See Fair Work Act 2009 s.789GD and Payment and Benefit Rules s.10
Section 789GD of Part 6-4C was repealed on 29 March 2021.
See Attachment 5 for information about the jobkeeper provisions that apply on and after 29 March 2021.
In order to be entitled to a jobkeeper payment for an eligible employee for a fortnight, an employer must first pay that employee amounts totalling at least the amount of the jobkeeper payment the employer would be entitled to receive for that fortnight (the ‘wage condition’).
Employers cannot claim the jobkeeper payment unless they have already paid the employee. Information about when payment must be made to satisfy the wage condition is available on the ATO’s website, at Paying your eligible employees – When to pay. Failure to meet the wage condition means an employer may be liable for civil penalties.
The total amount can include:
What is a ‘jobkeeper fortnight’?
Jobkeeper fortnights are defined in s.6(5) of the Payment and Benefit Rules.
While the definition is likely to be amended soon to reflect that the jobkeeper scheme will continue to operate until 28 March 2021, presently the relevant fortnights, for the purposes of the jobkeeper scheme, are:
If the employer does not comply with the wage condition, they contravene a civil remedy provision.
The wage condition does not apply to legacy employers.
A civil remedy provision is a provision of the Fair Work Act that if breached, means that the person affected can apply to a Court for an order for a financial penalty against the alleged wrong-doer, or any other order the Court considers appropriate such as an injunction.
The following example is taken from the Explanatory Memorandum to the Coronavirus Economic Response Package Omnibus (Measures No. 2) Bill 2020.
Jo is employed as a waiter in Anna’s restaurant. Anna’s restaurant has reduced operations to takeaway only because of Coronavirus restrictions. Anna qualifies for the jobkeeper scheme in relation to Jo, and gives Jo a jobkeeper enabling stand down direction not to attend work for 4 weeks, compared to her usual roster of 40 hours per week.
Anna is required to ensure Jo is paid the appropriate value of jobkeeper payments ($3000) during the four week jobkeeper enabling stand down period (section 789GD, which contains the wage condition obligation).