ACAPMA Daily COVID-19 Roundup | as at 17:00 27/4/2020

Daily COVID-19 Roundup  |  as at 17:00   27/04/2020   (last Roundup 24/04/2020)

This message has been sent to the Principle for each business as per the ACAPMA Member Register.  Please feel free to forward through your business as required.

Follow ACAPMA on LinkedIn for articles and resources as they are released, so you don’t have to wait until COB to get your information;  https://au.linkedin.com/company/australasian-convenience-and-petroleum-marketers-association-acapma-

  Whats New - Changes and Items of Interest

• The JobKeeper Rules changed – Juniors Eligibility effected >>> SERIOUSLY READ THIS >>>

On Saturday the Treasury updated the Factsheets on the JobKeeper program and included in the update the eligibility criteria for Juniors.  This update has changed the previous criteria from “as at 1/3/2020 were over the age of 16” to “as at 1/3/2020 were are at least 16 years of age at 1 March 2020, with the exception of full time students who are 17 years old and younger and who are not financially independent”.  This difference is stunning and will have an impact on businesses that have already been approved for staff and made the payments for the Transition Period.  It is noted that the ATO Employee Nomination Form (as at 16:30) still shows the old criteria, so businesses and staff are applying the old criteria in good faith, and the change to the eligibility may impact the payment that businesses receive.  ACAPMA is urgently following this up directly with Treasury and anticipates an answer in the morning.  For now all businesses should note that Juniors may change in their eligibility, so if possible, hold off on paying their Transitional Period Top Up Backpay until clarity can be sought.  It will need to be made by 30/4/2020 for eligible staff.   However it is worth waiting until the deadline for juniors, because, if the business makes a payment to an employee who is 17y and is, according to the old criteria and the current ATO form, eligible, but they are then removed from eligibility based on the new criteria, there will be no payment to the business, and, as covered yesterday, there is no mechanism for recouping that money from the employee (other than by agreement). 

• ATO JobKeeper Application deadline extended – but the details matter, don’t apply late until you understand the details

The ATO has extended the final application date to 31/5/2020…BUT…any business that applies for the JobKeeper program AFTER the normal application deadline of 30/4/2020 WILL NOT receive any payments for the Transition Period of 30/3/2020-26/4/2020.  To be clear, even if the business has paid the eligible staff the minimum $1,500 before tax per fortnight for the period of 30/3/2020-26/4/2020 (in real time or via a backpayment) but the business does not apply for and get approved for JobKeeper until after the initial deadline of 30/4/2020, for example on 6/5/2020, then the business will not receive any JobKeeper Payments for the period 30/3/2020-26/4/2020.  The message is this; if your business has suffered the minimum decline in turnover, or, if it is predicting that it will suffer the minimum decline in turnover by September, then it should apply urgently, now, BEFORE 30/4/2020 to ensure that approval can be gathered in time to make the required backpay for the Transition Period.  It should also be noted that there is no mechanism to recoup any amount paid to the staff in anticipation of the JobKeeper being approved other than by agreement.

• COVID Safe App launched

The Department of Health Track and Trace COVID Safe App was launched yesterday and will form an important weapon in the prevention of secondary case number spikes as lockdown restrictions ease.  The app utilises the phones Bluetooth to ‘ping’ other phones nearby that also have the app and record when the phones are near eachover.  In the event of someone who has the app being diagnosed with COVID-19 they have the option of providing the Department of Health access to the information in the app that will then notify all of the phones that ‘pinged’ with the patients phone for the exposure period that they may have been exposed and they should get tested and isolate.  The data on the app is in the control of the user and cannot be accessed without permission.  Once the crisis is over the app will notify users to delete it.  It is important for businesses to note that while every Australian of every age is encouraged to download the app, give it location permission and ensure they leave Bluetooth on so that it can work, that it is voluntary.  There are specific protections for all persons who choose not to download the app.  No business or government body can require a person to download the app, or deny access to any services or places because a person does not have the app.  As lockdowns ease there will be secondary spikes in cases, high participation in an app like this will ensure that they can be contained quickly and that the unchecked clusters and spread that were seen at the beginning of this crisis is not faced again…so please download the app, spread the word and keep safe.  For more information on the COVID Safe App see; https://www.health.gov.au/resources/apps-and-tools/covidsafe-app.  To download the app for Android click here;  https://play.google.com/store/apps/details?id=au.gov.health.covidsafe To download the app for iPhone click here; https://apps.apple.com/au/app/covidsafe/id1509242894

  Q & A with ACAPMA

Q:  What if I am not approved for JobKeeper, how can I get back the money that I have paid my staff?

A:  As outlined here; https://acapmag.com.au/2020/04/jobkeeper-wage-subsidy-program-when-to-pay/ if there is a concern that you will not be approved for the JobKeeper then you should not be paying the payment.  There is no mechanism (other than by agreement) to recoup overpayments to staff, so they should not be made until you are approved.  Approval is given quickly once the business has applied for the JobKeeper (usually within a few minutes to hours), and for the period from 30/3/2020-26/4/2020, which is known as the Transition Period, the business can backpay staff the amounts to top up to $1,500 before tax per fortnight for that period.  These Transition Period backpayments will need to be paid by 30/4/2020 – so it is important that the business applies for the JobKeeper now.  If the business applies at a later date and is approved, if it has not paid at least $1,500 before tax for each eligible staff member, then the business will not receive the payment for that period, only for periods from the approval date.

The business can not simply deduct any overpayment from staff – even in the event of a payroll error, the business must have approval in writing for all deductions.  Some staff contracts provide for the incremental deduction of payroll errors, which would count as agreement for an error, provided it stipulated the maximum amount to be deducted per pay period or laid out an option for alternative arrangements depending on the nature and magnitude of the error.  Even with such a clause however, it is not clear if the business would be able to claim that any Top Up payments that were paid in anticipation of the JobKeeper approval would fall into the category of a payroll error, because it is clearly paid with intention, and paid prior to the application and approval, which is not necessary and is therefore a calculated business risk.

Q:  My business and staff have been approved for JobKeeper, can I issue a Directive for my staff to work more hours, up to the value of the $1,500 before tax per fortnight?

A:  This is an old question, but it has come up repeatedly over the weekend and the answer is a very clear NO!!!!! 

If the business and the employee are both participating in JobKeeper the business can issue several Directives; to reduce hours (including to zero), to undertake differing duties, to work from a different location (provided the distance is reasonable) and to take annual leave (provided after the amount Directed to be taken is removed the employee still has at least 2 weeks entitlement in the bank).  By agreement there can be a Directive concerning; the days of work, taking leave at ½ pay and undertaking other work for other businesses and training.  There are requirements for the issuing of any Directive, including consultation and notice.  There is however, no mechanism to increase the number of hours that an employee works.

Like always there is capacity for the employee and employer to agree to work more hours, but any such agreement will need to be genuine – this means it can not be based on misrepresentations.  A recent case outlined that a business that has sought agreement to increase hours on the basis that ‘it is a requirement as part of the JobKeeper to work hours to the value of $1,500 before tax per fortnight’ any such agreement was deemed to be invalid, resulting in not only adverse action claim implications, but also the need for the business to apply overtime rates to any time that was worked in excess of the normal hours as it was ‘additional hours at the direction of the business’, which attract overtime penalties.

The message is clear, while it is possible to reduce hours for staff as part of the JobKeeper Flexibility provisions, there is no capacity to increase them other than by genuine agreement, and any business that attempts to convince staff that they ‘have’ to increase their hours, will face not only overtime penalty rates and backpay, but also the uncapped penalties of adverse action claims.

Q:  Do I have to pay staff on unpaid leave the $1,500 before tax per fortnight if both the staff and the business are approved for JobKeeper?

A:  Yes…if it is approved leave.  An employee on APPROVED unpaid leave will receive $1,500 before tax per fortnight pay if they and the business are approved for JobKeeper as per;

https://treasury.gov.au/sites/default/files/2020-04/JobKeeper_payment_frequently_asked_questions.pdf  (page 10; “I AM ON UNPAID OR PAID LEAVE. WILL I RECEIVE THE PAYMENT? Yes, unless you are in receipt of Government Parental Leave Pay or Dad and Partner Pay. If you are an eligible employee and your employer is an eligible employer, they will receive the payment whether you are working, on leave, or have been stood down.”)

Here the important element is the approval.  If the business approves unpaid leave then the employee will receive the payments, however, if the employee is rostered to work and refuses to appear, and the employee is not on approved leave (including personal and carers leave) then there will be an issue of failure to follow lawful instructions (misconduct) and abandonment of employment, which will trigger a Show Cause process and eventual termination if the employee does not show a valid reason for not presenting to work.

   ACAPMA Consolidated COVID-19 Articles and Resources (updated daily)

EMPLOYMENT

• For general information on the situation and the implications for employing staff, including new sections on Payments and Leave, and considerations around business downturn see; https://acapmag.com.au/2020/03/hr-highlight-managing-covid19-risk-in-the-workplace/

OPERATIONS

• For information and resources on Keeping Customers and Staff Safe instore from a practical standpoint see; https://acapmag.com.au/2020/03/hr-highlight-covid-19-keeping-customers-and-staff-safe/
• For practical guidance on achieving Social Distancing in Retail, including guides and posters see; https://acapmag.com.au/2020/03/safe-distancing-in-retail-maximum-vs-practical-limits-and-communications-to-customers/
• For practical guidance on Roadhouses and the exemptions to allow Dine In for Heavy Vehicle Drivers, including guides and posters see; https://acapmag.com.au/2020/04/states-confirm-roadhouse-open-for-dine-in-for-heavy-vehicle-drivers/

BORDER CLOSURES

• For information on Boarder Closures see; https://acapmag.com.au/2020/03/border-restrictions-what-you-need-to-know/

BUSINESS RELIEF MEASURES

• For information on the raft of support measures available to businesses, including the Job keeper Wage Subsidy see; https://acapmag.com.au/2020/03/wage-subsidy-what-you-need-to-know/
• For the one stop list of all COVID-19 Business Support Measures, including links and information see the ACAPMA COVID-19 Business Assistance Quick Reference Guide.pdf – ACAPMA Members can request a copy of the Guide by emailing employment@acapma.com.au .

HAVE QUESTIONS?

Email employment@acapma.com.au and we will get you answers and fold those answers into these consolidated articles

STAY UP TO DATE

   Follow ACAPMA on LinkedIn, so you get the daily updates - https://au.linkedin.com/company/australasian-convenience-and-petroleum-marketers-association-acapma-

We look forward to a time when we will not have to send out these daily updates, but for now the situation is changing so rapidly that these updates are seen as necessary to ensure that Members are updated.  If you would like to be removed from the update list please reply to this email and request removal.

Stay safe everyone – long distance hugs and high fives for you all! 

E

Should you require any further information or assistance please do not hesitate to contact me.

Kindest Regards

Elisha Radwanowski