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then I called Employsure's fair work helpline"

Australian businesses wrestle with one of the most complicated workplace relations systems in the world. The rules around wages — known as awards — are notoriously complex. Many countries have one minimum wage. In Australia, we effectively have hundreds. You need to be sure that you’re paying your staff the right amount. Don’t risk trusting the wrong advice. It’s too easy to get wages wrong.

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Employsure founder Ed Mallett featured on Sunrise.

Ed appeared on Sunrise on September 9th, 2020 to discuss the latest changes in JobKeeper 2.0.

Interested in hearing more? Check out our weekly live streams, every Friday at midday on Facebook.

Ed Mallett On Sunrise, 9 September 2020
4:04
Now Australia is facing its worst recession on record with millions of Aussies relying on government subsidies to survive. But at the end of this month businesses, workers, and the unemployed are in for some big changes.

Sure are, both the JobKeeper and JobSeeker payments will drop. New research has revealed just how concerned Aussies are. Here's what you need to know.

It's being referred to as the JobKeeper cliff and Aussie businesses are fearing the drop.

We know that JobKeeper and JobSeeker are keeping the whole country afloat at the moment. We know that it's keeping families going but it's also supporting businesses keep going during this time especially in places like Victoria where they're shut down.

From September 28 the fortnightly payments for full-time employees will be reduced from $1500 to $1200. That will drop again on January 4. If you're a part-time worker, payments will half to $750 a fortnight at the end of this month, and scale back to $650 a fortnight at the start of next year. The JobKeeper scheme is set to end altogether on March 28 next year. For JobSeeker recipients, payments will be cut from $1100 a fortnight to $815 from September 25 and remain in place until December 31.

I think it's a huge mistake to scale back both JobKeeper and JobSeeker. The only way we're going to recover as a country is if people have the confidence to spend.

New research by Mozo shows Australians are concerned. There's a lot of nervousness in the air in many households around the country about how people will be able to manage their finances and pay for things like rent and the mortgage and even groceries once the payments scale back. Mozo's data reveals 1 in 5 would no longer be able to afford their current place of residence. A further 1 in 5 are worried they wouldn't be able to afford groceries, and 1 in 10 predicted they wouldn't be able to afford child care if the subsidies ended too soon. Treasurer Josh Frydenberg says the payment will be tapered as businesses adjust to the new environment, supporting a gradual transition to economic recovery. Now to qualify for the extended JobKeeper scheme you still have to show a decline in sales for the September quarter. For companies with the sales over a billion dollars, that decline's got to be 50% or more. For companies with sales under a billion dollars, it's 30% less. And for charities and not for profits it's a 15% drop in sales.

You need to be very careful with it, for example you've had employees stood down during the last few months and you no longer qualify for JobKeeper, you're going to need to consider whether you need to bring them back which may in turn lead to you needing to consider things like redundancy programs.

And for those on JobSeeker, unless you live in Victoria, you must now connect with employment services and undertake four job searches a month. And if you refuse a job, there will be penalties. Now it is important to note that after September some people on JobKeeper may also be eligible for a part payment of JobKeeper. Your earnings will have to be below $1275 a fortnight so if you're receiving JobKeeper at a rate of $1200 a fortnight with no top-ups from your employer, you may be eligible for a part-time JobSeeker which is about $276 a fortnight, this would take your total payment to $1476 which is close to the original $1500. So there are a few tricks around it to make sure your income can be supplemented.

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Employsure | Confidence In Running Your Business
1:53
Man: I'm sure I don't have to tell you that running a small business can be challenging. And the last thing you need are problems from your staff, the very people you hired to make your day easier. But, unfortunately, workplace problems can arise every single day. And as a business owner, you need to be able to navigate some of the most complicated workplace laws and wage systems in the world all while doing your day job, running a successful business. So, who can you turn to for help?

Woman: Good morning. How are you today?

Man: Good morning. I'm very well. How are you?
Ask the experts at Employsure because our day job is dealing with complex workplace relations and awards so you have the confidence and control to get on with your day job. Employsure, one of Australia's leading employment relations experts, offers peace of mind to business owners. Our experts take the time to get to know you and your business and the unique situations that you face. So, you can be sure the advice we offer isn't just a run-of-the-mill robot reply.
Congratulations Tina, and welcome to Employsure.

Woman: Thank you so much for coming today.

Man: But rather completely tailored to the challenges your business faces. What's more, we stand by our advice and we can help you should you ever find yourself faced with a claim. Now, you can't get surer than that.

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Employsure's consultants are available 24/7. No matter what your fair work issue, we're here to help. Peace of mind is just a phone call away ...

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Because we're confident you’ll find the Employsure experience so beneficial, we’re happy to offer this initial consultation free of charge.

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Employsure takes the complexity out of workplace relations to help small business employers protect their business and their people.

I can't afford a big HR department or lots of lawyers in house. So I outsource it to Employsure."

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Client Testimonial | Pinstripe Media
0:54
Kochie: And now Employsure, not sure if you've heard of them. I don't mind saying I've used them for
years in my business. Because, being a small business, it scares the hell out of me, the employment workplace health and safety issues that we've got to deal with. And I can't afford a big HR department or lots of lawyers in house. So I outsource it to Employsure and basically I'm not not the only one Ed, you've got quite a few business owners like that.

Ed: We do, we do we've got about 27,000 small businesses that subscribe to our services across Australia and New Zealand.

Kochie: Because I came across you when you were a startup.

Ed: You did.

Kochie: Started, just started I loved the idea.

Ed: Yeah I'm grateful for the business, now it's been a crazy few years of growth and certainly like a lot of businesses we're getting our first days of a really big seismic challenge now as well, to handle that.
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Fridays With Ed Live Stream - 18th September 2020

In today's session of Friday's With Ed, topics covered included updates from inside Employsure, an insight into the world of workplace relations updates, including wage theft in the news, and successful crisis management during COVID-19.

Fridays With Ed | Leading Through COVID-19
51:17
[00:00:00.419]
Ed: Hi, everyone, Ed here, checking in for our Friday session. I'm sorry that there was a gap in sessions last week. I was away on holiday. I snuck away for a long weekend. Very nice to be able to do so. But I'm sorry for, that meaning that this got interrupted. It just seemed a bit weird going on a bit of a break in the midst of the crisis. But I think probably, maybe I'm just trying to assuage my guilt about it that we as leaders need to make sure that we're resting up. Poor Dan Andrew is down in Victoria. Looks like he's about to keel over any second. So, if anyone needed a long weekend, I think he probably does. But anyway, that's not why I'm here to waffle on about. I'm feeling a bit ranty today, ranty. That was with the tea, not with anything else. Don't worry, anyone that was concerned about that. And I'm going... And the reason I'm ranty is because there are various things that are annoying me that have come out through the media this week about Workplace Relations, I'm gonna update you on. So I'm gonna go through those things. We're gonna talk a little bit about JobKeeper 2.0. So this time next week, we're gonna come to the end of JobKeeper 1.5, as we've been calling it and move into JobKeeper 2.0. It's a bit of a chat about that. Finally, I'm gonna talk about this thing that you might be reading about called the K-shaped recovery, which doesn't sound like it's much good news for small business. And I'll explain what I understand of that and what I'm saying. Before I do, just a reminder of why we do this session, I suppose to try and get some alignment on it and give it some purpose.

[00:01:41.127]
Hopefully, what we're doing is providing you with some insights from inside a business as much as anything, how things are going here, what I'm seeing, how I'm managing the crisis here. Hopefully, that's useful, even if it's just so you can see how much better you are than me at managing your business. And you perhaps get some comfort out of that. And the second is to do a bit of what we do professionally, which is Workplace Relations, and to give you some insights and updates into what's happening in the world of Workplace Relations. Couple of updates this week, around, for example, the concept of wage theft that I'm gonna go through, then finally, it helps me. So there really is a purpose to this for me. It keeps me on top of the media to make sure that I'm reading all the right articles. I need to understand what's going on in my business. But it also gives me a point of focus in the week, which enables me to stay true to the mission that we're on at Employsure to work our way through the crisis with success and to ensure that we come out successfully on the other side.

[00:02:53.644]
So, that's a bit about why we're doing it, just to keep me on track. And I'm gonna move swiftly on then to wage theft, which has gotta be one of the most offensive terms that have come out in corporate-speak in recent years, I think. So, the worrying thing about this concept of wage theft is it's no longer a throwaway comment used by journalists and so forth in the media about the concepts of underpayment. It's now become law, not just in one state Victoria, but now too in Queensland, that businesses, employers can be prosecuted for what is called wage theft with the prospect of a maximum of 10 years of jail time if they're found to be the thieves, which, it really disturbs me because when you read the media on this, and actually even if you go behind the media on it, which, you know, they've gotta sell papers ultimately, so it might be a bit prone to embellishing things.

[00:03:52.573]
But actually, if you look at the commentary from the state politicians in Queensland, the relevant ministers on Grace in Queensland, and what she said on that was a couple of things that were just totally... It was like taking a plug socket from one country and trying to shove a plug-in from another country. It just didn't fit. So she's justifying this concept of a wage theft law in Queensland. And she says, "The reason I need to do it is that," she says, "one in four Queenslanders are being ripped off, are subject to wage theft." I just don't think that that's a true number to suggest that 25% of Queenslanders are having money ripped off from them. Bear in mind, less than 25% of Queenslanders work in the first place, but that's true of all states. No offense to any Queenslanders before you jump on. I'm not suggesting you're not hard-working types. It's just that the reality is less than 25% of people work in an economy. But even if you just look at the working people, there's no way 25% of people are being ripped off. Now there may be a case to argue that 25% of people are getting underpaid by the confusion caused by the very confusing set of modern awards that we're all subject to. But it does suggest that those 25% of people and therefore, a huge volume of employers, presumably 25% of employers are thieves is just an awful thing to say, frankly. And it really undermines I think, the hard work that employers do day to day to create ultimately and support the economic success for our country. And I just wanna give you a bit of an insight then is to... So there's that hop, skip, and a jump. She says we need wage theft laws because 25% of people getting ripped off. No, they're not. You're fibbing. So you then get into the next thing that gets quoted, which is, "Look at how bad things are."

[00:05:49.792]
The FWO went after the restaurant industry, just before the pandemic, and it found that they looked at 1,351 companies, restaurant businesses, and they had been underpaying to the tune of 1.2 million. Glorious headline, $1.2 million of people being ripped off. It's terrible, isn't it? I'm just gonna go through a very brief exercise to make my point here with my big calculator. Many of you may not see one of these before. If you just use your phones and so forth, these days, I still hang out with my old fashion calculator. But if I do $1.2 million, and I divide that... Let me just check my math is correct by what the 1,351 businesses. That means each business on average is underpaid $888. So it doesn't sound great, initially. Let's divide that by let's say five employees in each business. So let's assume they're all pretty small businesses, they're probably gonna be bigger than that, to be honest, as restaurant businesses, but let's say 5, that means $177 per employee. On average, let's say the employees in that workplace work for them for a couple of years. That gives you $88 per year per employee, divided by a week gives you $1.7 per week per employee. Now, I think it's absolutely shambolic that a government would gauge itself, which ultimately is just political point-scoring in the idea of calling small businesses thieves, when no one's trying to cut the corner of $1.7 per week, not even per hour, per week per employee to make more money. The reality is they're doing it because it's so bloody hard to administrate wages in Australia because the award system is so bloody complex, that people make errors. And we see the errors in Woolworths and Westpac recently, and huge businesses that yes, should know better and should have the systems in place to know better, but the reason they fail is because it's so bloody hard.

[00:08:00.576]
There is no one sitting in a Westpac boardroom or a Woolworth's boardroom saying, "You know what guys? I have worked out a way how we can get our profits up this year. Let's screw the little guy and not pay him his minimum wage." It just doesn't happen. But instead, these governments have rushed through a bit of some political posturing, which we all know in Queensland, it's pretty prevalent at the moment in order to start sort of stigmatizing small businesses. And I find it really bloody insulting, as you can tell from my tone. But the idea is small business owners could face 10 years in jail because they're trying to do the right thing in a system that's so hard. All it does is dissuade people from running small businesses. Why on earth would you go into small business? We all know that running a small business... We might have thought when we got into it that we were all gonna become millionaires by running small businesses, but the reality is small business owners aren't millionaires and not people that are out rotting systems. They're trying to make ends meet and quite often are not paying themselves minimum wage because they're simply having to try and make ends meet for their employees. So I find it pretty bloody insulting that that's the tone of the political debate at the moment. And that political debate goes into the reforms meant to be going along at the moment. There's all these sort of secret committees, which is never particularly been having no idea why Christine Porter set up these secret committees. No one really knows who's in them. We don't know who's meant to be discussing our future as employers.

[00:09:30.455]
I've certainly not been asked as an employer whether I've got any views on it, which is a bit odd, if you bear in mind, I'm not only an employer of 900 plus people, but we've got 27,000 small business clients who have very real views about what's going on in the employment world. But what we saw this week was there was a big blow-up great surprise. I predicted on here, like, some sort of Workplace Relations [inaudible 00:10:00]. I'm gonna claim... I predicted on here that these discussions would go nowhere and fairly predictably, they haven't. What has happened is there's been this enormous amount of focus on these things called Enterprise Bargaining Agreements, to which I think if you're watching this as a small business owner, you may have heard of that have really got no relevance to you. About 10% of businesses use enterprise bargaining. If you're a small business in the construction industry, you might be tied into one by a worksite agreement. But in reality, most small businesses don't use enterprise bargaining, but they spent oodles of time discussing how they can improve enterprise bargaining. And what has come out in the last 24, 48 hours is that it seems that the ACTU has been trying to further its nest really, and what they have proposed and they've somehow managed to get the Business Council Australia to support this. Remember, Business Council Australia is just a big business thing, really. It doesn't really affect us as small business owners. But big business representative has said, "You know what? Let's set up an enterprise bargaining system where things are done more quickly and efficiently if you're a union member," which fairly logically would lead to an increased amount of union membership, feathering as I say, the nest of the ACTU.

[00:11:20.656]
And I get this slightly ridiculous thing to suggest, given that only 10% of the private workforce is a member of a union, a tiny number of people are union members. So, again, that would be heavily distorted by things like construction. Outside of construction, a tiny, tiny fraction of businesses, private businesses, private employers would have union membership in their workplaces. So the idea that all of those people who are actually the ones who have less access to legal help, and so forth, should not get the benefit of the same things as the bigger businesses and less their staff of union members. It's just an awful thing, really. It's just a fairly transparent attempt to increase union membership, which in a modern world would be probably the only OECD economy where you'd be seeing union membership increase. That's just not the way things are going. So in response to that, the Master Builders Association who represent a number of building businesses, so they represent about 30,000 building businesses, about the same number that Employsure represents in small businesses across sectors. They got invited to these committees, I didn't. I'm just saying, but I'm a bit bitter about that. I feel like I'm not being invited to someone's wedding or something. But they got invited, but they did what I would have done anyway, which is they walked out in response to the suggestion that there should be this two-tier system. And I think it was a very reasonable thing for them to do on behalf of their small business members who would have been outraged at the way these conversations going or outraged. I feel like there's a shock jock just giving outrageous outrage and anger today, lots of anger.

[00:13:03.905]
So, less anger on this one, JobKeeper. 2.0. End of next week is the end of JobKeeper 1.0. So, you should be getting your house in order to work out. And when you can't really work out the JobKeeper 2.0 with complete accuracy X. You've gotta measure to the end of September quarter as to whether you are eligible on the downturn test. Talk to your accountant about that. I'm not an accountant. Speak to your accountant about whether you are eligible for JobKeeper 2.0. But even if you don't qualify for 2.0, chat to your accountant about whether you've had the requisite 10% downturn to become what they call a legacy employer. And I'll come back to why that's important in a moment. So if you are JobKeeper 2.0 eligible, you've gotta satisfy the wage condition by the end of October. Remember, that means making sure that your employees are paid at least the amount that they would be entitled to under JobKeeper, either for work that they are doing for you or on the basis that they stood down. But there are two types of employees, those who have less than 20 hours are on $750 at this stage of JobKeeper 2.0, $750 fortnight versus $1,200 a fortnight for everyone else.

[00:14:26.768]
So talk to your accountant about that, talk to organizations like us about whether your employees satisfy employment tests, for example, is on a regular and systematic casual. I don't think that's the sort of advice you should be asking your accountants for with respect to them. That's not their area of expertise. And I can answer some questions about that in due course. And then beyond that, make sure you're checking the employment issues that flow from JobKeeper 2.0. So remember, one of the things before JobKeeper 2.0 got legislated was that everyone was quite scared of this sort of what they called, I think a JobKeeper cliff.

[00:15:05.846]
The subsidy is stopping. And suddenly people are not having the money to employ the people that they had on JobKeeper. And suddenly, they're being a ton of redundancies, and so forth. And the government's obviously put this in place to try and prevent that cliff occurring. However, because the test has changed, there are gonna be a number of businesses who are coming to an end of JobKeeper now. If you are one of those businesses, you should have already considered whether you need to reshape your workforce, restructure your workforce, and look at redundancies. You're too late to be honest if you haven't because any process now is gonna take more than the following week. So you're gonna have the costs going outside the boundaries of JobKeeper, of going through processes relating to that.

[00:15:48.153]
So I hope that you haven't had your head stuck in the sand on that. But if you have, I'm not gonna judge you on here, just ask the questions, and I'll see what I can do. But if you're not a JobKeeper 2.0 business, but you are a legacy business or you've suffered a 10% downturn in the September quarter, then you're still gonna have the ability to do certain forms of stand down, changing in hours and so forth for your staff. And that's important for two reasons. One, it gives you continued flexibility, which means even if you're not getting the subsidy, it might be that you can reduce the hours of your staff. You can only do that importantly as the legacy employer down to 60% of their usual hours, as they were at the beginning of March. And what you can't do is call someone in to do less than two hours work a day.

[00:16:46.189]
Importantly, if they are currently on some form of stand down, you basically need to renew that stand down. You need to do it again and you need to provide seven days' notice of that. So, remember, it's only seven days, as from Monday, the JobKeeper 2.0 kicks off on. So you need to be thinking that you're getting these notices out Monday, and we're getting a lot of calls for clients today who are needing to understand how to renew or refresh their JobKeeper 2.0 directions if they are a legacy employer and so on. So, you talk a lot more quickly when you're angry. You know, I'm not really flying through it. I thought I had loads to say but apparently don't. So yeah, be very aware of this legacy point and what is happening with your staff as we come to the end of JobKeeper 1.0. Just can't sit there and think, "Well, they were on stand down and they can carry on stand down." That's not the case. It's much more complex than that. And we'll go through it in a moment.

[00:17:47.704]
So final thing for me before we go on to some questions is this concept of trying to get on here on a K-shaped recovery. And what it's meant to mean is this, I think is that we came into the crisis in a certain direction. And there are basically three routes out of the crisis. There is up, there is down, and then there is out. And what the narrative in the media is, is a worry there's an increasing concept of a K-shaped recovery in that there are certain businesses flying as a result of the crisis. Some of those are small businesses but what they're pointing to particularly is tech-based businesses that were already in strong positions to expand upon the technology they use in their business. So, classically, the biggest one out of the crisis is probably Zoom, that people are saying, like, the circumstances have just created this amazing growth story for them. And these big tech unicorns as they're sometimes called are just only getting bigger and bigger as time goes on.

[00:18:54.585]
Amazon has also been a benefactor of the crisis. As I say, some small businesses, those particularly that had certain business models suited the crisis better, perhaps were already doing a lot of that transactional work online and so forth, have done well. I can think, for example, a classic one, things like retailers of gym equipment or retailers of bikes were a classic one that really did well out of the crisis. Then you've got, so I said, there's up, which is those and there's down, which is I suppose most other businesses. You know, I'd count myself probably somewhere near this group in that, look, I wouldn't ask for the crisis. Again, I think we've been very fortunate in that what we do is very relevant to people at this time. But it doesn't change the fact that we ultimately have a client base of small businesses of 27,000 small businesses who are paying us money. And the problem that we foresee is that those clients are not able to carry on doing that because they're going out of business, whatever it might be. And that's not a good thing for us.

[00:20:04.376]
So things have been okay for us, but there are other businesses that will have undoubtedly suffered downturns, but will survive through this crisis. And then the out strand of the K is the risk of small businesses going out of business particularly. And the narrative in the media is that this is increasingly becoming a K-shaped recovery, with that, meaning that small businesses are under real risk. And I don't want to understate that. There are certainly risks. And, you know, I'm saddened as anyone is when you see shops, particularly in areas like CBD, that just not seeing the point in opening, again, because people's working behaviors are changing and so forth. But what I am seeing to give any comfort on an economic level. And I think that we're really a good bellwether of this, because of our scale in terms of the number of small businesses that we work with, across so many different industries.

[00:21:03.364]
But we are not saying yet, and I stress the yet, maybe JopKeeper is supporting this, maybe we will keep an eye on it over the next few weeks ourselves. What we tend to see during this crisis is that where there's a dramatic change in operating rhythm, Victoria goes into lockdown. For us, we're in New Zealand as well. When Auckland went back into a lockdown, you see a big sort of reverberation in the small business community of people saying, "I can't pay bills anymore. I've got problems." And then it settles back down once people have sort of gone out of the worrying phase, into the thinking phase, and critically look at whether they can actually do things and carry on. And what we're seeing actually is a lot of stoicism from small business, and most people are carrying on. A lot of people, as we've talked about on here have changed their business model successfully.

[00:21:54.883]
And I think that that's a necessity now. And I'm drawing on that realization as a business owner. I quarterly meet with all of my direct reports in the business and have a review with them. And a common theme that's coming out of that from them, not me, is that they're sort of saying in their quarterly review this quarter, "I don't really feel like I've done much this quarter." Now I said it's funny that isn't it in the... When I look back to what we talked about at the end of last quarter. We've just come through this intense crisis period at the end of the June quarter would have been. And we were all just sort of out of breath from how crazy it had been, and proud, and pleased that we'd sort of stood up to the fight, I suppose. And the narrative at that time was that we felt like, by this time we would be out of the crisis. And the reality is that three months later, we're not out of the crisis. We're still in the midst of it, but it's not quite as chaotic and dramatic and so forth.

[00:23:00.611]
But there is a sense of a new normal. And I think that we're all coming to the understanding that the answer to what's gonna occur is neither black nor white. We're not gonna wind up in a situation where we're heavily locked down forever, but we're not gonna be back to normal either, anytime soon. So what we're trying to do as a business and I'd urge others to do as well, just find out what our new normal is now, what we can actually expect from the business. Let's get back to where we thought we had good rhythm and routine going in to make sure that people weren't just in crisis mode all the time. But we're just working on that now. Because I think apart from anything, it's pretty exhausting to be in crisis mode all the time. We've now gotta deal with a realism that we need to be moving forward and accepting that Christmas isn't gonna be the end date of this. There isn't really an end date. It's going to be some form of evolution over time. There's not gonna be a switch that gets flicked for any of us, unfortunately, to get back to normal. So, that's it from me. Over to Stig, for... You've got new glasses, Stig. You look like you're copying me there. No, they're the same. Stig's very offended. He's far trendier than I am. And he's probably spent thousands on these trendy specs and he's just been told he's got the same Specsavers ones as me.

[00:24:25.949]

Stig: I've got a couple of pairs, I just choose one in the morning.

[00:24:29.316]

Ed: Yeah, okay. Just casual. Yeah, sure.

[00:24:30.999]

Stig: Ed, just kicking off with a couple of comments from Janai. Good on you for taking a break.

[00:24:38.419]
Ed: Thanks, Janai.

[00:24:39.632]

Stig: Richard says, [inaudible 00:24:41] of your trusty calculator, where's your Abacus?

[00:24:44.564]

Ed: I suspect there's a disproportionate amount of small business owners that's still calculator-based. There's a... I certainly see it when I speak to clients is quite often you're in a bit calculated on MDs desks, that seems to probably be a tool MDs still use in small business.

[00:25:07.143]
Stig: And as always, from a colleague, we may come across some financial questions through the course of this. It's not our area of expertise, we do encourage people to speak to their accountants and registered tax agents, as you've mentioned.

[00:25:20.051]
Ed: Who is that mysterious colleague? She appears every week,

[00:25:23.110]
Stig: Stig times 2.

[00:25:26.917]

Ed: Yeah.

[00:25:27.621]
First comment from Anita. She's a client, Hired. "I'm still unclear if a few of our casual staff who have been on stand down since March 27th, we're in the swimming industry, 100% closed, but were employed by us for the previous nine months, at the minimum, are still eligible for JobKeeper 2.0. Do they qualify for JobKeeper and do we have to put them on JobKeeper if they are still on stand down?"

[00:25:53.224]
Ed: Hi, Anita. So I think the question is, if I'm right in saying this, they weren't JobKeeper 1.0 eligible because they were casuals. You stood them down in March, that they had only worked for you for nine months at the first of March. So they weren't eligible. There hasn't been complete cloud. So the messaging from the government is that the eligibility rules are not changing for employees. We've gotta get clarification on that still. Shout out if anyone's got this clarification. I can't see it, I've looked online. But, you know, what we know is that from August forward in JobKeeper 1.0 or 1.5, as we've been calling it, the goalposts shifted to say, if you have done 12 months as a regular and systematic casual, up to the 1st of July, then you would qualify for that period. It's not clear whether that... So I can't say as I said, not clear where that eligibility rule translates since 2.0, meaning that the eligibility test is 12 months from 1st of July, which in your case, would enable those casuals to be qualified. So, first things first, speak to your accountant about whether you are eligible. Hopefully, by the time you've got the chance to do that, your accountant will be able to advise as well on whether your employees by eligibility date are eligible. We as a business can advise you whether they're really regular and systematic casuals, and therefore, whether they should be included in that pool. So I'm happy if you wanna ask more questions on here to talk about their hours and things I can give you a sense as to whether they're regular and systematic or not.

[00:27:40.836]
Stig: Makes sense. From Naomi, she also is a client. "We have employees that are unable to come into work due to current border closures. They're on JobKeeper stand down. You mentioned that we can't leave employees on JobKeeper stand down with 2.0, but they can't get to the worksite. Do they then have to use their accrued annual leave or go on to unpaid leave?"

[00:28:02.923]
Ed: So hi, Naomi, and thanks for your business. I think this is probably the Naomi that I've spoken to a couple of times on here before. Austin, is that her surname?

[00:28:14.140]
Stig: [inaudible 00:28:15]

[00:28:15.420]
Ed: So okay, that might stick for slicing the ball today. But, whatever points reveal of this. Yeah, way around, Naomi. The question there has a couple of branches to the answer. So, first of all, you need to work out whether you're a JobKeeper 2.0 company, depending on the scale of your downturn. If you are, you have different forms of availability or different levels of access to stand down directions. So if you're not a JobKeeper 2.0 company, and you're not a legacy company at a 10% downturn in September quarter, then you don't have those stand down rights anymore. So, basically, you would have an employee who is not able to do their job, assuming they physically need to be with you to do their job. If that is the case, then you go down the pathway of needing to terminate their contract with them on the grounds of what sometimes lawyers call frustration, which is probably quite an apt term. It's frustrating that you can't basically execute the contract, the deal between you and the employer. If you're a legacy employer, and they weren't able to come across the border at all, and therefore still couldn't do zero hours, you've got a similar problem in that... That means you're only allowed to reduce their hours down by 60%. So in essence, you'd still be at zero hours, which would mean, again, you'd have a problem that you'd need to try and work through. And, again, this is all on the presumption they need to physically be with you to work. If you are a 2.0 employer, you would be able to continue the stand down. So, it's a challenging situation for you there, Naomi, I have to say.

[00:29:57.349]
Stig: And this from Karen. She's a client from Crofts hired just to confirm, again, even if an employee is currently on unpaid parental leave, they would still be entitled to the full JobKeeper rate and not the reduced amount if they were on annual leave of more than 80 hours per week in the referenced period before the first of March 2020.

[00:30:19.917]
Ed: So, it was Karen, wasn't it?

[00:30:21.923]
Stig: It was.

[00:30:22.564]
Ed: And Crofts from my recollection are an accounting firm. They're a client of ours, that if... And maybe there's more than one Crofts. But I say that because I remember coming to the sales meeting the best part of 10 years ago. So, Karen, if that is you from Crofts Accounting, sounds like you're an accountant from your question. No offense, Karen, but that's the most complicated set of numbers I've ever heard. I have to get my calculator out to quickly go through it slowly again. And there's a high risk as well, Karen. I'm gonna turn around and say this is a question for you, and not me if you're an accountant. So let's see what she says again [inaudible 00:30:58].

[00:30:58.201]
Stig: Just to confirm, again, even if an employee is currently on unpaid parental leave, they will still be entitled to the full JobKeeper rate, in brackets, and not the reduced amount, if they were on annual leave of more than 80 hours per week in the reference period prior to the 1st of March 2020.

[00:31:18.570]
Ed: Okay. So, the question is, they're on unpaid leave at the moment, and they were on annual leave prior to the 1st of March 2020?

[00:31:31.144]
Stig: Yes.

[00:31:31.900]
Ed: Essentially, are they eligible for a JobKeeper 2.0? I was breaking the question down, Karen. I think question number one is, are they eligible for JobKeeper 2.0? On any reckoning, the marker there is the 1st of March 2020, given they're doing annual leave. I'm assuming they're permanent employees. So yes, they'd be eligible for JobKeeper 2.0 if you as a business are. And then second to that you get into the question of, okay, they're away on parental leave, which I think you said is unpaid, in which case, you know, as long as they're not getting paid parental leave, then yes, they would get JobKeeper. But remember that it's at reduced rates in what they call stage 1 of JobKeeper, depending on their hours. I'm not quite sure on that AT hour piece on the annual leave that you mentioned. But if they're doing less than 20 hours a week, they'd be on the reduced JobKeeper at $750 in stage 1 or $1,200 per fortnight, if there were more. But if you are a Crofts the accountants, you've got accountants down the corridor from you. If you're working in the HR team there, Karen, then ask them as well.

[00:32:42.357]
Stig: This one is from Tanya. She says, "I missed your company at Friday lunch last week. Anyway, I had a question about calculating JobKeeper 2.0 payment tiers greater than 20 hours. For permanent part time employees, do I just count extra hours work that were beyond contracted hours because they are not, in a bit of brackets, usual or do I literally use the average hours worked in the month of February/June? Some stuff worked extra days, but it was not a permanent ongoing change."

[00:33:12.521]
Ed: Yep. So, I can't answer that, I don't think, not because I don't know the answer, but because I think it's probably an accounting question that I'd love to answer, and I apologize for not... You said you missed lunch from me. You might say stuff like that, and you can't answer my questions anyway. So I'm sorry, I'll get in trouble if I start trying to unravel that for you.

[00:33:36.597]
Stig: Yeah. This is from Diane, Hired. "Do we need to register for JobKeeper 2.0 or does it simply flow from JobKeeper 1.5?"

[00:33:44.917]
Ed: So you need to have registered. So I was just looking at the ATR website, which is pretty well set out and will set out the process for you.

[00:33:54.166]
Stig: From Roberta. She's a client. "I have an employee on leave without pay, and has to be made redundant. Do they accrue annual leave while on unpaid leave?"

[00:34:05.169]
Ed: Hi, Roberta, thanks for your business. So employee away on leave...

[00:34:12.558]
Stig: On leave without pay.

[00:34:13.768]
Ed: Without pay, and then they're about to be made redundant. So, it depends on the basis that they're on leave without pay and also need to check on your award as well, Roberta, given you're a client rather than try and guess those things now. We'll pick up the phone to you today and speak to you about it.

[00:34:31.753]
Stig: Ben says, "Hi, Ed. I have an essential worker who had to make some deliveries recently in areas that are known hotspots. He has since been back into the workplace. If he were to be infected with COVID, would I automatically have to shut down?"

[00:34:47.295]
Ed: So the way in which it would ways back in the workplace if he were to get infected with COVID. The reality of this is that the process goes something like this. If he would show any symptoms, and he's entitled to do it without symptoms as well, he would and should go and get a test. In that testing process, you get about a 24 hour turnaround that the employee is required to self-isolate during that time, so they wouldn't be in your workplace. Now, if that test came back clear, you'd be fine. If that employee's been in the workplace and they came back positive, there's a sort of machine that takes off, regardless of which state you're in, by the way, that suddenly kind of takes control of what you need to do in your workplace. And it depends very much on the features of your workplace, how it's set up, have you got separate operating functions and so forth. But basically the Department of Health in your state takes over and you'd find out from them. But there's no need to shut anything down or anything like that at the moment. If the employee's been there, you might say, "Can I recommend that you go and get a test?" You cannot force them to do that. And if they do and go get a test, they'll have to self-isolate until they get the result.

[00:36:04.381]
Stig: Right. From Rose, "Hi Ed. I have a highly qualified employee whose duties I'm trying to change. To be fair, they are menial tasks below their usual pay rate, reception, invoicing, etc. But we just don't have the hours right now. We're JobKeeper eligible, and I believe I have the right to direct the employee to do these. They are pushing back and resenting the change in duties. Do you have any advice on this?"

[00:36:29.989]
Ed: Yeah. So hi, Rose. So, we're talking under JobKeeper 1.0 I'm assuming. So you've got an employee who is receiving JobKeeper. You want them to do the same hours or some of their hours doing other tasks, and they're saying no. So, you can ask them to do that, as long as that's sort of a reasonable request. So the debate around it becomes, is it reasonable or not? And it should be reasonable in the circumstances. And really, we've said it on here before that most of the answers to problems like this are not found in legislation. They're found in communication. So, why is the employee pushing back? It's probably not because of the meniality of the task. In my experience of these things, it would be normally because they don't understand why they're being asked. They don't understand the bigger picture. So my recommendation would be to sit down and have a bigger picture conversation, what I'd call a why conversation, to sit down and explain to them, you know, how we need to mark in and this is part of that, and can we all play our part? And see if you can get through it that way, And if you can't, then you might escalate into a dispute, but try and solve these things in those ways first before rushing off to legislation and websites.

[00:37:47.029]
Stig: Ed, this question from Mark, a question about the consultation process on redundancy. "Does that give employees a sense of false hope? For some of us, redundancy might be a fire complete. How do we approach this properly?"

[00:38:03.606]
Ed: Yeah. Hi, Mark. So, yeah, I agree with you, I've always... I'm less black and white about this than I used to be. I used to be a barrister doing employment law stuff in the UK. And so I'd always see these cases of where we would be arguing that someone did or didn't go through a consultation process. And that made the dismissal fair or unfair. And I always used to think it was ridiculous at that end of the chain. In what world does an employer really sit down and say to their employees, "Can you tell me ways in which we can avoid this redundancy?" Surely, they're the business owner. Surely, they're the ones that have really made up that decision, so they're just window dressing for the sake of a bit of legislation that makes no commercial sense.

[00:38:46.878]
And there is an element of that. Particularly, I think, as you get into smaller business, like, where you have someone that is in...if you think about the business owner, typically is in receipt of all sorts of information that they know about the business, its economic position, financial position, as well as the forecast of that position, and what's gonna happen. And they've just got more information at their fingertips to then go to someone in an individual role and say, "I'm consulting with you see what we can do to avoid redundancy," It seems like a bit of a one sided conversation. But there are circumstances in fairness, I've come to understand as an employer rather than as a barrister, that you will get good receptive, constructive conversations. And it might be, for example, there are two people doing the same job, can we look at job sharing? And the answer to it, "Maybe no, you can't or it doesn't work or the other person doesn't wanna do," whatever it might be. But they are valid points that should be considered before you go and take away someone's job from them. So, look, the short version of that is, it can, not done properly but do try to go into consultation with an open mind because otherwise you are really just window dressing.

[00:39:58.374]
Stig: This one from Karen. "If you're starting..."

[00:40:03.792]
Ed: She's back from Crofts. She's got me again.

[00:40:05.480]
Stig: I think you'll find this is a different Karen, different tone. "If your staff are only being paid for JobKeeper hours only, that is 10 hours instead of their normal 40 hours, should they be accruing holiday leave on the 10th or the 40th?"

[00:40:19.425]
Ed: So they're stood down at the moment?

[00:40:20.915]
Stig: It doesn't say.

[00:40:22.492]
Ed: Okay. So it depends... So what's basically happened has been a variation of the contract that says that they're only doing 10, not 40. And typically, what would happen there is that they would only accrue only 10 that they are doing.

[00:40:40.639]
Stig: Okay. This one is from Janet. She says, "Ed, you mentioned in your early streams about communicating with staff and your approach. How does that work for you now that the crisis is lasting longer than we initially thought and it won't be finished before Christmas in all reality?"

[00:40:56.568]
Ed: Yeah, really good question. It feels like it's a staged one. There was actually someone from Employsure asking me... It's something that I've be dealing with this week. It's a real one. There aren't any staged one, I'm aware of. So I say that... I smile, Riley, when anyone starts a question with you said in earlier, "Oh, what if I said? Maybe I've contradicted myself there." No, I was just thinking this this week. So I do a daily post to everyone on our internet, and I'm now at post 135, which you can see from the amount of people that like it, less and less people, I suppose in the business, they're getting a bit less interested. And, you know, I suppose you could put an argument together to say, "Okay, then stop doing it." But to my view, and the litmus test I use about communication is your only communicating well when people no longer need to hear it because they know everything you're gonna say anyway. They haven't got any questions. And so I try and keep it fresh. And I do things, just this week, I've changed the rhythm of how I do my daily updates. I actually do it on Wednesdays, do a thing equivalent to this live stream, where I just do a Q&A with staff. I have a session with them where I call it a white carpet session.

[00:42:18.164]
I don't know if I've done that metaphor on here before, but I'll do it in a second just to explain it. But it's basically a sort of honest, true Q&A session where I promise not to hold the punches, and people ask questions. We did the first one this Wednesday. And I started off with a bit of a spiel about this white carpet thing. And then subscribe questions and there was sort of horrible silence. And I sat here for a moment, but fortunately, someone broke the seal and there was quite a flow of them. But for a moment, I thought, "You know what? I don't really care if there aren't any questions. That probably shows I'm doing a reasonable job that people aren't unsure about anything." As it turns out, they were unsure about a few things. But I went through those with them. And I'll continue to do that every week. But that's just... So I'm now doing a daily post.

[00:43:01.515]
But on Wednesdays, I do the Q&A. And you could look at using tools like that within your business, an open door session. You know, always think about those, you know how MPs have, I think they call them surgeries where people pop in and ask them questions, those sorts of things just to try and keep it fresh. But ultimately keeping communication going. Look, I wouldn't come back to doing this if I didn't think there was a need or purpose to it, despite the fact the crisis is going on so long. If anything, actually I think it's more necessary now. And it's important that we as business leaders show the discipline now to really drive through this crisis. If you're giving up in any way could be misinterpreted.

[00:43:44.641]
Just briefly on the white carpet thing, there's this business metaphor that is meant to be a true story, I suppose. But it's probably not. The story goes something like this. So Panasonic, the technology business in Japan, they've got this wonderful glorious headquarters, apparently. These guests walk into the headquarters one day, and in the reception area, there's this gleaming white carpet, where all the foot traffic from people coming to visit cross. There's a guy on the floor on his hands and knees with a bucket and some soap and he's scrubbing away cleaning the white carpet. And one of the guests says to him, he says, "Oh, you've got a difficult job. Wouldn't it just make it easier if you just put a dark carpet down and you wouldn't have to clean it all the time?" And the guy looked up perplexed from the floor and he looks at the guest and says, "But if the carpet was dark, then you wouldn't be able to see any of the stains." And we talk internally here about being a white carpet organization. There are no secrets there. We operate on an objective and transparent, and fair basis. That's what I've been trying to do during the crisis, I suppose. I'm not keeping secrets from anyone. Secrets cause confusion, cause doubt, cause people to start rumoring and cause dissent. So, that's the approach I have been taking and I'll continue to take.

[00:45:15.976]
Stig: Ed., this is from Jill, she's a client. "We have a staff member going on WorkCover this week for surgery for approximately five weeks. We are currently on JobKeeper. I contacted our insurance company regarding payment, etc., and they've said that JobKeeper to them is not classified as income and still have to pay WorkCover regardless, do we have to cancel his JobKeeper temporarily or leave as is? They have said he's entitled to both.

[00:45:43.400]
Ed: I don't think there's an entitlement but there's a carve-out in JobKeeper for anyone being paid WorkCover that's entirely off work, so they can't double-dip on them. So that WorkCover takes over.

[00:45:56.245]
Stig: Okay. And this one from Linda, she too is a client. "Hi, Ed. Do you need to provide your staff with any documentation now that JobKeeper 1.0 is finishing and we won't qualify for next JobKeeper 2.0?

[00:46:13.650]
Ed: Hi, Linda. So, really good question. So, the documentation should follow the process, so to speak, in that if you've got people stood down or any other variations, their usual terms under JobKeeper 1.0. And you're not gonna be JobKeeper 2.0 or you're going to be a legacy employer, have a check of that, then you would need to bring them back from any stand down or variations. You don't have that power anymore. But you do if you're a legacy employer have a reduced set of powers. So you basically would, in effect by process, you would bring them back then send them away, again, subject to the rules around legacy employers and so on. Or you might bring them back and just have them go back to their normal work. But the documentation which our advice team can provide you would be making sure that you follow the process in writing. So you'd be saying, on this date, we stood you down under JobKeeper enable directions. Those directions come to an end on 20th September, please, therefore, return to work on Monday or whatever it might be that you're intending to do. But please speak to our advice team to get specific advice about that.

[00:47:20.403]
Stig: Ed, this one from Steve. He's a client. I have an employee who is regular and systematic, that is historically one to two days per week. Since March, the employee has been full time schooling her children, which one has special needs and needs constant focus and structure. If I asked them to vary their tasks and hours to outside our business hours, and they work weekends and/or evenings to work an average of one to two days a week. Does their award penalty rates apply? Or does JobKeeper directions allow this time to be calculated at normal hourly rates, as they are not available to work their normal day's hours as a regular and systematic routine? I'm keen to understand how the award/penalty rates work here.

[00:48:02.769]
Ed: Hi, Steve, really good questions. So you might have seen a bit of wrangling in the media about this about. Okay, JobKeeper enable directions allow you to do certain things. But what about the fact that awards also have maybe conflicting rules with that. So the classic conflicting rule that you might be suffering here is that pay rates outside of work hours on weekends and so on, will be at a higher rate. And that may be more than is being provided for under JobKeeper. You're asking me essentially, do I have to go and top up that money or not? The answer to that, unfortunately, is it depends on your award. And, again, Steve, as a client will get in touch with you to make sure we go through that. It may be that there's some temporary flexibility afforded under your award. And maybe that flexibility is coming to an end at the end of September, we'll need to look at all of those things for you.

[00:48:57.524]
Stig: Time for one more?

[00:48:59.546]
Ed: Sure.

[00:49:00.438]
Stig: From Isabella. We have employees in Victoria who has stood down on JobKeeper, our business is deemed an essential service and is able to deliver some services. However, employees have refused to work. What do you recommend?

[00:49:15.938]
Ed: Hi, Isabella. Not an uncommon problem both Vashi and Victoria and outside. So the question if you reverse it is really am I entitled to ask those employees to work? And if you are in some form of a central service in Melbourne at the moment, and you've got some subjects certain restrictions and ability to operate, then yes, you're entitled to ask those employees to come into work. Now, as a starting point, I suppose just using your judgment and empathy as an employer to work out whether there are ways in which you can do this without people who might be fearful of coming into work doing it. Classic scenarios I've seen over the last few months are you know people that live with elderly parents or grandparents, they're worried about being out in the community and bringing back. So there are circumstances that you might as a human, I suppose, look at and say, Look, "I understand it. Let's try and work around that," right through to the other end of the spectrum, which is kind of just people pulling your leg and just not wanting to come into work. And the way best way to address both of them really is to have a, what I call earlier in a response, a why conversation, you know, why do I need you to do this? Why am I allowed to ask you to do this? Why do you say that you can't do it, just trying to have a good frank white carpet conversation with them about that in order to if the right thing to do persuade them to come back in. If they're not going to respond well to that reasonable approach, you might need to move from the carrot to the stick and start looking at disciplinary issues with them.

[00:50:52.304]
Stig: And Ed, just to wrap up with this comment. Nice one from Sandra. Just on the glasses, Ed, did you steal them from the latest Superman movie? We appreciate your superhero efforts throughout this crisis.

[00:51:05.774]
Ed: I reckon Superman's would have been more fancy than these ones, but there we go. Thanks, Sandra. Appreciate it. Cheers, guys. See you next week.

Fridays With Ed Live Stream - 4th September 2020

In today's live stream, Ed discussed the complexities of the new JobKeeper 2.0 system and also answered some frequently asked questions from viewers.

Fridays With Ed | Leading Through COVID-19
49:51
Ed: Hi, everyone. Ed here for our usual Friday session. I hope that you're all well. I am here. It's been a busy week covering some...you know, I ended up covering some subjects that have cropped up this week, particularly one of our old favourites, JobKeeper, has reappeared. We'll talk about that as we go through the session. We're also gonna spend a bit of time talking to you about this concept of the end of the office. There seems to be quite a lot of thinking about that in the media. I know that clients are starting to be concerned about what that means for them, any leases they have. It doesn't apply to every business, of course, but particularly office space businesses and people working from home, what they should do about that. I think there are some risks and costs that perhaps people have been missing that I wanna talk to you about.

Then I'm briefly gonna talk about IR reform. There was some rumbling in the week on that. I think it's one of those ones, I think, when you're in receipt of so much information at the moment you can be worried about what's changing and what isn't. And I'll try and make some sense of things that you might have read in newspapers. And then, finally, we'll go on to our very own stick [SP] to get some questions at the end of it, and we'll go through that.

So, JobKeeper. Oh, sorry, one final thing we might talk a bit about, Victoria as well and what's going on there. JobKeeper. So, what you may have seen during the week was on Monday, I think it was, that JobKeeper 2.0 was passed into legislation. You could well have been forgiven for thinking it already had done, just the way these things get announced including. Everything in advertising campaign from the government gave the impression that JobKeeper 2.0 was already here. It wasn't officially until Monday and it was always subject to the twists and turns that go through the legislative process to working out what on earth it was gonna say. And it says quite a lot. It's not easy, and I will go through that in a moment.

I just wanna go through a bit of a kind of history to JobKeeper, though, without being too tortured in it. Just get us up to speed as to where we are because I think there are various steps that you may well have missed with JobKeeper and in any of them even if you're a JobKeeper expert. I think it merits a quick recap just so that we all know that we're up to speed.

I say my usual caveat before launching into that, that I am not your accountant. I'm not even an accountant. I am a workplace relations specialist. So much of JobKeeper sits at that nexus between financial support and employment relations because it relates to your employees, ultimately. So, where relevant or flag that I think the...if you need specialist advice from your accountant, you should go and get it. I'm telling you information that I'm reading rather than necessarily advising on financial aspects of JobKeeper.

So, remember, there was JobKeeper 1.0 as it's now become known, which is the JobKeeper that we are on and you guys may be on for your business. And that was the melee of questions around what does projections of 30% reduction in turnover mean, when did he measure it, how did he work out whether someone's a regular and systematic casual, when did they start work for you, did they qualify, were they eligible, all of that melee of stuff that in truth you'll have worked through most of those questions by now. Because you will either be getting JobKeeper or you won't. There's a risk, of course, that you could have applied for JobKeeper and you didn't because you were scared off by it or you mis-assumed something about the eligibility rules. And I suppose, in that case, you could apply for the final couple of September fortnights in order to get some money for that, but that's gonna be a small number review. The reality is, if you're on JobKeeper or gonna be on JobKeeper 1.0, you probably already are.

They then snuck in to the back of JobKeeper, this thing that I've called JobKeeper 1.5. And I'm banging the drum weekly on here at the moment to say, be really conscious. It maybe that you were entitled to a higher amount of JobKeeper than you are currently receiving. We may be entitled to have more eligible employees on JobKeeper because a few weeks back now, the goal post shifted where it previously had to be regular and systematic casual for 12 months or permanent employee by the 1st of March 2020. The 1st of March 2020 being the key date. And that meant that a lot of people...we had a lot of questions about people having...starting work on the 3rd of March. What happens if they were sort of regular and sort of systematic? How do you translate that? All sorts of issues about that.

A few weeks ago, they moved the goal post, say, actually, for the August fortnights and the September fortnights, you could be employed from...between the 1st of March and the 1st of July. So, if you started as a permanent employee between the 1st of March and the 1st of July, you could be added to JobKeeper. And if you were a regular and systematic casual for 12 months up to the 1st of July, you could be added. And those... That may, for some businesses, be a really significant change. I know it's a huge change for us here. We're the best part of 70 employees employed during that period that we were able to add to JobKeeper to provide subsidy to them. So, it was a big thing for us and it may be for [inaudible 00:05:47]. So, watch out. Have a look. The August fortnights are now closed, but it may be that you got additional people that might be eligible for the September fortnights. As I said, if you need specific advice, you're obviously gonna speak to your accountant about it. But from workplace relations' perspective, have a look at when those employees started work for you.

Then JobKeeper 2.0. That, as I say, was passed into legislation on Monday. It hasn't kicked in yet. It doesn't kick in until the end of September, beginning of October. And really quite bizarrely with it, and maybe I'm probably wrong starting with JobKeeper 2.0 because no one seemed that bloody interested in it, frankly. I was amazed that when it got passed into legislation on Monday, I'm thinking the financial review, it had only merited sort of one column inch on page six, I think it was, which is quite remarkable when it's meant to be costing another $100 billion to go to employers. We're now in a stage in this crisis where that barely mentions a merit in the main financial newspaper. Anyway, it is a big chunk of money. It is a big level of support for certain types of businesses. So, we're gonna talk a bit about what we know, but perhaps more importantly, what we don't know, and then finally, what the banana skins or problems with JobKeeper 2.0 you should be watching out for are.

So, now, with JobKeeper 2.0, the eligibility changes for it. So, it's no longer this projected 30% down in turnover. You now need to have suffered 30% reduction in turnover for the September quarter to initially qualify. So, that's the quarter ending in September. So, you'll need to speak to your accountant about whether you have suffered that particular level of turnover. It's not as it was first suggested it was going to be, a turnover test relating to two quarters. They reduced it just to that September quarter for the initial period of JobKeeper 2.0. And then they'll look again at the December quarter to see if you get it from January to March. So, you need to have a chat to your accountant about that.

There's also a bit of confusion about which employees are eligible. Now, I am doing some research on JobKeeper 2.0. I've read various blogs, particularly with some pretty, you know, well-regarded and top-level law firms who I think have got this wrong. They've confused JobKeeper 1.5 and JobKeeper 2.0, thinking that the 1st of July date is the eligibility test. So, we've got to work through this and work out and we'll get some... You remember the last time, there came out a series of explanatory notes to see about the employee eligibility tests. So, watch this space on that.

What we do know is there's gonna be some tiered payments. Initially, all of it is gonna be less than the $1,500 a fortnight that people are currently on regardless of their hours of work. It's immediately [inaudible 00:08:56] end of September, beginning October that it's gonna go down to $1,200 a fortnight or $750 if you've done...if you're less than 20 hours of work a week. And then, beginning of January, it will go down again to $1,000 and $650. So, there's some sums of money changes as well that you'll need to be aware of. But otherwise, it largely works the same for those businesses that qualify.

One of the big changes, though, is the question of directions, and this is really our field of expertise here. You'll remember that JobKeeper 1.0 gave employers a really high level of rights against their employees where they can stand them down. They could shift their hours and days of work. They could even shift their location of work and their duties, subject to certain requirements on consultation. But they could do it basically unilaterally. They could also send them on annual leave, subject to leaving them with a couple of weeks of leave in the bag. So, it gave these employers, us employers, a really high degree of rights that they've never had before. And there was a lot of debate about whether employers would get to keep those rights even if they fell off the JobKeeper wagon, so to speak. We are an employer that has now fallen off the JobKeeper wagon. We won't get JobKeeper 2.0. And we were for watching for interest to see whether we'd keep those employer rights there.

And what has been said is that you need to have suffered a 10% reduction in your turnover for that September quarter to keep some form of right on the JobKeeper-enabled directions. Those that are still on JobKeeper 2.0 get to keep the majority of the rights. I'll talk a bit about the difference in a moment.

But what you're starting to hear from me...and if you think you're confused now, just try and go online and have a look at what the difference in...whether you're a legacy JobKeeper business or you're a JobKeeper 2.0 business or whether you're a non-JobKeeper business. There is huge amounts of complexity and confusion. Remembering that mantra that I bang on about on here, which is to always try and communicate in a clear, consistent, and concise way. JobKeeper 2.0 just isn't that. It's big, fat, complex, messy. You've got to work out which type of business you are, whether you're a non-qualifier, a legacy qualifier or a JobKeeper 2.0 qualifier. A series of rights and obligations flow from each of those categories of employers. We'll no doubt answer some questions on that.

So, what don't we know at the moment? Gotta get some clarity around eligibility for employees. We don't know the specific dates on which you're gonna have to have paid or satisfied what's known as the wage condition to recoup JobKeeper. Lack of clarity around childcare. You remember in the middle of, I think it was, July, childcare was removed from the JobKeeper scheme because of other subsidies. So, getting those subsidies have now ended. What's gonna happen to childcare in JobKeeper 2.0? A bit of a lack of clarity about enforcement and being legacy business. What's gonna happen if you are, let's say, a business that was down 10% in the September quarter? And that changes over the course of the quarter. Does that mean that you can still stand people down, or do you have to bring them back to work, and all sorts of melee and mess that I think will flow from this.

We don't know the exemptions as to how you will qualify for JobKeeper 2.0 if you're not a normal shaped business. What happens if there was some extraordinary event in this September quarter that means that you're not down by 30% this year, but you are on a quarter on quarter basis or something like that?

So, those are a few of the things we don't know. On the directions, what we know is this. You can, if you're a JobKeeper 2.0 business, still stand people down. If you're a legacy business, you can only stand them down to 60% of their hours. That's a big change. You can change the days and times of your employees' work if you're a JobKeeper 2.0 business. If you're a legacy business, you can, but they can't work less than two hours in succession. You can change the location, whether you're a JobKeeper 2.0 business or a legacy business. And you can change the duties, whether you're a legacy business or a JobKeeper 2.0 business. You can't enforce people to go on annual leave anymore. And generally speaking, for all JobKeeper 2.0 and legacy businesses, these JobKeeper-enabled directions, suddenly, you need a seven-day consultation period rather than the shorter period that was previously in place.

So, there's a lot there, guys. A lot, a lot. We'll answer some questions on it, I'm sure. And I'm sorry that it's so confusing. It is a frustration. Confusion doesn't breed certainty. It doesn't breed confidence in the business community, but there is a lot of information there to digest.

What are the pitfalls? A couple of flags to put in the air if you're even at this stage. So, bear in mind that the way in which it will work out if you're eligible for JobKeeper 2.0 is through your September quarter BAS information. And the requirement to calculate that is gonna be earlier than your BAS due in October. So, you're gonna have to do your calculations through your bookkeeper or accountant earlier than you might otherwise.

You've got the same risk that we previously had of signing off a load of people as long-term casuals and then finding that because you've just admitted you employ long-term casuals, you actually owe the manual leave and sick pay and things like that under the Rossato decision. There are eligibility issues that are gonna crop up, and then there's gonna be all sorts of HR employment relations issues with people that...you know, do you need to...people that are on JobKeeper 1.0 at the moment, do you need to bring them back to work? Now, what happens if you're not sure if you qualify? How is the intersection between or the cross-section between...crossroads between 1.0 and 2.0 going to work? So, it's a lot of mess, guys. We'll try and work our way through that for you now.

So, moving on from JobKeeper 2.0, we will come back to it in questions, but if the newspaper's right, you're not interested in it in any way, so, maybe [inaudible 00:15:47] and I've just been prattling on about the confusion of it for no reason. But I'm gonna talk about something that you might be more interested in. It seems to be ringing some bells for people, those that we're speaking to, which is this concept that the office work has ended or has changed seismically and will never go back to the same way.

Now, not everyone works in an office. Some of you may have office space businesses. Others may have businesses with an office element, and you may well have consequently people working from home at the moment or who have worked from home at various stages during the crisis. Now, there's a lot of talk, I think, about...from an employee perspective with people saying, "I never wanna go back to a stinky office again." From an employer perspective, maybe some dollar signs going off in your eyes about the fact that you can save some money on rent and so forth. Now, I think that there are a couple of things that employers are typically getting wrong from those that I'm speaking to and some of the big employers as well I'm reading about.

First of all, I think that employers are letting the tail wag the dog on this issue. Now, if you think about employment law in its most basic sense, when you're studying employment law, what they tell you is that it's all about the concept of what you call a master versus servant relationship. Very old-fashioned language, highly inappropriate language in the workplace today. If I told the guys sitting here that they were my servants, I suspect they might start throwing things at me. But that's the way employment law works. What it really means at the heart of it is that the employer controls the employee. That's a very fundamental aspect of employment law. Control takes a number of...has a number of aspects, but it includes you, subject to an employee's agreement. But they wouldn't kind of work for you if they didn't agree, having them work in certain places, doing some duties, doing them in certain ways, determining which tools of trade they use for it and so forth.

Now, amongst the other things that have gone mad in the midst of COVID is that a lot of employers seem to have forgotten that. They now seem to be saying to employees, "Do you wanna come back to work?" And employees are great...with great amazement, the employees seem to say, "No, thanks. I don't wanna sit on horrible public transport for two hours a day. I'd much rather work at home in my pyjamas. And my life just got a lot easier."

So, in my view, employers have been asking the wrong question. They haven't been asking a master question. They've been asking it in a way that allows the tail to wag the dog. And they've been asking people what they want to do rather than asking what the business needs.

And, fundamentally, I've talked before about your obligation as a business owner to your shareholders, which might be yourself in small businesses. But you have a fiduciary duty to act in the business' best interest, which hopefully, coincides with your employees' best interest. But it might not. It might be that your employees don't wanna come into work at the moment, but actually, either for productivity reasons or whatever reasons you want them to. And you're entitled as an employer to request them to come back, subject to the social distancing that's going on in different states and so on, and subject to it being a COVID-safe workplace, but entitled to bring them back in line with their workplace obligations to you, their contractual commitments to you. You're not required just because they went home for COVID to allow them to work forever at home.

In fact, I don't think you should. Sometimes, you should, but in some occasions, I don't think you should. And the reason why is, I think that there are two particular problems that people are missing with work from home at the moment. The first which has become more and more part of the debate is risk. So, as soon as you say yes to someone working from home, their home becomes your workplace for which you are liable for any injuries that they're suffering in that workplace. That's your health and safety obligation. You're required to provide them with a safe workplace.

So, you'll need to conduct risk assessments and so forth for them working from home. Some of you may have got up to speed with that already, but I struggle to believe that everyone is being risk assessing. And I know from our own clients where we found gaps in this, people risk assessing work from home in the way that they should. So, you've got risk of injury and the things that are associated with that that you need to consider with work from home.

There's also the things that flow from that. So, you got the code compliance cost of going and assessing people's home workplaces. You've got the potential workers' comp cost of increased claims, but also increased premiums. I suspect workers' comp insurer [inaudible 00:20:39] if they haven't already. They're gonna need to say, "Hang on a second. This business used to have one workplace. It now has 10 or 15. Surely, their premium dynamic has changed." And so, I struggle to believe that that won't affect premiums going ahead.

And then, finally, I think you're going to end up...and this is spilling into the other problem with work from home is that where you have health and safety needs, you're going to end up spending money on extra equipment for your employees working from home. And that's, to some degree, the hidden cost, I think, of working from home. So, most of you will already have a space for the employee to work in the office, which is where they were before. And you may be coming to some arrangement that they work all or some of their time from home. As their employer, as their master in the master-servant relationship, you're obligated to provide them with their tools of trade. You've got to keep them safe. So, that might mean providing them with an ergonomic chair or a proper desk setup. But you've also got to enable them to function.

One of the big...almost the elephant in the room that I'm seeing at the moment is this. I'm amazed that more employees haven't turned around and said, "You owe me money for my internet bill." And the reason I don't think they have so far is because I think most people have been mucking in and just getting by during COVID. But as soon as those relationships turn into relationships where they are long-term working from home, either full-time or part-time or part of the time, there's a real risk, I think, that those employees turn around and say, "You need to pay for my internet." You turn around and say, "No, no, no. You've already got internet." They say, "Well, I didn't buy that to do work on it. And to be honest, I don't feel like I need it. I'll just do it on my phone for my home streaming purposes and whatever else. And actually, my TV got [inaudible 00:22:37] contract I don't need other than the fact that I work from home." And you might say, "But you asked to work from home." And the quite legitimate response from an employee would be, "But you agreed to it. You said yes. And in doing so, you created a home workplace and you're obligated to provide me my tools of trade for it."

You know, I cannot think of a worse nightmare than being an employer...in our case, we've got about 900 people. I'd hate to think that I was gonna be responsible for coordinating 900 home internet plans and having some sort of legal liability for them, let alone the day-to-day cost. But all of those sorts of issues just haven't really bubbled out yet. I'm sort of amazed, by the way, that big landlords have managed to put together a decent scare campaign in the media to say, "Guys, what you don't seem to realize is this whole work from home resolution comes with a cost." It's not costing you [inaudible 00:23:31] unless you're saving money on your office space. If you've got a space for the employee at work, and you're having to pay for them to work from home as well, you're about to get whacked with a big lump of money at a time where you frankly don't need the burden of any extra cost.

So, some of you might have questions about that. I know I spoke about it yesterday on a webinar to a group. I think a lot of people were surprised to say, "Oh, crikey. It might have a hidden cost." And I might end up thinking I was gonna save money and have great staff engagement and retention. But actually, the tail has wagged the dog and I'm going to end up with a big bill for all sorts of things like chairs and IT and internet and so forth that I didn't know I was going to.

So, there's a bit about the end of the office. IR reform, I'm gonna talk about briefly. I always urge people to sort of read papers, the newspapers on IR reform with care. There's so much preliminary debate that goes on in industrial relations reform. You might know that there's been a committee that's meant to be sort of bipartisan or multipartisan just sitting down and talking about how industrial relations should change. I've been quite cynical about that committee, to be honest. I think that they're talking a lot about big business problems, not much about small business problems. They've just released their report on it and they...a sort of classic red tape-y governmental response to it all. These things really frustrate me, I'd say.

They basically said, "Look. They system's so crap," that the only way we're gonna solve it is by having what they call regtech, regulatory technology, which is actually gonna help small businesses understand their obligations. So, instead of actually solving the system, they're doing this thing that I see a lot of more old-fashioned businesses do. And they think that there's some sort of mythical unicorn-y technology thing out there that solves problems, that you can just somehow plug it in and miraculously no one will ever underpay wages again. So, instead of actually going back to the root cause of the problem which is a series of overly complex legislation, modern awards, and solving that problem, they try...they say, "Let's put a technology near over it and that will solve it." I've never seen technology be successful in that way, frankly. That's not how technology works.

I think everyone thinks it's a group of sort of people who have massive brains driving around in Teslas in Silicon Valley that can just magically create technology and solves these problems. We've actually got to go back to the problem itself and solve it. Technology can facilitate that solution, but you've got to go to the root cause of the problem to solve it, which is the modern awards systems broken for small business. It doesn't work.

So, don't expect any changes soon. There'll be lots of debate about that and a group of people that are not business people sitting in a room saying there should be a technology solution seems like a pretty unlikely group to actually solve that.

The second aspect of it is that the Fair Work Commission came out during the week and said that they suggested more flexibility in awards, which seems to be something that's been well received by people. I think there was a 12-page draft clause to amend awards. Again, missing the point. To be honest, that level of complexity only shows how rigid the system is. The system does not work in modern workplaces that might have been affected by the coronavirus crisis, but also might have more and more impacts like this in the future where we need flexibility. We don't need rigidity, which is what the current system provides. So, there's a lot going on which is not really new news to say that the current system doesn't work. But I don't foresee any imminent changes to that that actually can help you out with small business owners. So, that's stuff on IR reform.

Finally, on Victoria. You know, I'm not a new service here and I can't tell you what's going through Daniel Andrews' mind. But what I am doing here for our business is preparing for the worst, as I always have been. And I'm staying true to that. My expectation is therefore that they're gonna have some form of extension of their current lockdown process. And I'm trying to make sure I'm prepared for the fact that we're gonna have a group of people that are going to be stuck at home, which operationally will mean that they might not change things much. But with my hat on as an employer and someone that cares about our people, I'm very worried about them being stuck at home and what that does to them psychologically. And we're trying to do things here in the business to help keep them engaged and as optimistic as can be, going through that time. But let's watch the space and see what happens at the moment.

There's some talk about...rumour about some form of traffic light system by which Victorian businesses might be able to reopen. But amongst all the other complexity, that just sounds a bit of a worry to be just trying to work out JobKeeper 2.0, let alone trying to distill yet another traffic light system which tells you how you're going to operate. But let's not speculate until we see something over the course of the weekend.

So, that is it for me in terms of my chat. Stewie [SP], over to you in terms of some questions please.

Stewie: Ed, a couple of comments to start. Wayne says, "Is that the COVID bat behind you?"

Ed: It is. Yeah. Everyone mocks my fancy piece of artwork. I thought it was quite sort of cool and showing me to be a multifaceted [inaudible 00:29:22]. Yes, it is the COVID bat, as it's become known.

Stewie: This is coming from Karen. "Oh, Ed, Ed, Ed. After spending lots of time with your staff this week, I thank you. A casual on JobKeeper refusing work says she can stay at her home and keep getting paid!"

Ed: Oh, Karen. I feel for you. You're not the first person to suffer that, won't be the last with JobKeeper 2.0. You know what? It gives me a good reminder to use that mantra that I hope we're all starting to use in our business, which is, don't bury your head in the JobKeeper sand. If you got some difficult decisions about who you actually need to do work and when, don't wait for JobKeeper to end to make those decisions. That's the way you wrestle back control of those sorts of situations. Really critically analyze your business needs in terms of your staffing needs.

Stewie: And Ed, just a comment from our esteemed colleague. There will be some financial questions today. It's not our area of expertise, and we do encourage people to speak to their accountants and registered tax agents. But we'll do our best on what we know.

Ed: Great. Yeah. We will. And in that sense, I suppose we're, as a business, getting to grips with the rules as we understand or the legislation as we understand them. So, really, we're just telling you what...providing resources, what you might find online yourself. If you need specific advice from your accountant, please go and grab that.

Stewie: Thanks, Ed. And just to kick it off. This is from Rory [SP]. Can you define legacy JobKeeper for me?

Ed: I can try. So, legacy JobKeeper. And this is something we're having to work out ourselves. You know, if you are a business currently on JobKeeper, you're getting JobKeeper 1.0. You are then able to access all the kinda legacy JobKeeper business if for the quarter up to the end of September your GST turnover is down by 10%, but not by the 30% that would be needed to become a JobKeeper 2.0 business. What does that mean for you? It doesn't meant that you get any financial benefit. That's a classic one that's really quite a muddle here. On the one hand, it's a financial question and you're needing to know if you're a legacy business by having the 10% reduction in turnover. But the consequence of being a legacy business is really an employment relations consequence, which is, if you are a legacy business, then you get the access to certain JobKeeper-enabled directions, which means that you can manage your staff in certain ways that you're not normally allowed to do.

The classic one is that you can stand people down unilaterally, albeit that what that actually means as a legacy employer is you cannot remove more than 40% of someone's time that they were working for you prior to the 1st of March 2020. So, you can only do a 40% hour reduction and there are certain extra notice requirements about that.

Now, what does that mean? Sorry I'm extending beyond the boundaries of the question. What are the areas or the pitfalls that we're gonna see regularly is this, is that you are perhaps a JobKeeper 1.0 business. You must be if you're going to end up being a legacy business. And maybe you've got some employees that are fully stood down at the moment. Maybe they're 38 hours a week, but they're not doing any work for you. They were doing 38 hours a week before the 1st of March, but currently, all you're doing is handing over to them $1,500 a fortnight to sit at home.

Now, as at the end of September, JobKeeper 1.0 finishes. So, in principle, they are no longer stood down. And the day after, you've got to work out whether you are a JobKeeper...sorry, a legacy JobKeeper business. In which case, you would be able to bring them back for anything over 60% of their ordinary hours, anything over 60% or 38 hours. You couldn't carry on keeping them on zero hours. You'd have to bring them back for at least 60%, which you might be saying...I'm sorry it's unpalatable to me, "I don't have the money," because you're not getting any JobKeeper anymore. So, you're being now told you have to switch them back on as an employee, essentially, for at least 60% of their time. And you're gonna have to fund that.

So, you might have some tricky questions that flow from that. You're gonna say, "I don't need them to do that role anymore." In which case, you're gonna have to start considering redundancies, and I urge you to do that soon because otherwise you're going to end up paying people to do at least 60% of nothing for that period whilst you go through a redundancy process, and you're gonna have a cost. If you get on with it now, you can actually use the remainder of the JobKeeper period to make those sorts of decisions.

Stewie: And Ed, this one keeps popping from week to week, this time from Liz [SP]. "We're in a process of a business sale. And a number of our staff are transferring to the new owner. As they are currently receiving JobKeeper, does this go across with them to the new owner?"

Ed: There are specific rules for the new owner to worry about. You wouldn't carry on paying them JobKeeper, but there's a specific qualification process if businesses are purchased. So, I believe that's the new owner to worry about and they can speak to their own accountant.

Stewie: This is from Mark. He's a client. "I have an employee who has overdrawn in sick leave entitlement that have just taken two days sick, knowing that they will still be paid through JobKeeper. Are we able to deduct from annual leave entitlement, for example?"

Ed: You're not if they say that they were sick and they were away on sick leave. Particularly, if they're certified, then unfortunately, that's the sort of loophole in JobKeeper that someone can be on unpaid sick leave but be receiving JobKeeper and actually paid. The loophole which too many people have worked out by this stage, to be honest. So, we're seeing that quite a lot where people are...let's say they don't want to turn up to work. Instead, they just say, "Well, I'm sick. I can't turn up." They get doctors to sign them off. Because they're JobKeeper eligible, you're left having to pay over JobKeeper for them to sit on their...they call it jacksie in England. I don't know if that's the phrase [inaudible 00:35:49] backside. Okay. Yeah. Good. That's a technical phrase. Not sure that's in the JobKeeper legislation.

Stewie: Ed, this is from Veronica. A variant of a question we're getting a lot today, a bit of a financial question, though. "For future eligibility, we are looking for a 30% downturn in comparing September 2020 quarter to what other period?"

Ed: So, the legislation says September 2020 to the same quarter of the year prior. Year on year, you're looking at. So, the big change is, yeah, under the JobKeeper 1.0 you can forecast the downturn. This is actual September quarter versus last year.

Stewie: Right. Ed, there's one from Susie. "What does it go down to in January?"

Ed: If you are eligible, then for full-time employees, it goes down in January to 1,000 bucks a fortnight from 1,200 at the start of October, for the October forward quarter. And 650 for 20 hours or less.

Stewie: And Ed, we're getting variations of this one, too. This is from Dianna. "So, we're on JobKeeper now. Is it still a predictive 30% loss or is it now only 10%? Turns out we did better in August than we thought. Is this a problem?"

Ed: Don't worry about August now. If you're already on it, you're on it. So, you're entitled... Remember we talked a lot back in the day about once you're on JobKeeper, do you stop going on it when it turns out things are going better than you were worried about? The way JobKeeper 1.0 works is as long as you legitimately forecast your reduction in turnover, then you keep JobKeeper even if as you see in the newspaper some companies have actually don brilliantly and better than they did last year and so forth. But they're still getting JobKeeper. So, that doesn't get switched off because you end up outperforming. So, JobKeeper for August and September will carry on if you're already getting it.

Stewie: Ed, Pam asks this. "Where would we find more information on the Rossato decision and eligibility for casuals entitlement to paid leave? It talks of retrospective. Does that include casuals that are no longer employed? How retrospective is this?"

Ed: Yeah. No, it's spot-on. It's a mess at the moment. In theory, you are retrospectively liable for your casuals, including those that are no longer employed. There's a limitation period on how far you can go back for claims, which is typically six years. So, in theory, there's a six-year back pay issue for current and ex-employees who are casuals falling within the Rossato decision. There'll be, I'm sure, a blog on our website to have a look at what that means.

It's a pretty technical issue though. You want to really start to understand whether you should be properly categorizing your people as Rossato casuals. And also, importantly, you need to understand what your financial position is. Again, I'd urge you to speak to your accountant. It may be that you're needing to provision in your accounts for liability even if you're not paying back those employees at this stage. My position is being in general that I wouldn't be rushing to paying back those employees because this is going through the high court. It would take some time to do that.

You might have employees that are wise to what's going on, coming to you and saying, "You owe me money." And technically, you do at the moment. But what you would be saying to them is, "It may well be the case that I do, but we're waiting to see what the high court decision says." And we obviously abide by the law as to whatever is said after that. Are they gonna struggle to accelerate payment any quicker than that? They might have a crack at trying to sue you. You'd frankly be going to court and saying, "Can I wait for the decision on the Rossato please?" And I think everyone would say yes. So, the reality is, I wouldn't rush to paying people back until the high court decision is being concluded, which won't be until next year.

Stewie: Ed, Jackie needs a little recap on what you were mentioning a little earlier. She asks, "Can you request that if employees want to work from home they have to supply their own equipment and pay for their own internet if they have an office or desk setup?"

Ed: Good question. Yeah. That's sort of what we've done during COVID and to some degree what we'll carry on with. And I think a lot of employers are quite surprised when I've been saying this because they're saying, "Well, that...I've got the setup here and they're just choosing to work from home. It's up to them." That's when this master-servant thing comes back in. So, you might feel like as an employee just allowing someone to do it, but in reality, what you're doing is agreeing to it. And you're agreeing, therefore, for that home space being their workspace.

I suppose you could say to them, "You cannot work from home unless you have the equipment at home to do it." And the answer is, "I don't. Can you buy it for me?" you might say, "Well, okay. Then you need to come back into the office. I'm not buying equipment for you." But if you're gonna allow them to work from home, you agreed for them to do it, then there is a risk...first of all, an obligation to make sure they're safe in doing so. So, you can't just let them sit on a bean bag with a laptop on their lap because it might result in workplace injuries. But second to that, you might end up with some mess in the future about, "Well, you know what? You guys, I've been using much more data than my allowance because of work. You guys have got to provide me with expenses related to my work. That's what my contract says. So, you need to pay for my internet or some of it," and so forth.

So, it's a bit of a minefield. The best I can suggest at the moment is to get some clear advice on it. Make sure your policies relating to flexible work or home work are very clear.

Stewie: Ed, there's one from Kristine [SP] with a few people following it. "With JobKeeper 2, how do we classify our employees on maternity leave as they have not worked at all? Are they entitled to payment at all? If so, would it be part-time rate or full-time rate?"

Ed: So, if they're on maternity leave but not receiving some parental leave benefit and therefore a JobKeeper so you're looking at the basis upon which they are employed which underlies their maternity leave. So, what does that contract say? You know, they would be full-time or part-time based upon their...whatever their engagement is even though they're on leave.

Stewie: And a phony issue for Joanne. "We have an employee who is just not coming to work and saying they are sick. They're not providing a certificate, but as they are a JobKeeper, they still get $1,500. Can we do anything about this?"

Ed: You can if they're not providing a certificate and you've got a policy in place with regards to when they're meant to provide that and so forth. Then you could start escalating that into a disciplinary process. Not gonna be a particularly rapid process. You'd have to invite them to meetings and so forth. But if they're simply refusing to engage with you and the proper sickness process, then you could end up disciplining and potentially even dismissing someone in due course. But you don't do that and click your fingers. Unfortunately, you have to go through a due process.

Stewie: From Greg and Bernie and Kent. "Hi, Ed. Who is liable to repay the overpayment of JobKeeper claimed in respect of an employee who is on maternity leave when the employer knew the employee was on maternity leave at the time? So, the employee has received both."

Ed: Okay. So, if they're on maternity leave and they were receiving some form of parental pay benefit and therefore shouldn't have got JobKeeper, technically speaking, you signed a form saying that this is an eligible employee and I want money for them. So, in principle, you guys, it's now in the employee's hands. So, what I'll do, just belt and braces, is flag it with the ATO and say that, "This is what's happening. What do you want me to do about it?" I suspect in the context that they're not gonna ask you to do much, but I don't know. To be honest, I'd go and ask them. And then if they say, "Pay it back," then you'll need to go to the employee and ask for the money back. You can't just take it off them in their future pay, by the way. That would be an unlawful deduction of wages. You have to get their permission.

Stewie: Okay. Thanks, Ed. This is from Jenny. "Hi, Ed. I have an employee working from home who seems to have suddenly developed a back and neck issue, and is off to see the physio. I'm worried that he'll try and blame it on his workplace setup, which is really just his home office or couch, for all I know. Am I liable in this situation?"

Ed: Potentially, yes, unfortunately. You've got an obligation if they've been working from home and that's been the arrangement with you. You've got the obligation to provide a safe place of work and that would involve going through a process of doing a risk assessment either by having an expert visit them or having them go through a remote assessment. If that hasn't been done, then that employee has been working in a way that is unsafe even though that might not have been your instruction, but it's been essentially under your watch even though you can't see him. Then there is a risk that you end up with a workers' comp claim. Yeah.

Stewie: And this is from Julie. "Regarding alternative rules for JobKeeper 2.0, do they exist this time around?"

Ed: I think they will. I've not seen anything that expressly says that, but I think they're gonna have to fiddle around with how those alternative rules work in terms of being... You'll remember that they're all to do with when you started your business and whether your business was purchased and so on. You're gonna have to shift some dates around to make sure that those alternative rules are effective for JobKeeper 2.0.

Stewie: This is from Cathy from Cheeky Monkeys. "Have you heard any whispers what the government may be doing to assist childcare businesses after the 27th of September? This is the date we are cut off from any assistance. Why has childcare been targeted when we are classed as an essential service? We're down over 50% in attendance still at this stage and after this day, I'll need to reduce staff. Such a waste after spending six months with JobKeeper to save their jobs and now I'll need to let them go. It's so sad.

Ed: Yeah. It is very sad. Cheeky Monkeys, good to hear from you again. It is very sad. It's frustrating. It just sort of feels like there's some torture [inaudible 00:46:32] going on there. I suspect, you know, the industry body has been involved with pushing hard to get the additional subsidy which is then led to the retraction of JobKeeper, which then, to my knowledge...I'm sure, you know, there are people at the center of the industry that are working hard to work out whether you're gonna get JobKeeper 2.0. But in the moment, you do feel a little bit exposed. You're not the first person to ask it. And if you're asking me, then other people will be asking in the corridors of power as well. And we should hear something soon, I'd say. But I can't believe anyone's intention is to disadvantage such an important service in our lives.

Stewie: This is from Caroline. "I have a staff member who I would have loved to have kept, but he was on a partner visa. His permanent visa has now come through. Could I get him back now on JobKeeper?"

Ed: Potentially, yeah, depending a bit on how long they were away from work. And you're essentially reemploying them. You need to check JobKeeper eligibility rules. Maybe they're gonna eligible for 2.0 anyway. So, yes. Yes, potentially. You need to check the eligibility stuff with your accountant.

Stewie: A fairly broad one from Shauna [SP]. "How does JobKeeper and maternity leave work?"

Ed: So, you can't basically double dip, is the basic principle. You can't get maternity pay or some sort of parental pay and JobKeeper. So, you need to declare that you are receiving that pay to your employer so that they didn't get away and provide you with JobKeeper as well.

Stewie: Time for one more?

Ed: Sure. Sure, sure.

Stewie: This is from Deb. "Hi, guys. How do we determine what JobKeeper 2.0 level an employee will be if they were on annual leave the whole of February? She's a part-time employee."

Ed: It will be based upon their contractual arrangement. If they were doing...they're on variable hours, I suspect we'll get some guidance on averaging or something like that. But typically, it would be on their contractual arrangement if they were on 15 hours a week. Then they're going to be on a lower amount. That will be the way that will work.

Stewie: A couple of comments.

Ed: You know, [inaudible 00:48:52] as usual. I'm a bit fragile, but [inaudible 00:48:56]. Don't need any [inaudible 00:49:01].

Stewie: These are brilliant. JC [SP] says, "Thank you, Ed. Your generosity in providing these webinars and seminars is greatly appreciated."

Ed: Thank you, JC.

Stewie: And then I'll scoot to this one, from Wayne. "Thanks, Ed. Happy father's day to all the dads for Sunday."

Ed: That's good. Good. I hope that my children remember, Wayne, just as you have. But we shall see. So, thank you, guys. And happy father's day. And see you next week. Please keep asking questions on here. We've got our advisers. Then finally, just before we go, have a look online and look on our website. I think the link has been provided as well to JobKeeper 2.0 guide, which is available to you all for free. Cheers.

Fridays With Ed Live Stream - 28th August 2020

In this week's live stream, coming to you again in partnership with Dynamic Business, Employsure founder & MD Ed Mallett discussed recent JobKeeper changes, paid pandemic leave, IR amendments, and redundancy.

Fridays With Ed | Leading Through COVID-19
51:13
Ed: Hi, everyone, Ed here for our usual Friday's session. I hope that everyone is well. It's been a relatively calm week in the context of the crisis. But there's still things to talk about and I'm gonna go through them over the course of today. Just to give you a bit of structure for the day, there are really five things that I wanna talk about.

The first of which is JobKeeper 2.0. Which a number of you will be concerned about trying to understand exactly what's going on, what's the mixed messaging in the media about that, and I'll go through what's going on there. The second is what I'm gonna call JobKeeper 1.5. I think that was a really poorly publicized extension of JobKeeper that a number of people have missed out on. I'll talk a bit about how we've worked it here and what it means for us just to give you a sense of that. The third is a narrow one, which is the advent of Paid Pandemic Leave, Disaster Payments in Tasmania. It's narrow, but it might be relevant to other states as well, it seems that the federal government's doing agreements with different states on that basis. The fifth one I'm gonna talk about is some IR amendments. And then finally, I'm just gonna do a sort of whistlestop tour through the concept of redundancy for you to try and give you a sense as to how you might go through a redundancy process, if you're starting to need to think about that in the context of preparing for the worst and maybe you're not gonna qualify for JobKeeper 2.0. I don't think we will do here, for example, and you'll, therefore, need to start thinking about your planning. And also some practical reasons to do that, which I'll come back to in a moment. I think that there are some tactics you need to start thinking about as employers at this stage of the crisis, which I'll talk to.

So, just quick shout out to Dynamic Business and those watching it through there today. Good to have you on board again. I'm really pleased that we're sharing some of this content with new viewers, and I hope you find it useful.

JobKeeper 2.0. So, I don't know about you guys, but I was driving along in my car the other day and listening to the radio and up came an advert on the radio, announcing JobKeeper 2.0. This is what's happening, it's extended till March, new payment levels, all of these things. And not a word of it was said with any caveat, there was no suggestion that this has not actually yet passed through legislation, instead, it was said with absolute certainty that this is what we can all expect and we can get. I find it remarkable, I have to say, that, you know, that level of frankly, misleading advertising in the context of JobKeeper that the government can get away with. I don't know whether they do it just to put political pressure on the opposition or something like that. And so we've already told everyone now so we've got to pass it through. But the reality is JobKeeper 2.0 still has not been passed through legislation. They...what has happened this week is that everyone was turned up in Canberra for a couple of weeks of sitting. And they've been negotiating, doing a back corridor deals about JobKeeper and seeing which bits might need to change pending actually being passed through the legislative process. But we don't have any certainty around it at the moment.

Somewhat amazingly on Friday, apparently the Senate doesn't sit, there'll be some archaic reason for that, but amazing in the context of this crisis, everyone's doing everything we can to keep our businesses going and the economy afloat. And these guys are having a long lunch on Friday, presumably. So, but the consequence of that is we're unlikely to hear any outcome today, we're gonna have to wait until next week now. Now, bear in mind that next week, we're into September, JobKeeper 1.0 finishes at the end of September. Three to four weeks in the context of business is nothing. And really what we're suffering I think at the moment is a lack of certainty about what's going on. So, unfortunately, I can't help with that. I can't create certainty where there isn't any. At the moment, JobKeeper 2.0 has not passed into legislation so you should not be banking on it hitting your account at the beginning of October. You should be preparing for the worst, but planning for the best. So, it may be that you have suffered the level of consequences that is rumored will qualify you for JobKeeper 2.0, which is a 30% downturn in your turnover for the September quarter, compared to this period last year, but there might not be as simple as that, there might be changes.

What we're seeing in terms of what's coming out in the media, it seems to be the hot topics of debate are these things. That there seems to be a bit of trading going on between this concept of the Industrial Relations extensions, you remember that JobKeeper 1.0 created these extra rights for employers under the Fair Work Act. And they were significant rights, really very significant rights, in that what it enabled you to do was to vary the hours that your people worked for you, you were even able to stand them down completely on a unilateral basis. There were some notice requirements, but basically, you didn't have to seek their agreement to do those variations. So, it gave employers quite a lot of power to act in certain ways towards their staff. And the debate has been this is that, as I understand it, on the liberal side, they are saying that those powers should extend for all employers that were qualified for JobKeeper 1.0 but won't qualify for JobKeeper 2.0. And the response by labor is "No, we think that those are powers, too extensive and can be potentially abused by employers who are now not in that bad position and shouldn't have abnormal levels of rights over their employees."

And the debate seems to be raging on that ground and basically Labor are saying, "Well, if you guys are gonna force that through then we're gonna be much more reticent in our support for the financial elements of JobKeeper 2.0." So, that's sort of horse-trading is going on at the moment where they seem to have got to but where they will land is anyone's guess. But where they seem to have got to is that there's now this sort of concession that only businesses with 10% downturn in their turnover for the September quarter, will be able to get some level of JobKeeper and Fair Work rights and so they will be able to unilaterally act against their employees. Whereas, those businesses that are doing better than 10% down on the September to the September quarter won't. We don't know that for certain yet. So, don't go rushing out making decisions based on it. But that's the nature of the debate.

One element of it, though, is that it really gets confusing if that wasn't confusing enough. By the way, it really gets confusing when you get to this stage is that Labor is also saying that if they're gonna concede to this idea of having industrial relations rights for any businesses that are not on JobKeeper 2.0. What they want is a flow in the amount of wages that you will have to pay your staff. So, it's been ruminated that you will, under JobKeeper 2.0, be able to reduce the hours of your staff up to 60%. Not all the way down to zero as you have previously been able to do, but you'll be able to do up to 60% down. And if you look at that on a minimum wage basis, so the minimum wage for a 38 hour week would be 750 odd dollars. If you reduce those hours by 60%, you'd basically get to $300 and what Labor is saying is you should have to pay those people, not $300, you should have to pay them $600, which is what they would be getting if your business was qualified for JobKeeper. So, utterly perplexing, to be honest, because that gap of $300 isn't funded by the government. What Labor seem to be proposing, therefore, is that you and I, as business owners, would be funding that directly ourselves, which in turn undermines the very purpose of being able to reduce the hours.

So, some really complex stuff in there. And this is why it bears not much sense for anyone other than someone that's an industrial relations keen on like myself who wants to understand what's going on, as they horse trade towards an agreement. There's not really much benefit in you guys worrying about it. And I hope that doesn't sound patronizing. I don't mean it in that way. But remember, we say on here that worrying is not thinking, you sitting there clicking refresh on those live feed things on the newspapers to find out what the latest potential horse trade is. Remember most of these are just rumors given off to journalists so they can write some piece about it. There's no point in worrying about that until we actually know what the outcome is. What we know so far is all of those ins and outs that are going on, the tos and fros on the negotiation are frankly just far too complex for business owners to understand and implement sensibly. What we're craving is a simple system that isn't filled with loopholes and tripwires. I think what we know by this stage of the crisis is that fundamentally people are very conservative when it comes to adherence of rules. It might not be true to absolutely everyone, but generally, in the business community, that if, for example, you said that people only get these industrial relations benefits if you're 10% or more down on last year. It's gonna cause a lot of confusion as to what 10% down means, how you implement that, what if I was 9.5% in one, you know, and all the things that we've heard before, are gonna create these problems.

And we just really want a nice simple system. If you then...if you were able to reduce certain hours, but then had to top them up with your own money and so on, is just mess. Mess equals lack of confidence. Lack of confidence is bad for the economy. And it's as simple as that. So, my hope and plea to the government is, get this done quickly. Get it done simply. I appreciate that you're trying to build the airplane after you've jumped off the cliff on your way down but we need to get this done quickly for the sake of businesses that in four weeks' time need to be working out very clearly what they're doing with their staff.

So, that's JobKeeper 2.0. I'm gonna rewind a bit though and talk about JobKeeper 1.5. Because I think that for some of you, as it has been for Employsure, you may be leaving money on the table that you need to go and have a look at whether you can recover. So, I'll give you a sense of this, in working in preparation for this live stream over the last couple of weeks, I picked up that there had been a change and I noticed a couple of you have picked it up in the questions you've asked as well. In the qualification date for staff that are eligible for JobKeeper 1.0, which is why I'm calling it 1.5. It moved from that first of March date which would all got quite used to the first of July. Now, maybe I was looking the wrong way or, I don't know, just didn't click on the newspaper that day or something but I thought that was incredibly under-publicized. It's quite a big shift, so what's that? Three or four-month shift in the number of people...in the people that you could claim JobKeeper 1.0 for.

Remember, back in at the beginning of April, when we were going through JobKeeper 1.0, there were loads of questions about what happens if someone signed their contract at the end of February, but they didn't start with me until the third of March. I think actually, the third of March was a Monday even so you had a lot of people starting on the third of March who didn't qualify because the date was the first of March. And all of those sorts of problems that meant that for those people, you couldn't get the $1,500 per fortnight. And that's valuable money to businesses when those people were people that were working. So you were gonna get a true JobKeeper subsidy that you were otherwise paying the $1,500 to them in salary yourself but weren't able to claim it back from the government, rather than people that were stood down and you're essentially passing on a social subsidy.

So, what happened is that the goalposts have been shifted for the August fortnight's going forward. And so, you basically get, I think, four fortnights that you're gonna be able to claim for people that started at any time up to the first of July, and for regular and systematic casuals, that becoming the 12-month marker. And that's a really significant amount of monies that, let's say it's just one employee, that's six grand that you're gonna get against the employee that falls into that period between the first of March and first of July as a starter. Six grand per employee. To give you a sense of it here, we had about 70 or 80 people start for us during that period. When you get your calculator out, that's $500,000 that's coming to our business that there was no notification through the existing scheme. So, the person internally that does payroll for us received absolutely nothing from the government to say that this has shifted. And there was no notification actually through the Bookkeepers and Payroll Association that provides information to professionals like that. They had no update to them at all.

And consequently, as a business, but for the fact that this is what we do for a living and understand that we're constantly looking at JobKeeper rules and so forth to see what's happening. But for that, we would have missed out on that $500,000. And fortunately, we have a team here that stays constantly looking at those changes and keeping on top of them, which in turn was able to notify, not just us, but also our clients. But you need to be really careful guys, really careful about this because you could be missing out on money. Six grand, essentially per person, a couple of people might have started for you at that time, that's 12 grand, 12 grand goes a long, long way at the moment. And you need to be going and looking at whether there's maybe some extra jobKeeper 1.0 that you can claim under 1.5.

That was the second thing I wanted to go through. The third one I mentioned Paid Pandemic Leave or Disaster Leave over in Tasmania. It's quite curious this one because you wonder why. So, first of all, they set it up in Victoria. And basically, the principle was that if you are required to self-isolate in Victoria, you could through the federal government claim back $1,500 for every time in which that occurred. But it was subject to the fact that you basically weren't getting money from anywhere else. You weren't getting any other benefits, there was no access to sick leave, and so on. So, it was meant to really get down to helping particularly casual workers, for example, to try and stop people doing what's known as presenteeism, turning up to work when they're feeling sick just because they don't wanna miss out on the wages. And so, that was done in Victoria. It's now being done in Tasmania. Why they have gone Tasmania, I'm not entirely clear, it seems to be to do with the fact that in Tasmania, there's been some agreement done between state and federal governments where presumably they will be chipping in as they are in Victoria for non-citizens, I think. So, people that are over on visas and so forth. So, but I don't know the nature of the deal, all I know is that that's come up in Tasmania, and it may come up in New South Wales. Queensland already has their version of it paid through the state but you might see it in other states coming up as well. So let's see, let's watch this space. Maybe the government tries to use it as some sort of bargaining tool to try and encourage borders opening because that obviously has been a bugbear over the last few weeks for the federal government.

Next thing, IR Amendments. So maybe this is just for those of just spend their time like me looking up things that are going on in the Employment Relations, Workplace Relations, Industrial Relations, whatever you wanna call it world. But you might recall that there are these committees sitting somewhere, talking about how they're gonna change industrial relations on the back of the pandemic. The tenor of those conversations don't seem to be going that well fairly predictably, we're not hearing any suggestion that we're gonna see any grand changes. I could, I think I did actually say on here that I would have betted on that. If I didn't, I'm gonna quickly bet on it now to say we will see nothing significant come out of those conversations. They've got the wrong people in the room. They don't have people speaking up with the voice of the majority of employers in Australia, which is you guys, small business owners. We haven't been asked to give you a sense of it. We have 27,000 small business owners as clients of ours, and no one has just paused to say, "What is it that you guys find most frustrating about the Australian Workplace Relations system?" I would have told them that almost 50% of our calls are around the award system. So, we're receiving over 1,000 calls a day, on average, about modern awards and how frustrated businesses are with trying to work out their obligations and duties under those modern awards to their staff.

But that, to me, is unlikely to ever even be near the table because they're not, like I say, speaking to the right people, instead, they're faffing around talking about enterprise agreements. Enterprise agreements only cover-up, I think, 10% or 12% of businesses in the whole of Australia. The vast majority of those enterprise agreements are with big organizations, big companies, well, in excess of 200 staff, you wouldn't typically have an enterprise agreement if you are a small or medium-sized business. So, we're spending day upon day banging on about enterprise agreements and people with the resources to actually work out how to deal with awards, instead of focusing on the real challenge at the small business level, particularly the micro level, people need some support for that.

That was a bit of a rant as much as an update so. Right, last thing before we move on to Stu's Q&A. [inaudible 00:19:03] Q&A, I've noticed someone calling him again this week. So, the last thing was the redundancy process. And I'm just putting this in as a sort of marker in these sessions. It's not for me to...you know, I'm not running around banging our redundancy drum saying, "Go sack your people." That's not my interest. And we, as a business, have openly said to our staff here that we will only make redundancies as a very last resort, even in the context of preserving cash, we are looking at reducing staff cost as our very last resort. So, culturally, as a business, it's not what we're rushing to. But it can become inevitable. It may become inevitable for us depending on how the crisis unfolds, and we have to prepare as though it might. And equally, you guys should be preparing on the basis that it might get to the stage that you need to go through redundancy processes if you don't qualify for JobKeeper 2.0, maybe that's pretty imminent. Even if you do, I'd encourage you not to become just an envoy for subsidies, passing on money to employees, rather looking at this critically and saying, "How do I best manage my business through the crisis." That's your fiduciary duty to your business, your fiduciary duty is actually, in law, trumps your duties to your staff, you've got to make sure that you are acting in the best interest of the business, not simply making sure you keep on your staff at any cost.

And there is another practical reason I'm predicting is something that you should be thinking about at this stage is that we're at the front end to some degree of the pandemic at the moment. I perhaps prematurely thought that we were on the way out of the woods in many respects and we've gone backwards clearly over the last few weeks. But we're at the front end of what the pandemic means for the business in the medium and long-term. We don't understand yet how people's views are gonna change, how the economy is going to change, and so on. What I would...I gamely predict though is this, is that people's tolerance for workplace outcomes that negatively affect them is higher today than it will be in the weeks and months to come. So, when JobKeeper 2.0 comes to an end in March, I think what you'll find is that people are much more prone to fight a redundancy at that stage and they might be at this stage if it's done properly and fairly openly and honestly. So, what you don't wanna do is keep putting off that decision just because you might be getting some JobKeeper subsidy. And then finally, you actually end up in a load of Employment Relations disputes when you get to them next March, just because people are much more hostile to the concept of redundancy. And remember, of course, if that goes hand in hand, with a significant decline in the economy, we've obviously seen some declines so far. But let's say that just keeps getting worse and worse, people are gonna be much more desperate to recover any sums that they think they might be due through a redundancy or failed redundancy process.

So, the whistle-stop tour that I wanna give, you know, there's no way that in a short session, I could give you the full ins and outs of redundancy. It's a very complex process that you need to be wary of. First thing to say is this, is that small businesses might not have to pay redundancy pay, it doesn't mean that they don't have to dismiss people fairly. So, I would present to you that regardless of whether you're obliged to make redundancy payments to your staff, if you make them redundant, you've got to look at doing it fairly. And I'd encourage you to go through this process come what may. And the first element of any redundancy process is warning your staff of what might come. Telling them collectively, or at least those that might be impacted by the potential redundancies, that you are considering making changes to the business which might result in their roles becoming redundant.

The second element that flows from that is that you then after the warning need to consult with your staff. So, you need to sit down and speak to them individually, typically, to ask them for their views on ways in which redundancy might be avoided. Now, in New Zealand, this gets...it's a really tortured process interestingly, that in New Zealand, the staff have a right to ask for some really quite detailed information about company financials and things like that. That makes a real mess of the consultation process. It's not such onerous obligations in Australia, but you should still be fair and transparent about what you are proposing to do. And I stress proposing because you cannot make the decision by this stage. That might seem totally artificial to a business owner to say, "Really? I'm not allowed to make decisions about the costs that I want to cut in my business without checking with my staff." And that's the reality of redundancy processes. A fair process means that you ask your staff and ask for their view, you've already formed your decision that they are going, and you're doing it as window dressing, you've got an unfair dismissal. So, you need to be very careful about that. Consult with your staff.

You might then need to go through a third stage, which is selecting them. So, if you have more than one staff member doing the same role, let's say you had two people doing the same job, and you only need to reduce one headcount, you would then have to work out a way of selecting which of those two people will gonna go. Now, in small businesses, that quite often that selection process in the business owner's mind is, "I'm gonna get rid of the person I least like working with." The problem with that is that that might...that feeling of why you like working with someone might have all sorts of banana skins littered around it that you could be slipping on and finding yourself liable for unfair dismissal or potentially even discrimination. A classic one might be, I'm gonna keep that person because they're my relative and the other one isn't. It's a classic small business situation. Or I'm gonna keep that other one because they don't take as many sickies, they don't have children, therefore, they're not gonna take time off to care for their children in the same way. All of those are wrong reasons to do selection, you've got to go through a fair and objective, non-discriminatory selection process to make sure that you don't pick on them in a way that's unlawful. But you then try as a fourth stage to redeploy them, are there any other jobs in your business that you could put them into? And they've got an obligation if they are fair and reasonable alternative jobs to accept those roles before finally, you might move to terminating their employment. So there's quite a few hurdles to go through. And I stress that now because hurdles equal time, time equals money.

If you're not thinking about this now, you're gonna end up delayed, let's say you're not gonna get JobKeeper 2.0. And you don't do anything about this until right at the end of JobKeeper 2.0, say you've got some staff members that stood down, you're gonna have to bring them back to work at the end of JobKeeper 2.0. You have to pay for them to work during the period that you go through that redundancy process. So, you're gonna burn cash because you haven't got your stuff sorted out now and you're not being organized enough to get on with it. So, I can't urge you strongly enough guys, get your head down to the JobKeeper's sand. Don't wait until the end of JobKeeper 1.0 or even to the end of the 2.0 to make decisions that you need to make around your business. You've got...it's time to cut out the sentiment and time to really think carefully about, what I called, your fiduciary duties here. But it's your primary obligation. You might remember on these sessions before, we've said that you've got three hats. Here, you have your hat to your business, you have your hat to your staff, and you've probably got a third hat which will be your hat to your family. Now, you will emotionally have different feelings of which one of those takes primacy. But the reality is in your business, in your day-to-day job, your business hat must over your employee hat. They should hopefully align, but if they don't, then you need to make sure the business hat comes first.

So, those are the things that I wanted to cover, Stu, how are we going on questions?

[00:27:45]
Stu: Good, Ed. And just to kick it off, a friendly reminder from one of our colleagues that because we're getting quite a few financial questions through today, that this Q&A is basically opinions and suggestions only, not qualified financial advice.

[00:27:58]
Ed: I will happily provide that friendly reminder from, I presume that's our head of risk who's sending a friendly reminder. That these...when I talk about the JobKeeper 1.5, I'm simply telling you what we have done as a business, and how worried I was as a business owner about the failure in my mind of the government to properly publicize that change. Whether you are eligible for it, I don't know. You need to go and speak to your accountant about it. We are Workplace Relations specialists. That's what we do. So, any associations out there you got any concerns about that, you know, we can assure you that we're doing nothing but find Employment Relations advice here.

[00:28:38]
Stu: And to pick off the Q&A proper just a couple of comments apropos about what you were saying before, from Jason, he's feeling pretty stiffed, "I've added three more employees and paid them JobKeeper and now it hasn't even passed Parliament law, will be crap if they change it and people have paid JobKeeper without being paid back."

[00:28:55]
Ed: So, Jason, don't worry about it if you're getting JobKeeper 1.0, then that carries on until the end of September. So, any employees that you've added as long as they qualify by the first of July date, you'll get paid for the August and September fortnights. So, you wouldn't have paid yet unless you're paying people in advance for work in October, you wouldn't have paid yet anything that would fall under the auspices of JobKeeper 2.0.

[00:29:25]
Stu: And again, just a secondary comment from Susie, "The Pollys are not interested in what small business has to say, that has always been the case. They give lip service to small business, but we're never in the room, as you say."

[00:29:37]
Ed: You know, I think one of the most insightful things for me during this as a small business owner, has been that I've always assumed that the politicians are sort of battered up by and spend their whole time acting in big business interests and ignore small businesses as a collective. I think probably the thing that I've seen during this crisis is big businesses are screwed by this as well and the politicians don't actually support them. So, if you'd look at Qantas, for example, you know, for all of the times that any of us get frustrated with the, let's say, contradictions in some of the concepts of lockdown that we see and how it impacts our business. If you were a business in Queensland, for example, you might be screaming from the top of your lungs about the frustrations that you're seeing where COVID cases are so low, so, so low, your borders are shut, people have got this consequential confidence knock from Victoria and elsewhere. And you'd feel like you haven't been led through the crisis properly. Imagine that if you're Alan Joyce, frankly, appreciate that it's not his business in the same way that it is a small business owner's. But imagine your whole business being shattered by the political gamesmanship that's going on about borders at the moment.

[00:30:56]
Stu: This from Felicity, "I thought you needed to be in for a minimum of 12 months before qualifying for JobKeeper?"

[00:31:04]
Ed: Only for regular and systematic casuals, Felicity, and regular and systematic casuals...I don't know what the case will be with 2.0, by the way, we'll have to wait and see. But for 1.0, the difficulty here, the industrial relations upon relations banana skin I'd watch out for here is that you remember that a few months ago, this concept of permanent casuals was said to entitle people to benefits like leave, paid leave. So, my problem with JobKeeper 1.0 was that you were asked to identify who in your business was a regular and systematic casual which to an employment relations specialist sounds like, who in your business are you admitting you might owe annual leave to? So, don't feel like you've got to go and do people favors by nominating them as regular and systematic casuals. Be very careful because in benefiting them with JobKeeper, you may actually have exposed yourself behind to someone tapping you on the shoulder and saying, "By the way, you owe them some leave there."

[00:32:08]
Stu: And Ed, this one from Monaco with quite a few followers, "If an employee is on JobKeeper and needs to go through redundancy, is there any loss of entitlements that is normal leave entitlements. Is it still paid out as normal through redundancy?"

[00:32:22]
Ed: So, if an employee...yeah, redundancy pay would be paid out on top as a termination payment rather than his wages. So, yes, it would, what might be subsumed by JobKeeper would be the amount and wages that you would pay out by way of notice. So, if someone who was on a stand down, for example, you wouldn't have to pay them out their full wages, you'd pay them the JobKeeper for the period of their notice. And, remembering that if it's...if they only work for part of a fortnight, you pay them for the full $1,500 in any event.

[00:32:59]
Stu: This one from Naomi, "If a company is sold, can current JobKeeper-eligible employees remain on JobKeeper? I'm assuming that the ABN needs to remain the same."

[00:33:10]
Ed: Good question, Naomi. There are specific rules about this that I can't recall off the top of my head, to be honest, we'll see if we can answer that and may well be one that's better for your accountant anyway.

[00:33:22]
Stu: From Laura, she's a client, "An employee has retired and they are receiving JobKeeper with the top-up. On the last payment, do I pay the top up or will the annual/ long service leave cover it?"

[00:33:35]
Ed: So, JobKeeper relates to wages. So, anything that they are owed in terms of their annual leave on termination or any long service leave would be paid on top of it separate to whatever the hours they're doing or working or not working for you. So, I think what you're asking is this is that actually they get paid less than the $1,500 at the moment and you're paying them up to $1,500. But you can't use that, the top-up to offset against other sums that they are either contractually or by legislation entitled to.

[00:34:17]
Stu: This one from Karen, "If your staff are only being paid for JobKeeper hours only, that is 10 hours instead of their normal 40 hours, should they be accruing holiday leave on the 10 hours or 40 hours?"

[00:34: 29]
Ed: So, if you stood them down they accrued on the 10.

[00:34:35]
Stu: Andrew says, "Hi, Ed. Read JobKeeper 1.5, what are the time limits for when we can apply/ nominate/ accept nominations from any of these newly eligible staff? I cannot find any dates when things actually must be done."

[00:34:49]
Ed: It's...who is that from?

[00:34:51]
Stu: Andrew.

[00:34:52]
Ed: Andrew, I think you're asking about JobKeeper 2.0, Andrew, and if so, then there aren't any dates at the moment. Watch this space over the next week, I anticipate next Friday will be a pretty big session. We'll need to talk about what actually gets legislated. I don't know if you remember though, last time, we thought that and we thought the session just after the legislation would be a big one, but then nothing really actually comes out from the legislation. And then need to draft a series of rules, which they then publish, and that took another week or so. So it may well be that we're well in September before we know how anyone's gonna apply or be eligible for JobKeeper 2.0. If you're asking about JobKeeper 1.5, you need to just get nominations forms done by any employees that might be eligible. Check your accountant if you're concerned about eligibility questions. And then you don't actually need to apply separately if you're already getting it, you just need to add them to the ongoing process.

[00:35:53]
Stu: Okay. From Maria, "If an employer is receiving JobKeeper, can they withhold that and ask the employee to take their RDOs first?"

[00: 36:07]
Ed: No, you can't withhold JobKeeper. So, if you've got someone that's on an RDO, you just need to...you can instruct them to do their RDO subject what your award or Enterprise Agreement might say. But then you would pass on the $1,500 as part of whatever payment that you make to them. If they get more than $1,500 then you would need to pay them more I believe if you stood them down, no.

[00:36:37]
Stu: From Mark, he's a client, "So, when do you suggest that we pay..."

[00:36:41]
Ed: So sorry, just pause on that. I was just thinking there's an interesting case today in the newspaper about Qantas getting...it's sort of similar in a way that they pay their employees, I think, a fortnight in arrears. So, you work in a fortnight then you do and you might do say some overtime in that and then there's another period before they then get paid for that. Qantas haven't been paying for the overtime if they've been stood down in that second fortnight even though that money relates to the first fortnight which sounds a bit like that question. That sort of the rule of thumb generally is this is that it's the classical old adage there if it looks like a duck and quacks like a duck, it's probably a duck. So just don't...if someone...if you're instructing someone to taking out an RDO, you know, it seems unlikely to me that you could then turn around say, "They're not working, therefore, I only have to pay them the $1,500." You can instruct them to take the RDOs but they would need to be paid in the proper way for them.

[00:37:45]
Stu: Okay. This one from Mark, he's a client, "So, when do you suggest that we pay the top-up for newly eligible employees for the two fortnights in August?"

[00:37:56]
Ed: Good question. I'm not sure on that, Mark. You will...so you'll be nominating them retrospectively. I don't believe there's any guidance out yet, but we'll have a check and see because we'll need to know the same thing for ourselves as well, we'll have a check.

[00:38:15]
Stu: Okay. This one from Kathy, "At what date can we claim for full-time employees that started between the 1st of March and the 30th of June 2020, from the August 2020 declaration period, question? I do not believe claims can be backdated anywhere."

[00:38:31]
Ed: Yeah, it seems a bit odd given that we're at the end of August and you might be going through the processes we are here of getting the nomination forms completed. So you can't claim until you've got the nomination forms completed. But I think it'll be pretty much like the first couple of JobKeeper fortnights. And I don't know if you remember, but the goalposts kind of shifted with that when the government realized that actually, it was really quite hard to get all of your paperwork in order. I suspect that we'll be able to, and there'll be some clarification if there isn't already some. Have a look at the ATO website, that's the best place to get the clarification from, we'll be doing the same. And I think you'll find that in your next pay runs if you've got your paperwork sorted out, you can start a claim but there'll probably be an end date on that as well.

[00:39:19]
Stu: And Ed, we've had this question a number of times over the months but worth revisiting from Mandy, "Hello Ed. We have a valued staff member on JobKeeper, she is casual and would now like to change to permanent part-time. What are the issues I need to consider?"

[00:39:34]
Ed: Good question. So, she's on JobKeeper, casual has been regular and systematic, now wants to convert to permanent part-time. So first of all, Mandy, go and check your award. Did Mandy say she's a client?

[00:39:48]
Stu: Mandy didn't say, no.

[00:39:50]
Ed: Well, if you were a client of ours, call us and get us to do all this for you. But if you are, please do. If you're not, please do, we'll help you out as well over there. In the meantime, look at it like this. So, the JobKeeper thing's a bit of a red herring, you've got someone that wants to convert from casual to permanent part-time. So, typically, absent any award or enterprise agreement that has some structure or methodology to this will be a case of varying the terms of the employment agreement. Probably putting in place an employment contract that you might well not have with a casual worker. But be aware of this that there's this risk with this current permanent casual case because she's this employee's on JobKeeper, you've already said that they're regular and systematic. Sounds like you're gonna drop their pay probably under whichever award it is to reflect permanent part-time, right? It may be that that employee has some problem with that when you get to it. So, you might need to help them understand that that is changing and why it's changing and communicating with them, and then getting it all in writing so that you don't have any backwash from that period as casual.

[00:41:05]
Stu: Okay, another follow-up question from Laura. She's a client, "My employee had surgery and the hospital requested a COVID test prior to going in, there is no sick leave or annual leave available. Is she entitled to the Paid Pandemic Leave?"

[00:41:18]
Ed: Hi, Laura, thanks for your business. It depends where the person is, which industry they are, so you've got your federal Paid Pandemic Leave essentially, Disaster Payment, whatever it's called down in Victoria, now Tasmania. So, if you're in either of those two states, they may well have access to that, by the sound of it, if they've exhausted sick leave and so on. I've said it on here before that, actually, if someone is self-isolating, they're not technically sick and aren't actually entitled sick leave anyway. So there's a bit of a problem with this government payment in that regard. If they are in Queensland, if you're in Queensland, Laura, then there is a state support that the employee may be able to get access to. And remember, it's them getting access, not you as their employer. They need to bring up and ask for access to that, that's not your obligation to go and get the money for them and pay it to them or anything like that. But if they're here in New South Wales, the only way that they might, that might be the case if you're in the aged care industry at all. But otherwise, there's no Paid Pandemic Leave here.

[00:42:30]
Stu: This is from Mike, "Should we reconfirm employment contracts at the end of September to reflect current status?"

[00:42:37]
Ed: I think...great question, Mike. I think that, and it's actually given me a thought, what you should be doing is doing a sort of if you're coming off JobKeeper at that stage, it would make sense to do a wash-up communication essentially saying, this is what happened over this period. This is why you were paid this. The JobKeeper has now come to an end. And once we know what this rule about the JobKeeper enabled directions is for people that are no longer on JobKeeper. You can then state as to what's going to be happening going forward. I wouldn't do it yet, because we just don't know what the going forward rules are and maybe you can still keep people's hours down below a certain level. And if you can, you might want to do that, might need to do that as a business.

[00:43:22]
Stu: Ed, this interesting one from Andrew, it's a follow-up question on redundancy, "Everything I have read is that the role becomes redundant. If you have multiple people performing the same role from what I read, understood, we cannot make someone the person, not the role redundant. Am I mistaken or confused or a bit of both?"

[00:43:39]
Ed: It's Andrew, I think it was.

[00:43:40]
Stu: Andrew.

[00:43:41]
Ed: Yeah. Your understandably confused, Andrew. I think that's not an unreasonable position to be in. The language in Australia is very complex on this, as you said, it talks about the role of being redundant, not the person. And so, you can read that and think, "Well, right, if I've got five people doing the same role then I need one less then the role's still there, isn't it?" And the answer is, yes, it is. But that legislation is interpreted in a way that means you can actually reduce it by 20% and get rid of one of the people and keep the other four. The banana skin in that situation is how you select that one. So, the stuff that I was talking about, at the end of the beginning bit of the session, about not picking people because they're related to you, or they don't have kids or other things that could cause you unfair dismissal and discrimination problems. You need a fair selection process to go through that to determine which of the five people you're gonna make redundant following consultation, of course.

[00:44:41]
Stu: Yeah. A nice 101 from Dan, "Is there a minimum number of hours staff should work to claim the $1,500 of JobKeeper?"

[00:44:51]
Ed: You know, you said...I'm really worried as soon as you said it's a 101, it's a lot of pressure to get this right. So, right now, no, even if you're stood down to zero hours, you could be JobKeeper-eligible and receive it. What happens under JobKeeper 2.0, Labor's saying that it should be restricted to reduction of down to 60% of your hours under the JobKeeper enabled directions, is that just for businesses that are not fully under 2.0? No one knows at the moment. Let's not worry about it until we've got a clearer idea.

[00:45:26]
Stu: Ed, this from Clara, "I have a casual that has been employed with me since the 25th of August last year that is 2019 on a regular roster, can I start paying her JobKeeper as of the 28th of August 2020, or will I need to wait until JobKeeper 2.0?"

[00:45:40]
Ed: 2.0 but it sounds better to see the eligibility day even on an extended basis on the 1st of July. And you do also need to check the regular and systematic interpretation of that relationship being careful because as I say, don't just think you're doing the employee a favor by getting the JobKeeper, it might be helping you. But you've also got this risk that exposes you to a suggestion that you actually owe that employee some other benefits as a permanent employee if they're regular and systematic.

[00:46:10]
Stu: Interesting one from Felicity, "You mentioned redundancy, but where do small businesses stand with terminating based on performance during COVID? There are many on minimum wages who would prefer to be just paid to sit at home?"

[00:46:23]
Ed: Yeah, good question Felicity. We're seeing this a lot where people are saying, "Well, I don't want people that are just deciding they don't wanna work anymore and they're happier sitting at home." I think there's a massive simmering problem with this and probably less so for the businesses that can't work from home, but more so with office-based businesses where people are working from home. And I think that this is where I think you're gonna see blow-ups in the workplace that right now that the questions that are being asked, to me seem very employee-centric where people are saying, "Would you like to come back to work?" And the answer is quite often "No." When actually, the proper question is, "I need you to come back to work." And it's not a question, it's a statement and requires you to do so. And we believe that we created a safe working environment. And people started saying no to that and that becomes a performance issue there, Felicity, as you point out, someone that is not coming back despite reasonable management instructions. And you want to go down a performance path with that because that is certainly a way of moving towards a dismissal if the person doesn't change their view on that. But also, you don't have the obligation to pay redundancy pay, if that's what you might be obliged to do, depending on the size of your business and so forth. So, do look at performance issues. You're still allowed to do performance-based dismissal when someone's on JobKeeper and it may well be the more cost-effective thing to do than going through a redundancy process. So if you need the person to do the job but they're just refusing to do it, it's probably not a redundancy.

[00:48:05]
Stu: This from Isabella somewhat related, "We have employees in Victoria who has stood down on JobKeeper, our business is deemed an essential service and is able to deliver some services. However, employees have refused to work. What do you recommend?"

[00:48:20]
Ed: So, similar answer, to be honest. So, as long as you're complying with your obligation to provide a safe working environment, and those people are refusing notwithstanding that, then you'd be within your rights to challenge them on it and have to go through a disciplinary process. The only complexity really comes into the casual one. So, you've got people that might be on JobKeeper as regular and systematic casuals and they might be turning around now and saying, "Well, I don't want the shifts thanks. I'll sit here on JobKeeper." In truth, if they're saying that, and you believe they can get away with it, then they're probably not regular and systematic casuals and you shouldn't be claiming JobKeeper for them and you should be notifying the ATO to say, "Actually, I've got this wrong, this person is not regular and systematic." So, look, there are two pathways there, the disciplinary one is certainly one you can consider.

[00:49:18]
Stu: One more?

[00:49:19]
Ed: Sure.

[00:49:20]
Stu: From Laura, I'm not sure if it's the same Laura as before, but, "When it comes to redundancy..."

[00:49:24]
Ed: A bit greedy if it is, very greedy if it's [inaudible 000:49:27].

[00:49:28]
Stu: That's three from Laura. Laura says, "When it comes to redundancy..."

[00:49:31]
Ed: Maybe we only got one viewer.

[00:49:34]
Stu: With quite a few zeros after that one.

[00:49:37]
Ed: Okay. Okay.

[00:49:38]
Stu: Laura says, "When it comes to redundancy, I have some employees on awards and some award-free employees, do I need to treat them differently?"

[00:49: 46]
Ed: It depends, Laura, on what the award says. The first question would be looking at the size of your business as well and then looking at the award in order to determine whether they are eligible for redundancy. It would be unusual to be making, let's say, you have two employees doing the same role and they would logically both be award-covered. So, it'd be unusual that they should be treated differently in the same role. But check the award. Obviously, have a look at the size of business. And I do have to say and probably worth saying that if you're trying to do a redundancy process without professional guidance, it's pretty tough. They're very tricky things. So, I'd recommend you get some support on that.

[00:50:31]
Stu: And Ed, just to wrap it up, apropos of your chat before about relationships. This from Peter, he says, "Ed, my business employee is my mother in law, any advice on how I can make her redundant first or redeploy her overseas somewhere far away? Surely there are some special provisions for this situation? Thoughts."

[00:50:50]
Ed: It's a very good question. I don't employ my mother in law. But I've wondered the same question myself. And let's hope she's not watching. Good. Right. Thank you, everyone. I shall see you next Friday. Thank you.

Fridays With Ed Live Stream - 21st August 2020

In partnership with Dynamic Business, Employsure founder & MD Ed Mallett discussed his own journey with the company, and answered questions about JobKeeper, employee management, and more.

Fridays With Ed | Leading Through COVID-19
52:50
Ed here. Just keeping you on your toes. I think a couple of minutes late, really building up the anticipation and excitement, I'm sure. Just want to do a brief intro today because I think we've got a good, quite a number of new viewers watching. We've been simulcasting this, which is something that is a word I never knew about before, but we're simulcasting this today with Dynamic Business. So, there may well be people watching today who have no idea who I am or why they're bothering to watch me, to be honest. The answer to those two questions are that my name is Ed Mallet. I am the founder and managing director of a company called Employsure. So, across Australia and New Zealand, we are the largest provider of employment relations and health and safety advice to small businesses.
We set up these casts live streams a while ago for the purpose of chatting to both our clients, but also non-clients and providing a resource for people to a form of free advice and support through the crisis. Now, I hope that if you are new to watching this, that you find that we achieve that for you. To give you a bit of a sense of the structure of the sessions and the structure today, what we tend to do is give a bit of a sense of the state of play as to how things are going, that might include an update as I'll do today about what the crisis is looking like for Employsure, just to give you some insight into, I suppose, a small business land really.
You all have your own individual stories as to how the crisis is going, but I can give you some insights across our group of 27,000 small businesses which are relatively unique. And I think that when we're reading the paper, you get a certain sense of what's going on in the crisis and perhaps some economic dooms dang which might sell papers, but isn't necessarily entirely accurate with what we're seeing in small business land. So, I'll give you a bit of an update on that. Sometimes I'll tell you a bit about what I'm doing to lead my business through the crisis, not that I'm necessarily an expert, but just to share some of my practice, whether it's even best practice, I don't know, that people can leave or take as they like. We then do a few updates. Things are so fast-moving at the moment that it tends to be an update on things like JobKeeper, pandemic pay, pandemic leave pay, other aspects of the crisis that we go through that relate to the subject matter of what we do, employment relations and health and safety.
If you're really lucky, I then, add on a rant. I normally get a bit carried away about some new tortured rule, which is stopping me from doing my job properly and I end up ranting about it instead of doing what I'm actually paid to do, which is manage my business and the risks that we face rather than criticizing people that are making decisions about lockdowns and so forth. And then finally we move on to what tends to be people's favorite bit, which is the Q&A, and I can already see quite a few questions coming through to ask us questions about employment relations and health and safety issues that you might be facing during the crisis. There's also a bit of a thing that people like hearing the voice of Stu, who is my handsome alter ego who sits in the background and I never let him get on-screen otherwise I would never get any of the limelight.
So, that's the way it goes. I hope that you find it useful if you're new to this and just to kick off then as promised we have a bit of a state of play. So, I want to give you a sense and hopefully some bit of peace of mind as to what's going on in small business land. I think that you can easily in reading the papers and generally on walking down your streets, get particularly worried about where this is all going. It feels like there's increasingly two very different mindsets growing in our society here in Australia, I'll say the same in New Zealand where, very broadly speaking, what I have seen is this, is that in the casual labor force and people that are really at risk during the pandemic, they're probably quite keen, they are quite keen to get back to work in some format talking of things like hospitality and so forth.
At the other end of the spectrum, business owners like ourselves are also very keen to get back and get cracking. And perhaps, therefore, come to terms with maybe even suppress the risk of the health crisis in our mind to justify getting back to work. In the middle, what worries me is that there's this growing, if you like, middle-class of workers who actually seem quite happy with work-from-home, concepts of lockdown and are quite reluctant to get back to work. And I can see a growing conflict and friction between those three groups, where, for example, to give you a mini-version of that, you've got big corporate employers in cities like Sydney that are not bringing their staff back to work and starting to talk about working from home on a longer-term basis and forgetting, of course, about, you know, what about the cafe owner that serves up thousands of coffees in that building a day?
What are they going to do in the future? What about the childcare center that's in the building? All of these questions that people are trying to work out at the moment. So, my insight from the front line of it is this is that if our metrics in our business are anything to go by, what I've seen is that with the Victoria and also over in New Zealand renewed lockdowns, what we see is a growth in activity of people calling us looking for help. There's almost a sense of panic initially when there's change like that. And then it settles down quite quickly and it has done again over the last week or so. And equally when we look at how many businesses can continue to afford to engage our services, and that's a key measure for us during the crisis in trying to work out how we're doing as a business, what we see is many spikes when there is a big government reaction to something.
So, in Victoria, you saw a spike in cases of small businesses ringing us up and saying, I can't afford this anymore. And again, that levels out relatively quickly, pleasingly, relievingly for us. And I think what I interpret that as is this is that we are as small business owners very susceptible to panic, both in ourselves, which is the not so real version of panic but also in the consequences of a government making a quick, rush, sometimes even a bold decision that means our customers and so forth panic, and we trade ultimately off confidence, again, both in ourselves and in that of our customers. And if there's any advice from that I suppose, would be that we need as business owners to consistently detach ourselves from the drama we talk on here, a fair bit about having that mantra, that worrying just isn't thinking.If you're worrying and you're panicking, then you've got somehow detach yourself from that as a business owner, as a manager of your business to make sure that you're actually thinking critically about the health of your business, rather than thinking in drama, thinking in panic, because of all the things that you can't control any given time.
So, the long and the short of it is that I'm not saying that the problems don't exist in the economy. I'm as worried as I'm sure a lot of you are about what the long-term effects are on the economy, what's going to happen as JobKeeper starts to come to an end or is at least reduced? How many of us have been burying our heads in the JobKeeper sand? And I'll be talking about that in a minute. And will there be the proverbial cliff that we are all reading about in terms of businesses that can't survive on-set support and dries up? I'm not seeing that at the moment though, I'm not seeing a lot of the drama that creates that worry in us that the media portrays.
Things are definitely not normal, but I am seeing businesses and we're a resilient bunch in small business land and bouncing back, innovating, working hard against all the frustrations and obstacles that they've got to achieve what they can through the crisis. And certainly, you'd say that small business has shown resilience in spades during the crisis and continues to do so. So, that's the update on the state of play, some updates on things that I know perhaps a bit more about, workplace relations, employment, relations, health, and safety, HR, whatever you want to call it. I have obviously been keeping an eye on all of the moves and changes that may affect your business over the coming weeks and months. The big one that no doubt people are thinking about, or at least I hope they are is JobKeeper 2.0 as it's come to be known. In that over the next week, coming week, what you'll see is a parliament sitting and it will be fairly high up the agenda, if not top of the agenda for them to determine what's going to happen with JobKeeper. It's not clear yet whether it will pass through in the format that has been much publicized in the press with the limitations on who's actually going to receive JobKeeper 2.0, whether the amounts received under JobKeeper 2.0 will be the 1,200 and so on amount that's being rumored in the media and released by the government.
All of those things need to be debated. So, my strong message to all of you through this would be, don't spend your time sitting on, clicking refresh on any Australian government websites. You're wasting your time. You're probably sending yourself into worrying, not thinking. Your time at this stage is better off spent preparing for the worst, which would be, as we believe is going to happen to our business, that we won't continue to get JobKeeper beyond the end of September. So, what we need to be doing therefore is modeling our cashflow, setting ourselves some targets based upon that outcome. And if you are either blindly assuming that you're going to get it, notwithstanding the fact that it hasn't come into law or that you are just ignoring what might happen if you don't get it, then you're probably not doing your job, which is to manage and lead your business through the risk of the COVID-19 crisis.
So, don't spend your time worrying about JobKeeper for now. I'm going to be quite blunt in response to any questions that we're getting about JobKeeper 2.0. One thing I would say is that make sure you're appraised of the changes that occurred during JobKeeper 1.0 to enable you during August and September to get JobKeeper for employees that were eligible under the July test as it's called. There wasn't a lot of noise about that in the media, to be honest, I think there'll be a lot of businesses that are perhaps able to get some support for employees that weren't otherwise eligible for JobKeeper. That became eligible when the July test came in. So, just to make sure that you're checking to see whether you're fully utilizing JobKeeper for what it's intended for at this time. And then don't spend too much time worrying about JobKeeper 2.0 other than what you're going to do if you don't get it.
The sort of things that you will need to be asking yourself in that context are what's my cash flow look like if I'm no longer getting the $1,500, but more personally to our position as advisors on workplace relations is you might have a series of people on forms of stand down or reduced hours at the moment, who in principle at the end of September are meant to be coming back to their old contractual hours at full pay that you will have to fund. There may be changes to that. There may be that the right to do JobKeeper enabled stand-downs, JobKeeper enabled directions as they're called are extended, but at the moment, it looks like if you don't get JobKeeper 2.0, and maybe even if you do this might be amended or finessed. Some of these rights that you've had as employers to impose decisions on your employees about being stood down or paying them their holiday pay, instead of paying them their wages, subject to the limitations on that might be taken away from you.
So, you need to really remember that at the end of September, you might have some problems. This is why people are talking about the economic cliff, and you need to be preparing for that now. You don't want to be wasting say four weeks at the beginning of October, going through a consultation and redundancy process, let's say, to avoid liabilities for things like unfair dismissal if you could be doing that now. Because you're going to end up spending a month's worth of wages, which might be cash that you simply don't have, or would certainly better not spend. That's why I bang on about taking your head out of the JobKeeper sand. I see it a lot with businesses and have to remind myself not to do this, to be honest, where we've sort of gone into a bit of COVID fatigue, almost an autopilot where you're just trucking along, almost being tempted into thinking, "Oh, well, that wasn't quite as bad as we were all expecting. That's good. Things are going to be okay soon."
In a very twisted way, the Victorian lockdown as being a good thing to shake me personally out of that thinking and to remind me that I do need to prepare for the worst. I can't spend, or I can't waste time nor can I waste company resources making slow decisions that only occur on a reactive basis. I need to be controlling the business, thinking preemptively about what might happen to our cash flow. Therefore, my cost requirements are and what I might need to do about my staffing levels, for example. So, make sure you're not sticking your head in the JobKeeper sand, don't spend your time worrying about JobKeeper 2.0 that's not thinking, instead, what you need to be doing is spending your time planning as though you're not going to get JobKeeper 2.0 and what that looks like.
If you do then get it, great. You're in a better position. It's much easier to manage a business on that basis. Now, just draw a brief parallel on this. So, in a long period ago now, when I had a hell of a lot more hair and more eyesight as well, and other things that I'm losing quickly, I used to play sport for a living, and will come as no surprise, it wasn't badminton, it was rugby. But I used to play rugby for a living. And what I saw happen from the really good managers of teams there is that they prepared us as players for every eventuality. So, you would know that what would happen if at 75 minutes in the game, you are 5 points down and you were in a certain position in the field, what are you going to do about it?
And if you look at the really, really good teams, and I was certainly never at this sort of level, but you look at the New Zealand All Blacks, who are famous for being brilliantly prepared, they all know, collectively know the routine that they are going to go through in each of these different environments and circumstances. And that's a brilliantly drilled team. You know, we all have heard that term drilling a team. And businesses can learn a lot from that, I think, where you're really, really well drilled so that you don't feel like you've just been punched in the face when you get told you don't get JobKeeper at the beginning of, or the end of September, beginning of October, and suddenly you're panicking and you're wasting time, you're wasting money on not acting quickly. The really well-drilled teams know exactly what the processes are and they know exactly what to do in every eventuality, including the worst ones. So, you want to be a well-drilled team. Ideally, you want your whole team to understand the drill, not just yourself, but start by you understanding the drill.
So, a couple of other things, this is where I thought I might veer into a bit of a rant. It's not really got nothing to do of workplace relations, but it, well, it might have something to do with workplace relations. You've seen the new South Wales state government came out and added some rules to state schools during the week, which is going to mean the cancellation of formals and things like that, which the way it affects us in terms of workplace relations and the way it affects you as small businesses that you may well be a catering company or something like that. Let's just add a further kick in the groin as a result of what seems like quite a random decision in many ways. And some of the things are quite contradictory. Now, I know that for example, there are bans on playing school sport but community sport is still allowed.
And I don't say that promoting anything other than community sport is continuing to be allowed, but if you had a business that was related to school sport or school formals, you'd no doubt be very frustrated about those contradictions. I should say amongst you all there's a bit of black humor in that my daughter plays clarinet. I don't think it would be rude to say that I'm not convinced she's going to be in a professional orchestra in the future. Maybe she will, she might surprise me, but her clarinet playing days have just being brought to a grinding halt by the New South Wales rules. Interestingly that you can carry on playing a trumpet. So, the poor parents that have to listen to that as I read the rules anyway. So, my daughter's now being put in the position that she has to turn the pages on the music from the trumpet person, but she's not allowed to play her instrument herself, which seems like an unlikely way of restricting COVID.
But the reality is I make a bit of a joke out of it to try and make this point. These things are all out of our control, and there is no point in worrying or thinking about things that we can't control. We can only control the controllables. And if you are a business that has been impacted by what can seem like random and erratic rules, you're not going to serve yourself or your business well by spending your time ranting about it. And we all do it, we just got to try and contain it. Nor, you know, sending stinky emails to the state government and whatever else I suspect that you're not going to get much response, you just need to respond as best you can because you should be preparing for the worst and know exactly what you're going to do because you're so well-drilled at the moment.
There's going to be a Fair Work Commission hearing later this week on the question of paid pandemic leave, whether there's going to be an extension to, at the moment, remember there's just three different awards that are related to the age care industry in which the concept of paid pandemic leave has come into play. And that's aside from the state support, which we'll come back to in a moment, and there's been a push by the relevant unions to say that those working in the ambulance business, ambulance industry should also get the benefit of it. There's a dispute going on as to whether that should be the case. I don't think that's going to impact that many people, to be honest, I feel like it's a lot of people in what's sometimes negatively referred to as the IR clubs sort of finding themselves things to do during the crisis because it doesn't seem to me that actually finding that pay pandemic leave for ambulance drive really supports anyone given that the government of Victoria and state, sorry, the federal government is offering up a form of paid pandemic leave for those in Victoria anyway, it's just sort of, everyone's wasting money on legal fees instead of dealing with proper issues.
And on that note, remember there is that concept of a sort of paid pandemic leave by the back door for a disaster payment in Victoria. There's also an equivalent thing up in Queensland. If you have employees who are being required to self-isolate and quarantine, get them to have a look at that and the restrictions on that. I can speak to that if anyone's got any questions on this session. Couple of final things before we turn to the bit that you've all been waiting for and hearing Stu's voice again. The first is that there is this committee going on at the moment. There was a really good article today by a lady called Judith Sloan in "The Australian."
And she's got pretty strong opinions, opinions that are not too dissimilar to my own though, in the waste of time that we see from the inertia of people just talking and having, I think she called it a sort of corporate talk fest in the article this morning, of people sitting around in these new committees that the government has created to talk about IR reform. So, a couple of things, first of all, I find it amazing that I'm not aware from a single one of our 27,000 clients that anyone has had the either humility or respect to go to those small businesses and say, "What would you like to see from IR reform?" No one, absolutely no one. Instead, what they've done is gone and employed a load of people where you have very little in common with those small businesses and very little contact with them to go and represent the views of employers.
And they've also got unions their representing the views of employees when, again, unions only represent the interest of about 15% of the workforce. So, there's a real underrepresentation of employers and employees there, but particularly in small business land, the consequence of which is the same thing we hear time and time again, then they're spending a lot of time waffling on about things that don't count small businesses. They're talking a lot about enterprise bargaining, for example, enterprise bargaining is just not something that really affects small business. One or two of you might have enterprise agreements in your workplaces. My strong recommendation to all the small businesses I speak to is that enterprise bargaining is a waste of time for them. It's not set up structurally for them. It's mainly for big businesses and it's a waste of time for big business as well, frankly. The sort of thing that Judith Sloan promoted this morning that I'd love to see happen would be the creation of a small business award so that we can have a really simple set of rules for those that employ people, say, less than 15 full-time equivalents, which is what is proposed by Judith Sloan.
I know that that's something that the small business Ombudsman is promoting as well. I'd say I like the idea. There's quite a lot to get detailed on it, but I do like the idea of it so that you can have one place instead of a myriad of places. And some very small businesses can end up with multiple awards, multiple pay rates, which we all know is the core confusion behind problems like come to payments. So, it was a really good article, if you get a chance, go and have a look at that.
Final thing, a couple of outstanding questions from last week about, there was one question about paid parental leave in JobKeeper. Just a reminder that if someone is getting government paid parental leave, they're not entitled to JobKeeper. But otherwise, they can do subject to the other entitlements. So, you might need to understand what the rules are to do with government paid parental leave as well if you've got an issue there. So, Stewie, some questions, please.
Stewie: Let's kick it off with a couple of comments, this from Ruth. Great. Another week of stage four behind us here in Victoria, great to be tuning in to Ed and the team once again. And this is from Tonya Woodvine. Thanks for coming back onto the live streams. We've all missed you.
Ed: Oh, thank you. I've been here. You've just clearly not been tuning in. So, no, yeah, I did take a little break. A cheeky break. Yeah. It was at the time it felt to me, I need to focus on my business as well. I was doing them daily for a while and I wanted to...it felt like things were settling a bit and now, obviously with the second wave, we've had a second wave of issues occurring as well. And crikey, how quickly you can stop being up to date with it. It's fair to say that, you know, my day to day world is managing my business, not being on the phone advising to you guys, obviously, we employ a big team here to do that. But in doing the live streams, I was required to make sure I was up to speed with that. I've realized now, even as an employer, that things have been changing, that I'm not sure I've been on top of, and I've got to check and I can only imagine, frankly, if you're not dealing with workplace relations as a specialism, as most people are not, just the confusion that's coming out. We're still having people come to us that are unclear about whether they should have ever applied for JobKeeper, let alone what a JobKeeper direction is. So, I'm sure that's something that you can empathize with,
Stewie: And Ed, these first three are coming from our friends at Dynamic Business. Question number one, from your time as a barrister, what deficiencies did you see in the employment law advisory space that compelled you to start Employsure?
Ed: Good question, Dynamic Business. So, that was my old job. I was a barrister in the UK specializing in employment law, and it was in doing that I recognized the need to set up Employsure. I know it's probably best described as this is that barristers really only deal with the sort of tip of the iceberg. By the time everyone's got into their corners and is fighting about what's happening in the workplace. And that happens a hell of a lot for every single size of employer. The reality is if you put groups of people in a room, whether it's a pub, workplace, home, wherever it is, if they stay in that room for long enough, they'll have an argument, just happens. And barristers are just mopping up the mess at a very late stage in that. And I started to want to explore wherever I could get under to the substance of the iceberg and help people stop those disputes or reduce the chance of those disputes happening.
The reality is you can't do that on the old fashioned way of charging as low as barristers do, it just costs too much. You know, you charge hundreds dollars an hour and people are not going to ring you up and take proactive advice. That's just the way it works. You'd much rather sort of stick your head in the sand and hope you never have to meet me at my old job. Versus the model Employsure deploys, which is we do a subscription model to our clients. We want them to ring us as much as they can. We're open 24 hours a day. So, they can also ring us particularly things like weekends, a lot of small business owners ring us because they want to talk to us about their issues without, when they're out of earshot of their employees and so on. Really, it was this, the mismatch between the pricing model of lawyers and the problems that employees...sorry, employers faced versus the pricing model of lawyers. Yeah.
Stewie: Question number two from Dynamic Business. The legal industry has evolved so that companies can receive quick and trustworthy legal advice from legal tech and new law companies. How is Employeesure keeping up with such disruptions?
Ed: With respect to the guys asking that I don't see that. I think law firms for too long have thought that a big disruptive element is coming from some bot or technology or something somewhere. I don't actually think that's the biggest threat of disruption to lawyers. I think the biggest threat to disruption is customer service. I always remember my dad was a medic who was a surgeon and he used to teach me that one of the most important things he did was to, in his bedside manner, and giving his customers, his patients, the belief in him that he was going to be the right person to cut them open and do his job, and too many surgeons, but also too many lawyers forget that. And they think that they're being paid just to do the job rather than to give comfort to their client.
And we focus hard on that here. I think lawyers as a rule are generally pretty terrible at customer service, and that's their biggest vulnerability is that people start to attack their business model by working out the way in which customers prefer things to be packaged, including things like how much they charge and when they charge, you know, paying someone by the hour, it's got obviously an inherent conflict of interest, if you do that. It's in the interest of the person to take bloody ages to do it. So, yeah, those are the things I think that I need to focus on and stop hanging on about bots and AI and all the other things that lawyers seem to be fussing about.
Stewie: And just to wrap up question number three from Dynamic Business, how is Employsure making sure that they meet the demands of clients as state/territory government employment directions are constantly being updated?
Ed: We're totally winging it. No, we're not. We have a whole team here who spend their time doing everything from digesting the news and media every day, to looking critically at the law changes. So, classic ones recently, things like the double-dipping case on casuals going to the High Court, that is something you might have some questions about. Other cases coming through about how you calculate sick leave, which came out recently, and we have a team that jumps on those things and is analyzing them and making sure that, you know, our 150+ advisors here are speaking to our clients correctly.
So, I should just say, as well just regular guys and I don't think Dynamic Business would mind me saying this, is that don't take this as some new product placement version of us. You know, we just said to the guys at Dynamic Business, we've done some work with them before and written some articles for them. We just said, "Hang on a second. Would your readership be interested in seeing this on your live stream?" And there's no commercial, you're not going to start seeing me wearing Dynamic Business, tee-shirts and things like that. Well, if you've got any free ones, they'll take it, but that's not part of the arrangement.
Stewie: And this one from Seriah, I have a small business in New South Wales. Can I let an employee go who refuses to wear a mask?
Ed: Good question. It depends a bit, Seriah about what you're doing and how necessary that mask is as part of your COVID-19 plan. So, you should probably have completed that COVID safe plan, and having a mask may have been part of that. You'll notice you get very different experiences in some customer-facing environments. So, I went to a shopping center here in Sydney yesterday, some shops are very clearly decided not to wear masks. Others are very clearly wearing them and so on. And the reason for that is that there is no strict rule about it. And if you haven't created that rule within your COVID safe plan, it would be difficult to then enforce that against that employee and to dismiss them.
And more importantly, I think that, I don't think Seriah said whether the person was casual or not. So, obviously, you need to look at their length of service and so on, not wearing the mask. You know, frankly speaking, you get to, before you ever got to a dismissal, even with a casual worker, who is not giving them hours, you'd hope you are having an upfront conversation. Remember that iceberg I just talked about? That's a classic situation down at the bottom of the iceberg, have a chat to the employee rather than rushing to the "You're fired" conversation.
Stewie: Ed, this is one from Jeanette. Will government reconsider JobKeeper for industries that continue to be shut down. that is conferences and business events? We're effectively shut down at least until the second quarter calendar '21.
Ed: Yeah. So, it depends, I guess the question who asked...sorry, who asked, Stu?
Stewie: Jeanette.
Ed: Jeanette. Relates not to your accessibility of it now or under JobKeeper 2.0, but what happens in 2021. I don't know. They may well look to extend it. They seem quite clear on not going for industries. Then you might have heard me, Jeanette, speak here before. I'm quite pro them avoiding trying to find industries that have been negatively impacted because there's so much risk of unfairness in that. So, if you think about something like the hospitality industry, that coffee shop sitting in the bottom of the big corporate building is being really badly impacted, but the coffee shop now sitting near me where I live, for example, seems to be packed at the moment because there's so many more people that are there during the week.
And so, to suddenly say that that industry should, or shouldn't be get support would seem a bit unfair. It also ignores the reality of supply chains, which is in your industry, in conferences and business events, there's a huge supply chain as you well know. You don't need me to tell you that, but what happens to any of the outsourced elements, your business, or supplied elements, maybe catering, things like that. Do they also get the support? So, I don't think they will go into narrow industry-based support, but let's see how this plays out because even when they announced JobKeeper 2.0, they've already had to backpedal a bit on that, realizing that there was going to be some unfairness, particularly in Victoria with businesses that were going to miss out because they weren't going to qualify under the new proposed test.
Stewie: Ed, this has a touch with the financial adviced questions about it, but it's been by a few people. So, you might want to give it a shot. Tamara asks, have you seen anything relating to the cash and boost refunds with PAYG continuing? I would think it would go hand in hand with JobKeeper?
Ed: As a consumer of that, I suppose no, I haven't seen anything about it. But yeah, it's a case of keeping an eye out for it.
Stewie: From Ryan, do the employee eligibility changes apply to businesses who are eligible for the current JobKeeper scheme or only to businesses eligible for JobKeeper 2.0?
Ed: Say that again. Ryan, was it?
Stewie: Yeah. Do the employee eligibility changes apply to businesses who are eligible for the current JobKeeper scheme or only two businesses eligible for JobKeeper 2.0?
Ed: So, there were some changes, Ryan, to what's now called the July test, which is basically four fortnights beginning, August 3rd, sorry, that there was a new consideration of who's eligible. And it doesn't substantially change the nature of the employment relationship as to eligibility. It's just the time at which they were employed, but it basically means that for people that might have become employed after the March date, that there may be more people that you could be claiming JobKeeper for, and therefore supporting your business better. So, have a look at those, but as to the rules for JobKeeper 2.0, no one knows what they are yet, because they haven't been determined in parliament.
Stewie: Ed, this is from Lis or Lisa. We're looking to hire our first role since COVID started. Our whole team has a fairly conservative approach to health measures and we all feel safe in our work bubble as a result. What can we legally ask about potential team members during the interview process to maintain ourselves in a safe environment, both actual and perceived? Concerned about the line between work and personal when it comes to COVID, I run a food manufacturing business, so roles are unable to be worked from home.
Ed: I'm good, Liz?
Stewie: Liz, you're reckon.
Ed: I reckon. Yeah, tell us if we've got it wrong, Liz. So, what can you ask in the interview process? So, you remember way back when there were a lot of people asking about whether you could force people to download the app and things like that. And the app seems like a thing of distant past, I've not actually even heard anyone really talk about it as something that's productively used. So, I wouldn't get into the mess around that. Your obligation as an employer is to provide a safe workplace to all of those working at the workplace, including this potential new employee. So, really what you've got to do is establish the boundaries by which someone enters into your workplace and making sure you've got consistent and clear rules about what to do, if they're feeling unwell and so forth, and making sure they're not coming in and putting people at risk.
And then also you potentially have in your COVID safe plan, wearing things like PPE, which in food manufacturing is obviously very important. Now, whether you can, I'm not sure what else you'd want to ask, let alone what you can ask of someone's coming in. I suppose you can ask them whether they have been sick, the sort of questions you might be getting asked. I know for example, when I take my kid to community sport, they have a list of questions about whether I felt unwell, whether I've had COVID, whether I've been in the vicinity of anyone that has, we asked similar questions of our new clients when we're going out to see them at the moment, you could ask those sorts of things. But I don't think that you could then sort of start making subjective based judgments on, you know, the quality of their social life or where they live or things like that.
You'd run the risk of stumbling into discrimination issues. So, to give an example of that, which might or might not be possibly the sort of thing that could happen in practice, but let's say that there are certain suburbs, as we know in Melbourne that have got higher rates of infection. If you turned around and said, "I'm not hiring someone from that suburb." You run the risk then of that person say, "Well, hang on, that suburb has a predominance of people of this race or this religion. You're therefore discriminating against me. And I just that's the sort of minefield that I wouldn't want you to get into, so don't use big, broad-brush rules that you are, I suppose, creating your own expert belief as to the risk. Instead, focus on your workplace and having a risk process for your workplace, risk management process.
Stewie: This is from Anita, she's a client, H2O Swimming Works. We've been fully closed since the 1st of April and remain closed with 20 staff on JobKeeper phase 1, our remaining 60 staff are all casuals that have all been stood down since the 1st of April. Is it mandatory or optional for us to offer JobKeeper 2.0 to these other 60 staff?
Ed: No one knows yet. Lisa, what was it?
Stewie: Anita.
Ed: Anita. Sorry. I've got Lisa on the brain after our debate about that. So, Anita, first of all, I would, I'm going to go out and check. We've got a big photo of one of our swimming club clients on the wall over that. We're going to see if that's you. If not, I was actually chatting to one of our team here called Josh who told me his mum was a client of ours who had a swimming school with a huge number of employees, as it sounds like you've got so, 80 odd employees, that's a remarkable business. Well done. So, what do you have to do about those that are currently stood down? So again, the question became the JobKeeper as it is, is meant to be this one in all in, who knows what will happen with JobKeep 2.0? Don't worry yourself with that at the moment.
I think you need to assume, prepare for the worst, assume that you're not going to get JobKeeper 2.0, what does that mean to those 60 people at the moment? I don't know if they're getting JobKeeper, whether they're on a JobKeeper enabled stand down, whether they're casuals that you're just not given hours to, and so forth. So, the best thing I can recommend is to give us a call as a client, or we'll call you just to talk. We won't go through the JobKeeper 2.0 stuff, because that's no one knows yet. And that may well be a question better for your accountant, but what we can go through with you is looking at what might happen if you don't get JobKeeper, what do you need to do about your staff costs? Whether you need to start proactively looking at management of those costs reduction in your workforce.
Stewie: Ed, this one from Tanya. If a casual was given the job on the 27th of June, 2019, and we're assuming that could be a typo, perhaps you mean 2020, June 2020 and contracts were signed, but they didn't have their first shift until the 19th of July, 2000. And, no, it is 2000. [crosstalk 00:43:00.322].
Ed: Yeah. It's the year everyone [inaudible 00:43:00].
Stewie: So the staff was given the job on the 27th of June, 2019 and contract signed, but they didn't have their shift until the 19th of July, 2019. Do they qualify for the new JobKeeper program?
Ed: When we say new JobKeeper program, I think you mean the July rule, and it's the same as the old position, which is you need to look at when they were employed from not when they signed documents and things like that. So, it sounds like probably not, but it's also JobKeeper eligibility things. So, I'd have a chat with your accountant about that as well.
Stewie: And somewhat related, Ren, not a client, yet, they say. With new rules, do the casuals need to have been employed for 12 months prior to the 1st of July, 2020, or not?
Ed: For the July rules, that is by understanding that there needs to be a 12-month regular and systematic arrangement for that period. Yeah. But when you say new rules, be careful of the difference between, let's call that JobKeeper 1.5 rather than JobKeeper 2.0, that was a rule that was come into place to allow for the August and September fortnights for people who didn't otherwise qualify because of the previous March cut off. There's now this July cutoff for regular and systematic casuals and also permanent staff. So, my recommendation to everyone, including myself, is to make sure you get a look at those rules carefully. It may be that you've got employees that you should be claiming for that you're not.
Stewie: And Ed we've touched on this before but worth revisiting from Janelle. Can you request a new employee to get a COVID-19 test before commencing?
Ed: I don't know that you can necessarily...can you request to get a COVID-19 test? I think you can ask people about their symptoms and so forth. It's risky. You're starting to push into that. It depends. If you've got a small workplace, there's not a strong reason why you couldn't necessarily, I can think of someone who would scream out at me if I'm getting this wrong, but it just feels quite invasive to say, you must have a test in order to attend our workplace. But it's not entirely out of the realm of possibility. Put it that way. But I wouldn't do it here, but it would be more difficult to manage here because there's too many people. But I do have a strong policy in place about what to do if you have symptoms and equally that you shouldn't be attending work if you have been in contact with people who have symptoms and so forth.
Stewie: And Ed, this is big question from Andrew. What options are available to us if we determine redundancy is not an option? We have many staff with the same job role, we're currently implementing some of the following, redeployment, conversion to part time, retraining, performing the combined multi roles, etc.
Ed: It sounds like you're covering a lot of the bases. So if you, for example, you might say redundancy is not an option, maybe because of the cost. I don't know if anyone saw that stuff about Qantas yesterday they did in their AGM. I think the cost of their redundancy has been certainly in the hundreds of millions. It's extraordinary. So, they've obviously got thousands of people that have been made redundant. But just the cost of business of that is huge. And quite often, you'll be saying the last thing I need is to be paying people money for redundancy when cashflow is my biggest burden. So, really what then happens on a general level, Andrew, is, you enter into a consultation/negotiation with your staff and say what else can we do, guys? Shall we job share? It may be that we need to look at reducing our personal income subject to minimum wages. Can I redeploy you into different jobs? Or all of those things you'd be looking at before you make redundancies, which will cost you more rather than less in the short term.
Stewie: This is from Sue. She is in a service-based business. She says, if we don't get JobKeeper 2.0, can we ask employees to temporarily take a pay cut if they are not generating the required amount of income?
Ed: So, certainly it's a couple of things. If JobKeeper 2.0, you're not eligible for that. There is a chance that the government is going to say, you still get the right to make JobKeeper enabled directions. And now, one of the JobKeeper enabled directions is he can't direct people to take a pay cut, you could request that they take less hours. But you could, regardless of JobKeeper, speak to your employees about a pay cut subject to their minimum wage. You just can't go below minimum wage just because of the crisis.
Stewie: Ed, this is a great example of a business owner doing everything they can for their employees. This from Raylene, we have work-sponsored employees who are not eligible for JobKeeper or JobSeeker. We have paid all the annual leave they have. We tried to find out what help is available and what we got from the ATO they are not interested in and they are not their mothers. From immigration, we got that they are not responsible for their financial affairs. From Fair Work, we got half leave and half pay. These young adults are now in the dark. There has to be some sort of options for them.
Ed: Yeah, I do smile at that it's sort of being someone that immigrated too from the UK to Australia, being an immigrant myself, but it is a real problem actually, that you've got, it's not a problem having lots of English people here. I'm sure we're told we're very welcomed, but the problem is what's happening to visa holders and they're getting forgotten about a bit in the system. The best way to look at it as a business is to look at your costs as a pool to see how, rather than just saying this person gets JobKeeper, this person doesn't, therefore they're not getting hours, whatever it is. If you want to treat people fairly, not have the risk of getting discrimination claims, let alone being a good employer. You want to try and look at how much you're getting from JobKeeper as a pool and weigh that against your cost to see whether you can more fairly distribute work between people.
And second, there's not much government support. There's a bit obviously in terms of the pandemic leave disaster payments if you've got the right to work here, you can get those payments, but that's a very narrow circumstance. So otherwise, there is a problem at the moment with visa holders and you're seeing a lot of people have to leave the country. Particularly in terms of short term visa holders. And I think a lot of our client base can have a really interesting challenge in the regional businesses when it comes to staffing farms and fruit picking and things like that. I don't know what's going to happen, to be honest. It's going to be really fascinating to see what happens now that we've had a short term visa holders dry up to a degree.
Stewie: Let's have one more.
Ed: Sure. If anyone's interested.
Stewie: From John. Ed, we have an employee that has a persistent cough. It's not COVID. We know it because he's being tested and we have the medical clearance to prove it. However, other team members have raised concerns. Any advice on reassuring them while protecting his privacy?
Ed: So, he might have a conversation with... Funnily enough, these things, we all worry about the trip wires involved in them, and quite rightly we should be worried about them. But normally, the first piece of any advice I'd give is that you need to have a human conversation with the employee and say, "Hey, you've got a cough, other employees are worried about this. I know you know that you haven't got COVID. Are you happy for me to share that information with the other staff?" In things like health, privacy, it's obviously a real issue, but it's difficult to see circumstances in which the employee would have any great objection to that. So, as long as you approach the conversation in the right way, I think that would be a good thing to do.
Stewie: Special request here to ask just one final one from Justin. If we have less than 15 employees and receiving JobKeeper, thinking of making a position redundant, do we have to pay them the full redundancy?
Ed: Good question. It may well be that you don't have to pay redundancy at all if you're a small business. So, you need some specific advice depending on your industry and so forth.
Stewie: Any couple of comments to finish up?
Ed: Only nice ones. No trolls. I'm not built for that obviously, I'm new to this social media thing. I don't need to do any of that.
Stewie: This is from Sandra. She's a client from Geelong. Ed, can you please share your arm workout with the group? I'd like to pass it on to my husband.
Ed: I know. I'm embarrassed, Sandra.
Stewie: There you go, Sandra. But this is from Michelle. Hi, Ed. Thank you for giving up your time to connect with us all in this way. Your father certainly modeled and made the right impression on you regarding customer service. As a subscribing Employeesure client, your customer service feels truly authentic. And the service we received from every member of your team has been excellent.
Ed: That's lovely feedback. Genuinely that's what makes me, gives me energy actually through the crisis and otherwise, just to hear that, so thank you very much. Excellent. Thank you, everyone. I hope that that was a useful session and we shall see you next Friday.

Fridays With Ed Live Stream - 14th August 2020

On this live stream Ed provided updates on the Victorian lockdown, discussed insights into JobKeeper 2.0, and covered the shock overnight change to Level 3 in parts of New Zealand this week.

Fridays With Ed | Leading Through COVID-19
55:33
Ed: Hi, everyone. It's Ed here on Friday for our fourth week of doing these weekly sessions. It's amazing when you look back at those last four weeks and think of everything that's happened, just a brief summary from a workplace relations perspective at least. First of all, we started to see the signs of the Victorian wave, which we're obviously deep into now, and the shutdown that followed from that. Questions of permitted work sites, permitted workers and so forth. And those in Victoria might be getting more used to those issues now, but we'll talk about them a bit later on to try and give some clarification.
Second of all, what we saw was the emergence of JobKeeper 2.0, which soon became JobKeeper 2.5, and I think is gonna become JobKeeper 2 point something else fairly imminently, and I'll talk about that today as well, as there's an increasing sort of level of murmuring from the opposition about some objections they have to the proposed 2.0 scheme, and I'll give you a bit of insight into what I'm seeing about that.
And then for any of you doing business in New Zealand, we had this shock acceleration to what they call alert level three in New Zealand overnight on Tuesday. So we as a business spent...I was actually sitting on my sofa on Tuesday night watching telly, and I got one of those pings on my phone which gives you a news headline update, and it says, "New Zealand moves to lockdown." And New Zealand, bear in mind, that for the last 100 days hadn't had a case and everyone was attending things like sporting events. We didn't have social distancing in offices and so forth. And then suddenly they rushed to that and they didn't give us much time. We had to do it within...by midday the following day. So we as a business had to get about 150 people out of our office in that time, which was a big challenge. I'll talk about how we worked through that in a moment as well.
And then beyond the New Zealand challenge, we also get the curveball thrown in yesterday of a decision relating to personal carers leave for permanent employees, full-time and part-time employees, which is known in workplace relations circles as the Mondelez decision. I'm probably not giving the right level accent to that, but I say Mondelez. I'm sure there's a more fancy way of saying it. But I'll talk about that decision because it's important to anyone in Australia who employs permanent staff and relates to their entitlement and their accruals of personal and carers leave.
So just a quick reminder, I suppose, of the mindset of management. I, like a lot of you, have been wavering in and out of...I say a lot of you. I'm bringing you down with me. I assume that you've been wavering in and out of a stage zero, the denial stage, as I have. And, certainly, I felt that on Wednesday when I was critiquing, I suppose, what happened in New Zealand where they saw a handful of cases. Admittedly, they haven't had some for some time. But, in essence, what happened was that I suppose in less than 24 hours, much of their economy was shut down. And that can be infuriating. It's infuriating to be running a business in that. It's infuriating to be trying to leap through that. And it did take me some time, but I think I'm just about there, to rise above that, not to be stuck in stage zero and to remind myself that my job is not to second-guess the politics, not to involve or broil myself in the politics and the whys and wherefores of what's going on behind that decision. The reality is there has been a decision, and I need to manage the business through that, and I need to make sure that my staff both understand what's going on but feel appropriately looked after in the circumstances, trying to distill, if you like, the chaos of what's going on in the public domain, on the political domain, and distilling that into clear, concise and consistent messaging for my staff.
So, yeah, for any of you that are wavering in and out of that, and, you know...I talked when we previously did the daily sessions. I sort of have a litmus test for me as to when I'm wavering in and out of that. It normally means that for about an hour before I fall asleep at night, I end up reading just about every newspaper I can find online about every sort of fairly one-eyed viewed on lockdown and how it's an overact and ridiculous thing, and I get myself very frustrated and then don't sleep very well as a result. I suspect a few of you do something similar to that. So just remember and try and remind yourself just to get back into form, which is we do not control questions of lockdown. That's just so far beyond our control. There's not much point in wasting any emotional energy on it. What we do control are the actions that flow from that. And our job is to manage that risk in our business and to properly appraise those actions, distill and implement in your business in such a way as to minimize the impact on your business and hopefully achieve success through the COVID crisis and beyond.
So a little bit about how I'm managing, I suppose, over the last week or so, before moving on to JobKeeper. So JobKeeper, as predicted here a couple of weeks ago, it's starting to get a couple of cracks in it as to what JobKeeper 2.0 will look like. You'll remember we said here a couple of weeks ago that this is not legislation yet. It's very confusing the way it gets announced by the government. They make out that this is all said and done and at the end of September, JobKeeper 2.0 is gonna flow into the system.
There seems to be...and whether it's posturing or not...I've read something in the media today of labor starting to look...they're trying to horse trade our relevance of JobKeeper. For example, they're saying that they may well support the idea of extending the changes to the Fair Work Act, which give employers various different powers like JobKeeper stand-downs, extending those to people...to employers, sorry, that haven't qualified for JobKeeper 2.0 but still would benefit from those extra powers. There's a bit of resistance to that, but, basically, labor seem to be saying that they will support that reluctantly but only if the actual amounts paid to people in under JobKeeper 2.0 are increased from the proposed $1,200 initial fee and, I think, $750 for those on lower hours.
So look, there's still a lot to come in JobKeeper. Parliament's not sitting for another couple of weeks, and over the next couple of weeks, we'll start to see more and more posturing in the press as to what that debate is gonna look like. I don't have much doubt that there will be a JobKeeper 2.0 of some sort, but the details of which just aren't there at the moment. So there's not much point in expending time and energy in trying to work them out and so forth and then to really kind of work to a baseline, prepare for the worst strategy, have a look at what you're gonna do if JobKeeper isn't given to you beyond the end of September, if you're getting it already. How's that gonna impact you? What decisions are you gonna make? Because if there are, therefore, some big changes to JobKeeper 2.0 and you don't get it, you're at least in the mindset of knowing what you're gonna do from there.
So that would be my suggestion is to watch this space but prepare for the worst. Do your planning as though you're not gonna get JobKeeper beyond September and essentially have a series of tactical plays that flow from that planning to say, "If I don't, then I will do these things." Which might include, for example, redundancies. Just on that word, actually, I read an article in the UK when I was in stage zero one night reading lots of online newspapers in the UK saying that redundancy in the UK now, as they start to come towards the end of their furlough scheme, is reaching record search levels. So people have not searched on Google for redundancy at quite the same level as they are now ever before.
And I think that it doesn't tell us a lot, that, other than that that search, I think, will increase for us here, the need for people to consider redundancy. I'm urging people to consider it now on the prepare-for-the-worst basis that you're not gonna get JobKeeper 2.0. So don't presume that you are gonna get it. Start to think about what you're gonna do if you're not. And then, of course, it's good news if you do get it and the rules end up being such that you qualify.
That's latest on JobKeeper. If you've got any questions on JobKeeper, fire them out when we get to that section at the end of the session. Very brief one from me. I was just having a chat with a friend who is a client as well, actually. He's got a business with about 20 people, mainly office based, or were, who have all been working from home in Sydney for the last few months. And he's really personally quite taken to working from home. He loves it. And he doesn't want to go back to the office, and he wants to move everyone to working from home. And I was trying to dissuade him, I suppose, of that the other day. I just...I feel like it's an unnecessary additional risk for businesses to make such big, bold decisions as, you know, we're all gonna work from home. We're gonna get rid of our office and so forth.
I think there's so much unknown at the moment about the consequences of working from home. We don't know what the cultural impact is gonna be. You don't know what the impact on people learning and developing when they're stuck at home is going to be. So there's all sorts of those...let's call them soft reasons, that we find very hard to predict. But if you want some harder reasons, if you're the kind of business that's thinking about going towards a really big, solid move towards work at home, bear these two things in mind. Remember we talked last week about the fact that you still have health and safety responsibilities at people's homes. Very few businesses are well set up as organizations to really appreciate and evaluate their health and safety risks over disaggregated workforce when they're working at, in my friend's case, 20 different work sites he suddenly gets rather than the one that he had before.
So that's a risk but there's also a cost. And one of the things that he will have to consider and we're considering here and everyone else that has people that are going to work from home going forward will need to consider is what will their setup be. And it's not just the technology setup, but you need to consider things like chairs, the way people are set up with their desks and the ergonomics within their workplaces. And you may well end up having to buy them things like that that you've already got some of it in the office. Maybe you're having to duplicate that cost. So there may be a bit of a false economy in thinking that it's gonna be cheaper to have people working from home. So make sure you're looking at these things critically.
We here are going towards a more flexible environment where certain teams are gonna have more option to work from home, and there will be a cost to that for us. There's a double cost in having to rearrange our offices to suit that change and also to make sure that people are properly set up at home. We're willing to accept that cost. We've balanced it against the cost of having to get extra future space and so forth, and it works out for us. But what we're definitely not doing is just allowing total carte blanche of people to work from home. We're really thinking in a lot of detail about what working from home means, how often you're gonna be required in the office, when are you gonna have meetings, what about training. Everything from subject matter training to leadership training and so forth. And, you know, what I'm articulating there are the sort of things that are a bit easier to do, to be honest, when you've got quite a high volume of employees. But if you're a smaller business with less employees, it can be very risky, I think, just to rush to an eternal work from home policy. So make sure you're thinking about those things before you do.
On to Victoria, briefly. I suspect you're all getting more used to the idea of interpreting the rules. They're lengthy, there's been a lot of criticism in the last couple of weeks about how confusing they are, how many gaps there are. Yet, remember we've seen all this before, that, you know, the rules are there. They're there to stay, to be honest, so there's not much point in going back to stage zero and saying, "How bloody unfair that my neighbor can open up but I can't," and so forth. You have to deal with the fact that the rules are there and operate within that environment. Get out of stage zero. Get into stage one in crisis management.
They are lengthy, though, and you do need to really invest some time in getting your head around them, which I suspect, by now, those of you that are affected will have done. The concept of permitted work premises remains a bit confusing at times, and my advice on here has been, and remains, to ask yourself whether you're operating within the spirit of the rules. Now I'll give you a couple of examples of that and also as to how it's confusing. The rules expressly say this about construction, the ancillary services to construction. And it's true of any ancillary services to permitted work premises are entitled to carry on working. So it said, for example, in the rules, that if you are a brick maker, you are an ancillary service to the construction industry that can carry on working and supporting that industry, but it says also that if you are a carpet marker that you are not allowed to do that.
Now I don't know where in the bowels of the government someone sat there and decided that in construction projects, you know, everyone can wait for a carpet but they can't for their bricks, or something like that. I'm sure they've done no proper evaluation of, you know, what brick stocks are versus carpet stocks and so on and so forth. And if you're a carpet maker, I'm sure you're absolutely furious about it.
But, you know, what I can say is this. Don't get stuck in stage zero. That's a reality of the rules as they stand. We've got another three or four weeks of the shutdown in Victoria or Melbourne, if it only goes for the six weeks it was said. And you need to deal with that, and you need to deal within the context of the rules to manage your business through it. Being really annoyed about it doesn't serve any purpose. And in terms of acting in the context and spirit of the rules, I noticed in looking at them, for example, that one of the things it's expressly allowed in the rules is employment services, if they can't be done online.
Now, I think, to be honest, given what Employsure does, we could just about muster up some argument to say that we are in the world of employment services and we don't do it online, typically. We do some online work with our clients, but it's mainly through speaking to and emailing and seeing our staff. And we could, I think, probably muster up an argument to say that we're therefore a permitted work premise and we can all be in our office and maybe even go out and see people. I don't think that's in the spirit, though, of the rules. I don't think they mean Employsure when they say that, and I'm not gonna try and test the boundaries of it. Conversely, I am gonna test the boundaries a bit where it says that we are permitted to go and help permitted work sites with health and safety. Or it says that...sorry, employer associations are allowed to do that. We also help people with health and safety, and I think that's a crucial thing at this time, and we interpret the rules to allow us to go and do that.
So I think what I'm doing there is acting in the spirit of them, and you'll have equivalents in yourself. In your own businesses, don't get trapped in the detail and either become victim to the detail, unnecessarily stopping your business on a technical reading of the rules in some way, if the spirit of the rules likely means that you could and should be operating.
So that's my suggestion. I'm intrigued to hear on here if anyone's got any question. Sorry, if anyone's able to shout out as to whether they've had any issues about being a permitted work premise, whether they've been challenged by the authorities on it and also about worker permits. Have you or any of your workers had any challenges around worker permits? I'd be fascinated to see how it's actually occurring in practice in Victoria. I haven't heard personally of any of our clients calling through with those issues, but if anyone's had them on here, shout out. I know that there has been...you've probably seen the same things I have online about perhaps some overzealous policing in Victoria of a...I saw a pretty shocking incident, actually, of a police person strangling someone who wasn't wearing a face mask. So I dearly hope that's an isolated incident. But if that's the level of zealousness, if that's a word, that's being applied, maybe you're seeing it with regard to the workplace rules as well. I'd be interested to hear.
So that's a bit of Victoria. The last thing I just wanna go onto then before we go on to questions is this Mondelez decision. So what happened almost a year ago to the day in August 2019 was that the federal court handed down a decision relating to how you calculate sick leave, personal and carers leave, for permanent staff members, full-time and part-time staff members. And the way the decision came out was a bit of a shock to employers in that it was not favorable to employers. It meant that they suddenly had increased sick leave liabilities to their staff, particularly part-time staff. And the reason for that was this, is that you'll be familiar with the concept that you get 10 days of sick leave a year, and that that rolls on year to year, subject to anything in your reward or industrial instrument, but as a general principle, that's what happens. And what they basically said is that you get 10 days, come what may. So if you're a part-timer that only works 1 day a week, you are still entitled to 10 days of sick leave over the course of the year. So you could take 10 of your 1 days off, which would essentially amount to 10 weeks, not 10 days of work, and you're entitled to be paid for all of that.
So you've got this incredibly high entitlement to sick leave for part-time workers. And I mean, the real oddity of it was that not only was there the day issue, but on top of that, your sick leave was based upon the number of hours that you were due to work. So you were getting 10 times...let's say you had a 12-hour shift on 1 day a week. You were getting 10 times that, which is 120 hours, 10 days of sick leave over the course of a year. It was actually more than an equivalent full-time employee doing, say, 38 hours, 9 to 5, Monday to Friday was getting.
So it was a really odd decision, but it was a real pain for employers, it was a pain for payroll technology providers and payroll professionals to try and work out exactly what it was that part-time employees were meant to receive by way of sick leave. Now what happened yesterday was that the High Court turned around and said, "No. That's wrong. That's not the way it should be calculated." The concept of 10 days of sick leave, you should look at for a part-time employee. You should look at what are their ordinary hours over a 2-week period, or you look at what one twenty-sixth of their annual hours are. So in essence, it's saying, "Look. Over the course of a two-week period or in general terms, how much is this person working?" And they get 10 days based on a prorated hourly amount rather than on a full daily 10-day amount.
So someone that works the full 38 hours a week full time gets a full 10 days of full-time sick leave. Someone that works half that amount will, in essence, end up with 5 days, or 5 times 19 hours a week. So that's the way it roughly works out. Now what do you practically need to do about it? You need to, first of all, speak to your payroll provider, if it's not internally done, who will in turn need to be looking at your payroll system and checking, number one, did you even know this Mondelez decision existed this time last year? Because maybe you didn't, and you didn't change your system and you've been paying it the old way, which is all the...the decision's done by the way. It's just said that decision last year, it was wrong. The thing we were all doing before that is the way we should go back to. So you maybe never changed your system, so it doesn't affect you and it doesn't matter. Maybe you did change your system and you now need to revert back to the old way of doing it going forward, and your payroll provider should be able to do that in line with whichever system it is that you're using.
You'll then need to understand going forward what the inputs are to calculate the appropriate amount of personal carers leave. And then, finally, you'll need to do essentially an audit going backwards to see if you've been overpaying anyone over the course of the last year. So let's say you did apply the decision of the federal court last August and you had a part-timer who's had a lot of sick leave over the course of the last year. You might well have paid them for that sick leave over and above what actually they should've been entitled to. Now what you're gonna do if you find that that is the case is very tricky. And, really, you need professional advice from someone like us on that to work out what the process is gonna be to go back to any employees that have been overpaid over the course of the last year.
But just a final thought on it is that this is a good decision for employers. It's a pleasing decision in the context of the crisis. And probably to give a...with the decision on, you know, the concept of permanent casuals was one of the biggest thorns in employers' sides that they needed to deal with. So let's hope that the High Court looks at that permanent casual decision in the same way when that comes up and reverses the position on that so that employers aren't stuffed with having to pay a whole day of entitlements to permanent casuals.
So that's the stuff on the Mondelez decision and we're gonna go over to Stu and ask some questions, I hope.
Stu: Sure, Ed. I'll kick off with just a couple of comments, if I may. Mary Louise says, "Hi, I'm joining for the first time." Debbie says, "Hi, Ed and team. I'm new to the group." And Graham says, apropos of your opening introduction, "Great reminder of priorities, Ed."
Ed: Good. Thank you for the comments. That's good. It wasn't scrolling. I thought I only saw three things. I thought maybe it's just my mom watching today and no one else. But no. There's a lot of people with a lot of questions. Yeah.
Stu: There's many, many, many hundreds. And this one from Maria is being watched with some anticipations. And you've introduced it earlier on, but let's go back on it. "Do we pay this quarter for those new eligible employees now, or wait for legislation?"
Ed: Sorry, for the JobKeeper 2.0, I'm guessing this is...
Stu: Yes.
Ed: You need to wait for the legislation and understand whether you're going to receive JobKeeper 2.0 and whether the employees are eligible. So it's been suggested that the eligibility date is gonna move for employees, but we don't know that to be the case until it's actually legislated.
Stu: This is from Nathan. "If we have a staff member who takes annual leave for three weeks and asks to be paid at the start of the three week period, which we have to do, do we then pay them on top of the $1,500 in the middle, as otherwise we will not have paid them $1,500 for a fortnight?"
Ed: So it's a really tricky one, Nathan. So there was a decision relating to Qantas, who seemed to be getting a kicking from all directions at the moment, but they...this concept of whether you have to top up based on an averaging or based upon the receipt of what people specifically got over the course of a week or a fortnight. From recollection...I'd need to go and check this, and maybe the advisor that's replying to these questions...do we know who that is today? Whoever it is that's replying, if you guys could just check this. I mean, my recollection was that the Qantas decision went against Qantas, and that, in essence, you can't average it out, what someone's...and do it the employers-friendly way. You need to do it the employee-friendly way. But we'll double-check that for you and reply.
Stu: And also with regards to JobKeeper from Sara, "Should we be paying the $1,500 to newly eligible staff in our next pay run or wait just a little bit longer?"
Ed: Definitely wait longer, Sara. Yeah, there's no such thing as a newly eligible member of staff yet, because it's not been legislated.
Stu: From Jenny, a JobSeeker question. Let's see if you can help. "Hi, Ed. What is the current position on people who quit their job for JobSeeker? Is it paid straight away, still?"
Ed: I don't know, Jenny. Sorry. Yeah. I love your optimism, thinking I would be able to help with that, but I don't know what the position is...what JobSeeker is to what the turnaround time and the application process is for that.
Stu: From another Jenny, Jenny S. "I have a casual employee who signed a contract with me that says four weeks notification's required for termination of employment, but she has just resigned with three days' notice saying that four weeks is not fair. That is not valid because she's a casual. Can I enforce the four weeks notification because it's agreed in the contract, and if she doesn't comply, can I press charges for any loss of revenue, that is if I can't replace her in time?"
Ed: Hi, Jenny. I'm smiling a bit. I've been through this before, myself, this sort of... Just as a starting point, there's an incredible frustration for employers, whether the person's casual or permanent, as to the period of notice that you may have agreed with the employee. And then that employee doesn't serve it out and you're left saying, "Well, what can I do? Can I..." as you're suggesting, "...sue for damages, essentially, for anything that it's cost me? Can I withhold any wages that are due?" And the truth is that your starting point on all of those questions is that the employer's got very little recourse, frankly. Very little forms of the recourse are practical.
You know, if you lost money because the due notice wasn't given, actually recovering those damages would be next to impossible to actually go through that process. So you're already on a bit of a hiding to nothing on it. I think yours is made worse by the person being a casual. So a true casual wouldn't typically have that four-week notice period that you're describing. What you'd normally have is just a level of reasonable notice, which someone that hasn't worked for you for very long is unlikely to be required to give you four weeks' notice even if you've got it in the contract on a casual basis, because in reality, what that sort of shows is that they probably weren't a casual. And depending on how long that person worked for you, I'd probably not be pushing the point that that four weeks' notice is due in case they bite back and say, "Well, maybe I wasn't a casual. Maybe you owe me some crude holiday pay," or whatever else it might be.
So, frustrating. I hear you. I've been there but, unfortunately, I think probably something you're gonna have to let go.
Stu: And Ed, we've touched on this before but worth circling back on. From Simon, "Hi. With some employees now starting JobKeeper from August the third, we have not seen any updated employee nomination form for this group. So should we be paying the JobKeeper top-up to them?"
Ed: So if the eligibility is an employee eligibility question, we don't know yet as to any changed eligibility rules or criteria for employees. Wait for the legislation. If it's an employer eligibility thing and maybe you've become eligible for August in ways that you weren't before, then you would need to go through the JobKeeper application process and no doubt then speak to your accountant about that eligibility as well.
Stu: This from Christine. "If someone goes on maternity leave, can we still claim JobKeeper for her?"
Ed: There are specific rules relating to that were all replied to on here as well, but there are eligibility rules that you should probably talk to your accountant about as well. They're a bit tricky, the maternity leave ones.
Stu: From Naomi, "Does the pro-rata style of personal leave also apply to businesses with an enterprise agreement?"
Ed: Pro-rata style and personal? It depends on the terms of the enterprise agreement. Assuming the enterprise agreement reflects what's in the Fair Work Act, the Mondelez decision will likely impact that. So if there was the level of vagueness and space for interpretation...and actually the Mondelez decision itself is about an enterprise agreement. It's not purely about the Fair Work Act. But if your enterprise agreement more specifically defines how personal carers leave is calculated, then know the decision is unlikely to affect it. So you need to get some advice on that.
Stu: And this question from...
Ed: From us, preferably.
Stu: Yes, of course. This question from [inaudible 00:32:55] apropos of what you had mentioned before about personal carers leave. She says, "So if all staff are full time, then no change to personal carers leave?"
Ed: Exactly. Yeah, I mean, assuming you've been calculating it in the right way, it's probably worth just double-checking. But, yeah, in essence, if you're a business that doesn't have odd-shaped shifts and hours and people are working 38 hours a week on a full-time basis, then you'll no doubt have been accruing based on 2 weeks of 38 hours. The only difference is that it was the way in which you accrue has changed. So it was previously you were accruing days based on a calculation of, you know, one day for every X number of days that you worked. It's now being done on an hour's basis. So you calculate based on a multiple of hours worked multiplied by 1 over 26.
So yeah. So there is still a difference in practice made. It's not as significant for full-time employees, but the way in which you calculate it. Also the way in which you take personal leave and it gets subtracted from your balance has been clarified and is a bit more nuanced than was suggested under the Mondelez decision. So under the Mondelez decision, it was said that you should get paid sick leave based on the hours that you would've worked on that day. So let's say you would've worked 12 hours on a day, even though your ordinary hours were only 8 hours on that day, if you would've worked the 12 hours on that day, Mondelez said that you should be paid 12 hours of sick leave.
What the clarification now from the High Court says is no, you only get paid sick leave on your ordinary hours rostered for that day. So it's the...that you would only get paid on the eight hours and the balance subtracted...sorry, the amount subtracting from your balance would be eight hours.
Stu: This is from Amanda. "If our business was not calculating 10 days leave for part-time employees, do we need to go back and recalculate leave? And if so, for what period of time?"
Ed: So I take that, Amanda, that you're basically saying if we didn't change with the decision last year, presumably only because you're a legal wiz and you knew that the High Court was gonna overturn it a year later. But the answer to that is go and check. Just check to see what...if you've got someone that does your payroll for you, you go and have a chat to them about that. Get the comfort of checking that you've done the right thing and that you don't need to recalibrate in any way.
Stu: From Beverly. "Can I clarify whether sick leave rolls over each year if untaken?"
Ed: It does, yes. So it rolls over. It doesn't typically get paid out when someone leaves. You need to just be sure of what your enterprise agreement or industrial instrument says and so forth. But yes, it rolls over year to year, so if you don't use it, you don't lose it, typically.
Stu: From Marie Claude, "If we had changed our way of calculating the leave for the year, do we need to go back and readjust everything from the beginning to the way it was, or just change everything from this point going forward?"
Ed: Technically speaking, it means that you need to go back and recalculate because a couple of things. You're not just scrubbing the slate clean and starting to add to whatever the balance is. You've gotta get the underlying balance right for the employees so they know how much leave they've actually got accrued. And second of all, because you might end up in situations where you have employees that have been overpaid more likely than underpaid. But you need to just go and check to see that you haven't done the wrong thing either way on that in the intervening period.
Stu: From Kim, "Can you please elaborate on permanent casual leave? What are permanent casuals entitled to at the moment?"
Ed: A good question, Kim. So you might remember there's this decision called Rossato and WorkPac that came out that sort of everyone was up in arms with in the midst of COVID and...well, I think probably still in the midst of that. But in the midst of COVID and JobKeeper, this decision came out that basically said, "If someone that you might call a casual worker but there are certain characteristics around their work..." Which is broadly speaking that they look a bit more like they're permanent workforce, then in which case they...notwithstanding the fact that their pay is being enhanced to compensate for the absence of things like personal leave or annual leave, that they in fact accrue that and, therefore, they have that entitlement. So it may be that they have taken time off because they're sick and you haven't otherwise paid them or that they may now be saying that they're entitled to paid holidays and so forth.
The difficulty is with that decision is that it's very much like the Mondelez one. It's being appealed, so we're basically sitting somewhat in limbo at the moment waiting to see if the High Court's gonna agree with what is now being said and that you do have to pay permanent casuals this extra money.
And for employers, the trouble is that someone that comes to you today and says, "You owe me this money" is technically correct if they can be satisfied or show that they are in the category of casuals that gets these entitlements. What we're advising people to do is to try and manage that situation by saying, "I understand that decision is being appealed. At this stage, I'm not proposing to start paying out entitlements like that to any casuals and will adhere to whatever the decision is when it comes out through the High Court in due course." But there's a risk that you get some pushback from employees on that, and you might end up seeing people starting to go to the Fair Work Ombudsman and the Fair Work Ombudsman then challenging employers who are not paying their permanent casual staff properly.
Stu: And just an acknowledgement from our tech guys. "Apparently, there is a transmission issue for some people. The majority are getting a good stream, but there is some interruption to some people. We're looking into it."
Ed: It might just be this stuff's bloody confusing and it's not a transition. It's really...you know, I'm finding I'm sort of confusing myself today. They're two very, very tricky issues that it's quite hard to advise in the abstract on. You know, the truth is, with the sick leave decision, for good measure, you should be going back and checking what you did and how you've done it over the last year, but you definitely need to go and look at the sick leave balances of all of your permanent staff and then the casuals decision is a slightly different one, but there will be lots of tricky situations coming out for people asking for entitlements that are currently entitled to them on the basis of the Rossato decision, but that may change.
Stu: Okay. This question from Klara. "Do I pay a casual JobKeeper...she has been on it until now...for the six weeks leave she is about to take?"
Ed: So you will receive JobKeeper, on my understanding, for...if it's a person who has otherwise been getting it. So even though they go away on leave and they're not working that they're...because they're considered to be this regular and systematic style of casual. But I think that you'll carry on getting the JobKeeper.
Stu: Interesting one from Jenny.
Ed: Sorry, or I should say as well that if you...obviously, JobKeeper, you pass it on. You don't keep it. But have a chat to your accountant, though, if you'd see whether you've got any obligations about notifying the ATO if someone is not working with you during that period. But, you know, my understanding is that you'd receive it and pass it on.
Stu: And this is a follow-up question from Jenny from a little earlier. "If the employee leaves without handover and without uploading her work documents to Google Drive as required for the handover, can I withhold her pay? We pay in arrears until she completes her handover fully."
Ed: So who asked the question?
Stu: This is Jenny.
Ed: Jenny. I was wondering if it was the same person who'd asked about the employee leaving without giving due notice.
Stu: I think it might be.
Ed: So yeah. Jenny, you are in a tricky situation. I don't wanna just keep saying that today. I wanna try and help you out if I can. So if an employee has left and they may have some contractual obligation to return certain information to you and likewise, you're not technically permitted to deduct from their pay. Withholding pay is a very tricky situation as well. You're not lawfully meant to do that. But you could pick up the phone to this person, and I think this is a starting point for this is it just sounds like everyone's gonna fall out pretty quickly unless you do this and have a chat to them and say, "Look, I'm not willing to do your final pay until you've been through these stages." See what their reaction is and see if you can encourage them just to play sensibly. But it sounds like if you're not careful, you guys are gonna go from naught to 60 a bit too quickly and end up in a dispute.
Stu: This one from Janet. "I have a question about accruing annual leave. At the moment, all my staff are working part-time receiving JobKeeper. Should their leave now be calculated based on hours worked?"
Ed: Quite testing me out today, guys. These are questions I haven't thought of for a while. So if they have been...essentially, there's been a JobKeeper-enabled work direction that has reduced their hours, my understanding is...and whoever it is. I don't know if it's Sam advising on here today. Shoutout if I get this wrong, but my belief is that they accrue based on the hours that they are doing, not on what their prior arrangement was.
Stu: From John. "Hi, Ed. If someone is a casual and gets a casual loading, my understanding is the loading should cover for leave entitlements." Question.
Ed: If they're a true casual, as it's sort of sometimes being called at the moment, the problem with this Rossato decision is this concept of permanent casuals that are getting casual loading, but you still get leave entitlement as well. But if someone's a true casual and doesn't follow in the definition of a more permanent casual under this confusing Rossato decision, then they...yes, you're right, that their equivalent of leave is covered for in that loading.
Stu: From Deb. "If someone is a casual and works different hours most weeks, are they classed as a permanent casual?"
Ed: It's a bit more complex than that, to be honest. You need to look at the picture as a whole. Doesn't matter whether they just work different hours each week. It depends on how long they've worked for you. The best litmus test I could give you to sort of scratch the itch, so to speak, and work out whether you need to get more involved in the analysis of this and whether you've got a risk is try and think of it like this. So if you just suddenly took away the hours from a casual or vice versa, they just said, "I'm not doing those hours this week, this day, this month." Whatever it is. And the response by either of you was, "What the hell?" And you thought to pick up the phone and ask the person and say, "What's happened there? I'm relying on you," or vice versa, then you've probably got a bit of a tricky situation that you need to explore. And there are, obviously, plenty of casual situations like that which are not true casual, and we've heard one of them on here today where a casual being asked to provide four weeks' notice doesn't sound like a true casual relationship.
You know, true casual relationships are often seen in things like hospitality where people will give a level of reasonable notice to say that they can or can't attend the shift, but there's no recourse or concern if they can't. That's their entitlement. And vice versa that you may or may not give them shifts and there's no expectation of the work from the worker.
Stu: And Ed, just an update from our tech guys. "If your stream is freezing, press the 10-second back button. It seems to be working for a lot of people."
Ed: Great. Did you hear that, everyone? If your screen is freezing, press the 10-second back button. I love how we say tech guys. That sounds like we've got sort of a whole team dead...it's not really just us fumbling around pretending to be the tech guys.
Stu: Correct.
Ed: Yeah, okay. Good, good.
Stu: Sounded good at the time.
Ed: Yeah. Definitely. We haven't got like a hotline to Mark Zuckerberg saying, "Come on, Mark."
Stu: No, we've got Stu.
Ed: Yeah. Yeah.
Stu: From Sara. "Does the permanent casual decision apply only to full-time casual staff, or part-time as well?"
Ed: Sorry, the permanent casual decision? So part-timers already get paid entitlements or accrue entitlements to annual leave and sick leave as well. So it's not relevant to them. Basically, what it does is it says that there's this class of casual workers that start to get treated like they're actually part-time workers notwithstanding the fact that actually they probably get paid a better hourly rate than their colleagues that are in permanent part-time roles.
Stu: From Tony. "Our current leave policy says staff are to provide evidence of sick leave from one day off. Can this also apply to casual staff?"
Ed: Hi, Tony. Risky one, applying that to casual staff, because unless they're falling within this Rossato-type decision, they don't get sick leave. So there's no obligation for them. They can say to you, "I just don't wanna turn up," not that "I can't turn up because I'm not well." The true casual doesn't have to turn up in that way as long as they give you a reasonable notice of it. And so if you turn around and say to someone, "Well, you've gotta justify why you didn't turn up." That starts to sound to me like you might be having a permanent casual situation that you need to get examined to make sure you don't have risks and liabilities associated to that.
Stu: From Debbie. "I'm in Victoria and an employee wants to take time off. They are full time. What are their entitlements regarding leave?"
Ed: Hi, Debbie. So assuming you're operating in some level or way or...and that employee is working. So they're entitled to their normal leave process to say they...giving you notice and you agreeing to that leave and them using leave that's accrued and they're entitled to under the Fair Work Act or otherwise.
Stu: Time for one more?
Ed: Yes, please.
Stu: Okay. From Loraine. "Hi, Ed. I saw you on Sunrise this week talking about redundancies. It's something we sadly may have to consider moving forward. You mentioned the importance of the conversations between employees and employers in these situations. Do you have any advice about how to broach that? We've never done it before, and it's a tough conversation to have."
Ed: Yeah, it really is. There are two versions of this advice, I'd say. Try and think always of the law relating to anything in the employment redundancy in this particular case. It's like the safety net, really, that you should really be trying to operate to a better standard. And what the law says is a safety net is that you need to warn employees, and you need to consult with them. And what that means is giving them due warning that there is a risk of a redundancy, not that you have decided that there is a redundancy, that you must not go into this with a closed mind. You must go in with an open mind. The law requires you to do that. And that you will meet with them or receive from them any feedback or proposals as to how redundancy could be avoided or the situation could be handled in a different way. So that's the basic starting point. I suppose how do you do that in terms of tips with that...transparency underpins all of this. It's the same as any form of communications we talk about on here. Just make sure you're clear, concise and consistent. So don't, you know, tell employee A in the corridor but forget to mention it to employee B and C, because they'll start to feel like they're getting picked on and maybe that they're being preselected.
Be as open and honest as you can. Make sure you back up whatever you say in writing. So, for example, if you wanted to explain that the business was suffering from the crisis and there was...make impact to the crisis on your business, you might not go into full...you know, you're not required to give full financial details of that, but you might give a sense of the circumstance to the employees when you are warning them and therefore then when you consult with them, just so they've got enough information to engage in a healthy conversation with you about it.
I'll give you an example about what I mean with that. So as a business during the crisis, we have defined what we call our paying client number. So we have about 27,000 clients. A number of those, we have said to them that they can have a payment holiday based upon their financial pressures. And we measure that number by saying how many of our clients are actually paying us. And that's a critical measure that I've told the entire business that we monitor week to week. And I explain that to them each week.
So if we ended up going to a situation where...touch wood, and, fortunately, we're not at this stage yet, but we needed to make redundancies, I would be explaining it to them through the paying client number and saying, "Guys, as I've explained each week, we've been monitoring this number. As you've seen for a number of weeks it's been going in the wrong direction. Let's say if we were ending up in a redundancy process, we've consequently had to look at making cost reductions in order to achieve the necessary business goals." And I'd put that in writing. I'd then invite them to a meeting to discuss it with me, probably individually. I might warn them as a group, but I'd individually give them the opportunity to speak to me. So it's not an easy process. It's a very emotional one as well. So do take care in doing it.
Stu: And Ed, just a couple of comments to wrap up.
Ed: I've got something to wrap up on as well after that, but I'll take a comment as usual. Only if they're nice ones.
Stu: Two nice ones. A compliment for both you and Ed from Marie Claude. "Thank you so much. You're the first people in Australia that have said my French name perfectly."
Ed: Oh, yeah.
Stu: And from Karen. "Hi, Ed and team. Thank you again. Just finished my Blip training and so excited to get all the info in and start using it. Woo-hoo. Thanks for your words and wisdom each Friday."
Ed: Great news, Karen, and now I feel under pressure, Marie Claude. Thank you. Please don't mention Stu when handing out compliments. Just keep them directed to me. Thank you. No, the thing I wanted to talk about is that I went to see a...they're not actually a client of ours, but they are someone that works on...works on here...watches this, and has previously been a client in prior roles. Mel's now at a charitable organization called Fighting Chance. I went to see them yesterday. I'd say it was just one of the best meeting I've had in ages. No offence to anyone else who's watching that I had a meeting with recently, but yeah.
It's an organization that just does the most amazing thing. In various ways, it's helping disabled people to get into the workplace. And I saw one branch of this yesterday, for example, which was an office of about 150 people all working on...doing data input and digitalizing big paper storage, document storages for a lot of big companies like banks. And there are people there with various forms of disability who are inputting the data from those hard copy documents into digital systems, and it's providing the opportunity to understand how to work in an office-based environment. A lot of the subtleties involved in that, from the socializing through to the how to work with managers and so forth.
It was just a fascinating thing to see this organization and how it's grown, and it really opened my mind. It's gone from a handful of employees to now about 400 employees. I think it's a remarkable story. I thought I'd just shout out on it that I just really enjoyed my trip there yesterday. It was very eye-opening for me and inspired me through the crisis and seeing how they're dealing with the crisis with particular challenges that they are having. And it was fascinating to see from both a personal and workplace relations perspective.
So that's it from me. Nice to see everyone, even if I've been a bit [inaudible 00:55:18] today. Blame Zuckerberg, not us. So thank you very much. We'll speak to you next week.

FAQs

What is the role of Fair Work Australia?

Fair Work Australia is the former name of the Fair Work Commission. The Fair Work Commission is Australia’s national workplace relations tribunal. The Fair Work Commission is the independent body responsible for:

  • setting wage rates;
  • creating and changing modern awards;
  • approving enterprise agreements; and
  • resolving disputes
What is the purpose of the National Employment Standards?

The National Employment Standards form part of a safety net that serves to provide fair, relevant and enforceable minimum terms and conditions of employment.

What are modern awards?

Modern Awards are legal documents that outline minimum pay rates and conditions of employment for employers and employees in a particular industry or occupation.

What is the Fair Work Commission?

The Fair Work Commission is Australia’s national workplace relations tribunal. The Fair Work Commission is an independent body, responsible for:

  • setting minimum wage rates;
  • creating and changing modern awards;
  • approving enterprise agreements; and
  • resolving disputes including unfair dismissal claims.
Who set up the Fair Work Commission?

The Fair Work Commission was established by the federal Labor government in 2009.

What is the role of Fair Work Ombudsman?

The Fair Work Ombudsman is an agency of the Australian Government that serves to provide advice and information in relation to the federal workplace relations system. The Fair Work Ombudsman has the power to enforce workplace laws. They may also seek penalties for breaches of workplace laws. The Office of the Fair Work Ombudsman is currently held by Sandra Parker.

What is the difference between the Fair Work Ombudsman and the Fair Work Commission?

The Fair Work Commission is an independent body, responsible for:

  • setting minimum wage rates;
  • creating and changing modern awards;
  • approving enterprise agreements; and
  • resolving disputes including unfair dismissal claims.

This is distinct from the Fair Work Ombudsman, which is responsible for:

  • investigates workplace complaints
  • conducting audits to ensure compliance
  • enforcing the Fair Work Act 2009.
What does the Fair Work Act do?

The Fair Work Act 2009 is the legislation that regulates the federal workplace relations system. The Fair Work Act 2009 sets out the terms and conditions of employment and sets out the rights and responsibilities of employees, employers and employee organisations in relation to that employment.

Why was the Fair Work Act 2009 introduced?

The Fair Work Act 2009 was introduced to govern Australia's workplace relations system and legislate for the entitlements available to Australian workers. The legislation aims to provide a safety net of minimum entitlements and enable flexible working arrangements and fairness at work.

What does the Fair Work Act 2009 cover?

The Fair Work Act 2009 covers ‘national system’ employees and employees. Employment that is not covered under the national industrial relations system is regulated by the relevant state legislation. Whether an employer is a national system employer depends on the location of the employment relationship (state or territory) and, in some cases, the legal status and business of the employer. The Fair Work Act 2009 covers the rights and responsibilities of employees, employers and employees’ organisations in relation to employment.

What are employer responsibilities under the Fair Work Act 2009?

All Australian employers are required to meet their obligations contained within the Fair Work Act 2009. The responsibilities are wide ranging and include, but are not limited, to:

  • abiding by the minimum entitlements contained within the National Employment Standards and any applicable modern award;
  • paying the appropriate wage;
  • keeping appropriate records (as prescribed within the Fair Work Regulations); and
  • not taking (or proposing to take) action against employees for prohibited reasons.
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