an employee be forced to repay JobKeeper payments to their employer which they were paid during pre-booked leave?
Again, that's a firm no, as employers must pass on the full amount.
Can a company force workers to take several days of unpaid leave each week and then pocket the JobKeeper payment, without passing it on the workers to top up their reduced income?
"No, an employer can only issue a JobKeeper Direction to reduce your hours if they have passed the whole JobKeeper payment on to you," Mr Sivaraman confirmed.
Can employers fire casual employees on JobKeeper who consistently cancel their shift at the last minute and fail to show up?
According to Mr Sivaraman, receiving JobKeeper for an employee does not prevent an employer lawfully dismissing them.
"If the failure to attend work is because of medical reasons and the casual has a medical certificate, then they might be able to seek redress under the general protections provisions of the Fair Work Act 2009," he said.
"Otherwise, a casual can seek compensation and reinstatement through the unfair dismissal laws if they have had regular and systematic employment for either 12 months if their employer is a small business, or six months if their employer is not a small business."
STILL NEED HELP?
Workers and employers with concerns can visit the Fair Work website or call the Fair Work Infoline on 13 13 94 for free advice and assistance about their rights and obligations in the workplace.
Maurice Blackburn is also offering online COVID-19 employment law consultations at a reduced fee.
Mr Sivaraman also urged workers to speak to their union if they encountered problems, and to apply to the Fair Work Commission for help if an employer was not following the JobKeeper laws in the Fair Work Act.
Originally published as Expert slams boss' JobKeeper 'fraud'