Business Sponsor and JobKeeper Enabling Stand-Down During Covid-19

Following the recent introduction of the JobKeeper scheme and its eligibility, we have received a lot of inquiries from our prospective and existing clients, who are currently Standard Business Sponsors under the Migration Act, whether their current employees would benefit from the scheme.

 

We have prepared a quick summary in this article.

 

Types of Stand Down available

We understand that there are 2 forms of “stand down”:

 

There are a few key differences between a JESDD and being stood down under the existing stand down provisions in the Fair Work Act:

  • Employees must be paid if they are stood down under a JESDD, but not if stood down under the Fair Work Act stand down provisions.

  • A non-JESDD stand down must comply with other relevant employment instruments (such as a contract or enterprise agreement); a JESDD does not.

     

JobKeeper Enabling Stand Down

Once a JESDD has been issued, an employee on a JESDD stand down must be paid either the JobKeeper payment or their usual pay for any hours that the employee does work – whichever is more. The employee’s hourly base pay rate can’t be reduced.

 

S789GDC states that the JESDD is ‘authorised’ only if para s789GDC(1)(e) is met. This paragraph makes reference to jobkeeper payments, which enlivens Rule 9 of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020.

 

Who are the eligible employees?

Notably, rule 9 defines ‘eligible employee’ to mean Australian resident within the meaning of s7 of the Social Security Act 1991 which rules out holders of 457/482 visas.

 

If my business decides to sign up for the JobKeeper scheme, what are some of the consequences?

We understand that the policymakers advised Standard Business Sponsors to notify SBS monitoring when Sponsors have elected to use JESSD without regard for the implications to employment laws. We feel that when the dust settles, s526 FWA may be the avenue for complaints to the FWC, exposing a Sponsor or Nominator’s suitability for future applications, this is also known as adverse information.

 

We are also of the opinion that a conflict may arise for certain visas containing the ‘financial viability’ provision if a Nominator would to participate in the JobKeeper or Rent Reduction scheme, which forms part of the requirements for most employer sponsored visas.

 

In general, our view is that it could be a concern for Sponsors to use JESDD without the aid of practitioners specializing in both employment and immigration law. Rather, the simpler and safer approach of Leave Without Pay (LWOP) is preferred.

 

COVID19 Taskforce at Agape Henry Crux

 To tailor your particular needs during COVID-19 period, we have put together a team of lawyers who are experienced in dealing with the Sponsor Monitoring Unit within the Department and response to the department before they impose a sanction to the business.

If you have done any of the above-mentioned actions without realizing the consequences, we are here to guide you through the complex landscape of migration law under the current uncertain times, to ensure that your business or company directors are not prohibited from sponsoring further overseas employees in the long run. 

Please contact us on 02-72002700 or email us to book in a time at info@ahclawyers.com.

 

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