Paid leave

Employers and employees could previously agree that employees could take paid leave while they were receiving JobKeeper payments. Qualifying employers needed to pay their employees for any work they continued to perform and for authorised paid leave that they took.

Payment for leave

While an employee of a qualifying employer was on paid leave (such as annual leave or long service leave), they needed to be paid:

• an amount equal to the applicable JobKeeper payment, or
• their usual pay for work performed (including leave payments), if this was more than the applicable JobKeeper amount.

From 28 September 2020, there were two JobKeeper payment rates – a tier 1 (higher) rate and a tier 2 (lower) rate.

Accumulating leave

Employees who had been stood down with a JobKeeper enabling stand down direction still accumulated their usual leave entitlements for the period the direction applied (as if the direction hadn't been given to them).

Example: Accumulating leave during JobKeeper stand down

Elisha is a full-time designer in Nathan’s engineering business. Nathan was a qualifying employer and his business was entitled to JobKeeper payments for Elisha.

There was a significant reduction in demand for design work due to coronavirus. Nathan gave Elisha a JobKeeper enabling stand down direction not to attend work for a few weeks.

During this period, Elisha’s annual leave entitlements continued to accumulate based on her full-time hours, as if the JobKeeper enabling stand down direction hadn’t been given.

Annual leave

From 28 September 2020, all employers and their eligible employees needed to follow the usual rules for taking and requesting annual leave. This included those set by an award or agreement.

Sick and carer’s leave and compassionate leave

On 27 November 2020, the Full Federal Court of Australia confirmed 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 didn’t affect an employee’s entitlement to accumulate paid sick or carer’s leave under the National Employment Standards and the relevant award. Employees continued to accumulate paid sick and carer’s leave as usual.

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

Long service leave

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

Unpaid leave

An eligible employee on authorised unpaid leave needed to be paid at least the amount of the applicable JobKeeper payment (per fortnight and less tax) for the period they were on unpaid leave. This applied as long as the employee met the eligibility conditions for the JobKeeper scheme and their employer was a qualifying employer and received JobKeeper payments for the employee.

Examples of authorised unpaid leave include:

• unpaid sick or carer’s leave
• unpaid pandemic leave
• unpaid parental leave (unless the employee is receiving the Australian Government’s Parental Leave Pay or Dad and Partner Pay)
• unpaid family and domestic violence leave.

Parental leave

A qualifying employer may have been eligible to receive JobKeeper payments for an employee on unpaid parental leave, provided the employer and the employee met other criteria. However, an employee that received the Australian Government’s Parental Leave Pay or Dad and Partner Pay wasn’t eligible for the JobKeeper scheme for any JobKeeper fortnight in which they received these payments.

Agreements to take annual leave before 28 September 2020

Under the original JobKeeper provisions, qualifying employers could make agreements with eligible employees to take annual leave. This included taking annual leave at half pay.

These provisions were later repealed and stopped applying from 28 September 2020. From this date, any agreement that was made under these provisions stopped applying.

From 28 September 2020, all qualifying employers and their employees needed to follow the usual rules for taking and requesting annual leave. This included the rules set by an award or agreement.

The repealed JobKeeper provisions previously allowed a qualifying employer to:

• request that an employee take paid annual leave (as long as they keep a balance of at least 2 weeks)
• agree in writing with an employee for them to take annual leave at half pay for twice the length of time.

Agreements

To have previously made an agreement about taking annual leave under these JobKeeper provisions, an employer needed 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 JobKeeper provisions were only allowed for annual leave and not other types of leave.

Agreements made under JobKeeper provisions stopped applying from 28 September 2020. After this date, an employee’s pay and conditions went back to what they were before the agreements were made.

Requests for an employee to take annual leave

If a qualifying employer asked an employee to take annual leave under the JobKeeper provisions, the employee had to consider the request. The employee couldn’t unreasonably refuse it.

Employees that took annual leave under the JobKeeper provisions continued to accumulate their usual leave entitlements. The period of annual leave counted as service.

Taking annual leave at half pay

While an employee was on annual leave at half pay they continued to accumulate leave (such as annual and sick and carer’s leave), as if they were taking annual leave at full pay.

If an employee took leave, their employer had to pay them at least the amount of the JobKeeper payment for each week of annual leave at half pay. They weren’t allowed to be paid half the JobKeeper amount.

If an employee’s employment ended after they had taken annual leave at half pay, redundancy pay and payment in lieu of notice of termination were calculated as if they took the annual leave at full pay.

A qualifying employer couldn’t unreasonably refuse an employee’s request to take annual leave.

References

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