The illegal JobKeeper questions your boss can’t ask you

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Australian employers have begun applying for the government’s JobKeeper program, which sees eligible businesses receive $1,500 a fortnight per eligible employee in order to keep businesses and staff connected. 

Businesses are eligible if they have had a reduction in revenue or turnover of at least 30 per cent, or 50 per cent if they’re a big business, while all employees are eligible for the flat-rate payments unless they’re visa workers or are casual employees who have been with their employer for less than 12 months. 

The $130 billion plan has already had more than 800,000 businesses register, but employees are now claiming dodgy bosses are attempting to rort the system. 

Any attempt to tamper with the payment is an attempt to rort the scheme, a spokesperson from the Australian Council of Trade Unions told Yahoo Finance. 

And it carries a huge fine: bosses found to have knowingly done the wrong thing are looking at an individual fine of $126,000, while corporations face fines of $630,000. 

Can my boss charge an administration fee on the JobKeeper payment?

But it appears some bosses are already looking for ways to dip into the payment, with workers sharing their stories to politicians, unions and social media. 

“My sister-in-law has been advised by her Sydney employer they’ll be withholding $100 per JobKeeper payment for ‘administration’ costs. Legal? Not Legal?” one person asked on Twitter. 

“My husband’s work has said the same!” one person responded. 

Your boss cannot claim an administration fee on the JobKeeper payment. It’s simple: if you are eligible and your employer’s business is eligible, you must receive at least $1,500 a fortnight under the JobKeeper scheme. 

As ACTU secretary Sally McManus summarised, such questions are “not legal”.

Can my boss ask me to share my JobKeeper payments? 

Federal Member for Mayo Rebekha Sharkie was contacted by an employee who was offered her job back under the JobKeeper scheme, but only if the employee gave her employer $600 of the $1,500 fortnightly payment. 

“The employee quite rightly refused and the employer was no longer willing to file the JobKeeper paperwork with the Australian Tax Office, all the while being quite unpleasant and intimidating throughout the process,” Rebekha said.

“This is unacceptable behaviour. During this time of crisis when the power imbalance between employee and employer is more marked than ever, vulnerable employees need a dedicated hotline to seek advice about their rights and their responsibilities.”

Sharkie is now calling for an ATO hotline dedicated to employees receiving the JobKeeper payments, to help struggling employees protect their rights. As it stands, there is a JobKeeper tip-off line at 1800 060 062, but no dedicated hotline. 

Your boss also can’t ask you to share your $1,500 payment with other staff, including ineligible employees like workers on visas and short-term casuals. 

Can my boss cut my shifts if I receive JobKeeper? 

One person asked the Fair Work Ombudsman this question: “My employer has cut my hourly rate from $30 a hour to $23 an hour so he only pays me the $750 per week. Is that how it is meant to be? I am still working 38 hour weeks.”

If you’re usually paid based on an award rate, the award rate needs to be observed. This means that your boss can’t cut your pay to only $1,500 a fortnight while having you work hours that are worth more than that. 

In this instance, you should be paid your normal rate of pay. If your award rate means you would be paid $2,000 over two weeks, you should receive this amount, with $1,500 of that coming from the JobKeeper payment. If your boss wants to only pay you the $1,500, they will need to reduce your hours accordingly. 

Attorney-General Christian Porter explained that the JobKeeper payment does not mean award rates are altered, only that employers have new powers to reduce employees’ hours. 

“That will not change the hourly rate that would be worked by – that would be owed to a worker – under all the relevant EAs and awards, but it could alter someone’s hours down,” Porter said.

“You can only make that alteration if the pandemic has meant that there is no work for that person to do, compared to what they would usually do, or a limitation in the work that they would do compared to what they would usually do.”

Can my boss make me do more shifts to ‘earn’ JobKeeper? 

If you usually earn less than $1,500 a fortnight, the answer is a bit different. 

Workers have been told that they will need to increase their hours to “earn” the JobKeeper payment.  

“I would be concerned about any behaviour by employers that was coercive and be very keen for that to be relayed to Fair Work and the ombudsman and others to ensure that we can take action on those cases where they are presented,’’ Prime Minister Scott Morrison said on Tuesday when presented with that scenario.

“If you’re getting paid $750, then the employer obviously asks you to do the $750 at the rate of pay of work. That’s what the act provides for. That is not an unreasonable request that someone would work the hours that they’re being paid for.” 

However, the Prime Minister’s office later said it was incorrect to say workers can be forced to do more hours to receive the payment. 

Can my boss ask me to take annual leave while I receive the JobKeeper payment?  

Yes. According to Fair Work, qualifying employers can request eligible employees take paid annual leave while receiving JobKeeper. However, there’s a rule: you don’t need to say yes if the request is unreasonable, and you also need to be able to keep a leave balance of two weeks at the end of the period. 

Can my boss ask me to do different work if I’m getting Jobkeeper? 

Yes, for a short time. Any employer in the JobKeeper scheme can ask workers to perform different jobs as long as it is reasonable and necessary. 

For this to happen, you need to receive three days’ notice in writing and any duties need to be reasonably within the scope of your business’ usual operations. You also can’t be asked to do anything outside of your skillset, or that is unsafe for you to perform. Additionally, if these new duties attract a higher rate of pay, you must be paid that. 

What can I do if my employer has done this? 

It’s one thing to know your rights and another thing to deploy them. 

If you believe that your boss is doing the wrong thing, you should call the JobKeeper tip-off line at 1800 060 062. 

Additionally, you can contact your union and the Fair Work Ombudsman or the Australian Tax Office. Here’s where you can make a tip-off claim to the ATO, and here’s what you need to know about making a claim with the Fair Work Ombudsman. 

If your boss is found to have been doing the wrong thing, they personally can be fined up to $126,000, and an entity can be made to pay up to $630,000.

“An entity that does not comply with its obligations in relation to the JobKeeper Payment is also potentially liable for a wider range of significant administrative and criminal sanctions under the tax law and general criminal law,” the ATO said in its latest fact sheet.

“These penalties will not affect entities that act honestly and with reasonable care.

“However, entities that seek to abuse the scheme, especially those that seek to engage in fraud, will face penalties commensurate with the seriousness of their conduct.”

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