COVID-19: Employment and WH&S implications

Managing your health and safety obligations and JobKeeper eligibility

As COVID-19 restrictions begin to ease, it is essential to stay ahead of the constantly evolving situation. To help you understand your workplace obligations, and if your organisation is eligible for the JobKeeper program, we have addressed some of the common questions asked by clients below.


Your key questions answered on issues in the workplace

Contacts: Ric MorganVeronica SiowSimon Dewberry
Last updated: 9 April 2020

How does JobKeeker work and what does it mean for my business?

Businesses that are eligible for the JobKeeper scheme will have more flexibility under the Fair Work Act to make changes to manage the workplace impacts of the COVID-19 pandemic, such as standing down employees or reducing their hours.

What is the JobKeeper scheme? 

Eligible businesses can access a wage subsidy of $1,500 per fortnight for each eligible employee from 30 March 2020.

Who is eligible for the JobKeeper scheme?

Businesses with an annual turnover which is, or is likely to be, $1 billion or less are eligible if they estimate their GST turnover for a month or quarter represents a reduction in turnover of 30% or more when compared to the equivalent period in 2019.

Businesses with an annual turnover which is, or is likely to be, more than $1 billion are eligible if they estimate their GST turnover for a month or quarter represents a reduction in turnover of 50% or more when compared to the equivalent period in 2019.

Where businesses engage their employees through a special purpose entity, the combined GST turnovers of related entities who utilise the services of these employees will be used to calculate turnover reduction. For further details on the eligibility requirements, click here.

Eligible employees are those:

  • currently employed (including those stood down or re-hired);
  • full-time, part-time or regular and systematic casuals with at least 12 months' service with the employer; and
  • not receiving a JobKeeper Payment from another business.

If a business is eligible to participate in the JobKeeper scheme they should nominate all of their eligible employees. That is, a business should not apply for the subsidy in respect of some eligible employees but not others.

What additional flexibilities are available to eligible employers?

Eligible employers under the JobKeeper scheme will be able to:

  • stand down an eligible employee who cannot be usefully employed as a result of COVID-19 or government initiatives to slow its transmission;
  • unilaterally reduce an eligible employee's hours;
  • unilaterally change an eligible employee's duties and work location if it is safe, within the employee's skill and competency, and reasonably within the scope of the business; and
  • agree with an eligible employee to change their work days or take annual leave (provided the employee keeps two weeks of annual leave).

These flexibilities supplement existing rights under the Act, awards and enterprise agreements. They will only apply until 27 September 2020.

Limits on eligible employers using these flexibilities

An eligible employer can only use these flexibilities under the JobKeeper scheme if they:

  • reasonably believe it is necessary to save the eligible employee's job; and
  • give prior notice (generally three days) and consult with employees and their unions.
Does an employer have specific obligations to protect workers from COVID-19?


Employers (who, under work health and safety laws, are persons conducting a business or undertaking (PCBUs)) have a primary duty to ensure, as far as reasonably practicable, the health and safety of their employees and all persons in their workplace. This duty requires employers to take steps to ensure  so far as is reasonably practicable:

  • their workplaces (which extend beyond their physical offices) are without health and safety risks; and
  • they have safe systems of work.

In the current COVID-19 environment, this duty would require that employers at least:

  • provide information about health risks posed by contact with the COVID-19;
  • provide instruction about ways to minimise those health risks; and
  • monitor, assess and take steps to mitigate the risks that COVID-19 poses to health and safety of workers in their workplace.

This means:

Can an employer restrict business travel by employees?


Whether or not any employee travels in connection with their employment is within the control of the employer.

Can an employer direct an employee to travel to particular places?


In normal circumstances, an employer can direct an employee to travel as part of their employment arrangements. However, where there are travel advisories recommending not to travel, or where there are government prohibitions in place, such a direction may not be reasonable and an employee may have a valid basis for refusing to comply with the direction.

In addition, an employer needs to consider their duty to the employee when considering directing travel to places – or, indeed, particular meetings or conferences – where this exposes the employee to unreasonable risk.

Can an employer restrict personal travel by employees?


An employer cannot direct an employee to not travel in their personal time.

However, where that travel presents a risk to other employees, it would be open for the employer to require the employee to self-isolate on their return. Evaluating whether this is necessary should be undertaken in accordance with an appropriate risk assessment, including by reference to any government travel restrictions.

The employee may be able to self-isolate and continue working from home. However, where this self-isolation impedes the employee's ability to perform their duties, the employee may need to use their accrued leave. The employer should not direct the employee to use their personal leave or annual leave but, rather, inform them that they may access this form of leave if they do not want to be on unpaid leave.

Can an employer direct employees to work from home or not attend their place of work?


Where the direction is based on a more general policy of 'social isolation' adopted by the employer, in the absence of a government direction to do so, an employee may be able to refuse.

However, the nature of COVID-19 means it is quite likely  an employer will need to close a workplace, or part of a workplace, for a period of time, to assess the risk of infection, and clean  the workplace to reduce the risk of further infections from residual virus within it. In such circumstances, the employer can direct  employees to work from home, or from another location.

It would also be open for the employer to make this type of direction in relation to specific employees where it is necessary for an employee to self-isolate because they are at risk of having COVID‑19, as a result of travel, or exposure to others who are infected, or because they are otherwise unwell.

Employers should consider their work from home policies to evaluate whether they are appropriate for the current circumstances.

Can employees refuse to come to work?


Where the refusal is based on a general concern about being infected, an employee can't refuse to come to work. However, if there is an unreasonable risk to the employee's health or safety, an employee may have valid bases for refusing. This might include where co-workers are known to be infected, or have travelled to at-risk destinations without quarantine or self-isolation.

Is the employer responsible where an employee is unable to come to work?


Where an employee is unable to attend work because they:

  • have COVID-19 or are otherwise quarantined;
  • must self-isolate due to a government isolation requirement;
  • have to care for others who are subject to quarantine or isolation requirements; or
  • need to care for children who are unable to attend school as a result of school closures

these are matters within the employee's responsibility.

However, the employer should allow the employee to work from home if they are well enough to do so and it is possible for them to carry out their duties at home.

Otherwise, the employer should inform the employee that they may access their personal leave or annual leave, or otherwise can take a period of unpaid leave.

This may be different where an employee has contracted COVID-19 as a result of exposure at the workplace.

Can an employer stand down employees or require them to take annual leave?


If an employer must shut down its operations for a period of time and its employees cannot be usefully employed, the employer could rely on the 'stand down' provisions contained in the Fair Work Act 2009 (Cth) to stand down its employees.

An employer can direct its employees to take annual leave (or other forms of leave) if an applicable modern award or enterprise agreement permits such a direction to be made (eg in circumstances where an employee has excess annual leave).

Any such direction must be reasonable and, in each case, specific requirements will apply, including providing the employee with advance notice.

If an employer is not permitted to direct their employees to take a period of leave, the employer can invite their employees to access their accrued leave, or, alternatively, take a period of leave without pay.

These are matters within the employee's responsibility.

However, the employer should allow the employee to work from home if they are well enough to do so and it is possible for them to carry out their duties at home.

Otherwise, the employer should inform the employee that they may access their personal leave or annual leave, or otherwise can take a period of unpaid leave.

This may be different where an employee has contracted COVID-19 as a result of exposure at the workplace.

Are employee infections workplace injuries, and if so, what does the employer have to do about it?


Whether or not an employee who contracts COVID-19 has a workplace injury will depend on the circumstances of their infection. In many cases, it will be difficult to determine whether any infection occurred in the workplace; at least until there has been some tracking and contact tracing.

Where there is a risk that the infection is a workplace injury, an employer needs to consider its obligations to investigate and report these infections. The employee may also have particular rights that arise where the infection is a workplace injury (eg in relation to workers compensation).

Has the Fair Work Commission made any changes to awards in response to COVID-19?


On 24 March 2020, the Fair Work Commission varied the Hospitality Industry (General) Award to introduce temporary changes in response to COVID-19, following government orders to shut down various parts of the hospitality industry. Then, on Saturday 28 March 2020, the Fair Work Commission introduced temporary changes to the Clerks – Private Sector Award in response to the impacts of COVID-19 on clerical and administrative employees. We outline the key changes to each below.

Hospitality Industry Award - key changes

The following changes take effect immediately and operate until 30 June 2020:

  • Allow employers to require employees to perform other duties, including to perform work across classifications, provided it is safe to do so and the employee has the necessary license and qualifications (eg Responsible Serving of Alcohol certificate)
  • Allow employers to reduce ordinary hours of work:
    • employers may reduce a full-time employee's ordinary hours to no lower than 22.8 hours a week, paid on a pro-rata basis;
    • a part-time employee can be directed to work fewer hours, no less than 60% of their guaranteed hours per week;
    • before issuing any direction to reduce hours, employers must consult with the employee and provide as much notice as practicable;
    • the United Workers Union must be notified prior to implementing any changes where the employee is a member of the union; and
    • leave entitlements continue to accrue based on the employee's existing (pre-variation) ordinary hours of work, even if their hours are reduced.
  • Allow employers to direct employees to take annual leave:
    • employers can direct employees to take annual leave, with 24 hours’ notice; and
    • an employer and employee may agree to extended leave by the employee taking twice as much annual leave on half pay.

Clerks – Private Sector Award - key changes

The following changes take effect immediately and operate until 30 June 2020:

  • an employer can agree (in writing, including by email) with an individual employee to reduce the employee's hours (including by more than 25%) or to move the employee temporarily from full time to part time hours of work, and reduce their pay proportionately;
  • by mutual agreement, the span of hours for employees working from home can be changed to 6:00am – 11:00pm Monday to Friday, and 7:00am – 12:30pm on Saturdays;
  • the minimum engagement for casual and part-time employees working from home has been reduced to two hours;
  • an employer can direct an employee to take annual leave with one week's notice, as long as the employee is left with two week's annual leave after finishing the period of leave they were directed to take;
  • by mutual agreement, annual leave can be taken for up to double the length of time at half the rate;
  • if a close-down occurs, only one week's notice is required to direct employees to take annual leave; and
  • the performance of work outside an employee's classification level is permitted.
If a worker at your workplace tests positive, can your workplace be shut down?


  • the Health Minister (Cth) can direct that the workplace (or any part of it) be closed to prevent or control the spread of COVID-19;
  • the Health Minister (NSW) can similarly take any action or give any directions necessary to deal with risk to public health – this would extend to a direction that any premise be closed; and
  • SafeWork NSW can issue a prohibition notice to require work to stop, if it were to deem the site unsafe (eg if it were to consider that the site was not properly cleaned and disinfected after a worker tested positive). 


Your key questions answered on eligibility for JobKeeper

Contacts: Joseph PowerCraig MilnerTom Tian
Last updated: 11 May 2020

What are the key dates I need to be aware of?



20 April 2020

Enrolments for the JobKeeper payment open via the ATO's Business Portal.

4 May 2020

Enrolled businesses should begin registering eligible employees with the ATO.

8 May 2020

Last day for employers to satisfy the 'wage condition' for the two April fortnights. The wage condition requires employers to pay eligible employees $1,500 (before tax) per fortnight to receive the JobKeeper payment.

10 May 2020

Last day for employers to satisfy the 'wage condition' for the first May fortnight.

24 May 2020

Last day for employers to satisfy the 'wage condition' for the second May fortnight.

31 May 2020

Last day to register for JobKeeper and identify eligible employees to receive the JobKeeper payment for April and May.


After applying, businesses must make a monthly declaration that (1) confirms their employees are still eligible to receive the payment and (2) details the business's current and projected GST turnover.


The ATO will pay employers their JobKeeper payment in arrears. The payment should be made by the ATO within the first week of the end of each month.

What are the eligibility requirements for employers?

There are three basic eligibility requirements that an entity must satisfy to qualify for the JobKeeper scheme:

  1. The employer must not be an excluded entity. The major banks, Australian government agencies, local governing bodies, sovereign entities (and wholly owned subsidiaries of sovereign entities) and companies with a liquidator or provisional liquidator appointed are excluded entities and cannot receive JobKeeper payments.
  2. On 1 March 2020, the employer must have carried on its business in Australia or, if a not-for-profit, pursued its objectives principally in Australia. Deductible gift recipients that are a declared developing country relief fund or developing country disaster relief fund on 1 March 2020 are also eligible. In all three cases, these requirements must be satisfied on 1 March 2020. Businesses and charities that were not operating on 1 March 2020 will not be eligible for the scheme.
  3. The employer must satisfy the 'decline in turnover' test at the relevant test time. The decline in turnover test requires calculating GST turnover for a relevant month or quarter since 1 March 2020 and comparing it against an earlier month or quarter. There are many modifications to the way GST turnover is calculated (see below question on calculating GST turnover). There is a [basic test and there are also alternative tests] (see below question on relevant comparison periods) which are available in some defined circumstances where the basic test is inappropriate.
What is the 'decline in turnover' test?

The 'decline in turnover' test is the Government's chosen mechanism to determine whether a business has been impacted by COVID-19, although it does not expressly require a business to show COVID-19 was the cause of any downturn.

In broad terms, a business will satisfy the 'decline in turnover' test if the business' GST turnover has dropped by a specified percentage from a relevant comparison period. The relevant comparison period against which decline in turnover is tested is generally the corresponding period in 2019 (this is the basic test). If the basic test cannot be satisfied, then in some circumstances, an alternative test might be available which allows for an alternative comparison period to be tested.

The decline in turnover test operates as follows.

  • Determine which decline threshold applies to the business – 15%, 30% or 50%. ACNC registered charities which are not universities or schools will only need to demonstrate a 15% decline in turnover. Other entities will be subject to the 30% or 50% threshold depending on their aggregated turnover (see next question), which is calculated on a group basis.
  • Calculate the decline in GST turnover. This involves identifying the relevant comparison period and then calculating the difference between the projected GST turnover and the current GST turnover (see below question on calculating GST turnover) on the basis of that comparison period. Under the basic test, the business can choose either a month to month comparison (eg April 2019 to April 2020) or a quarterly comparison (eg. Q2 2019 and Q2 2020). If the basic test is not met then, in some circumstances, an alternative comparison period might be available under an alternative test (see below question on relevant comparison periods).
  • Determine if the decline in GST turnover meets the threshold. 
How do I calculate my aggregated turnover?

'Aggregated turnover' is defined pursuant to the small business entity rules in section 328-115 of the Income Tax Assessment Act 1997 (Cth).

Aggregated turnover includes the turnover of the employer as well as its connected entities and affiliates (including foreign turnover). In simple terms, an individual or company will be an 'affiliate' if it acts, or could reasonably be expected to act, in accordance with the directions or wishes of another business. An entity will be a connected entity if it owns, or has the right to acquire, at least 40% of any income distribution, capital distribution or voting rights.

This concept does not rely on the income tax consolidated group or GST group concepts. The turnover of related foreign entities can be included in aggregated turnover.

How do I calculate GST Turnover?

Technically, an entity's GST turnover for a particular period includes the value of supplies made (or likely to be made) during that period. GST turnover is ordinarily used merely to assess an entity's requirement to register for GST and its relevant GST periods, and as such, can be difficult to apply to a specific month or quarter due to silence in the law as to the timing of when a supply is made. Strictly speaking, the attribution rules under GST law and accruals or cash accounting methods are not relevant to determining the time a supply occurs.

Fortunately, the ATO has acknowledged this issue and we welcome the practical guidance issued on 4 May 2020 in LCR 2020/1. The ATO has said it will accept various alternative methods for calculating GST turnover (rather than assessing the potentially vexed question of when a supply occurs), including using accrual accounting, GST attribution rules or even income tax accounting (if not registered for GST).

There are some important principles and modifications to keep in mind when calculating GST turnover.

  • GST-free supplies should be included in the calculation of turnover, but input taxed and personal supplies should be excluded.
  • GST turnover is generally calculated on an entity-by-entity basis. Supplies made to related entities need to be included (even when part of the same GST group). If one entity runs multiple businesses, the turnover from these should be combined. There is an exception to this rule for certain service entities (see next question).
  • Charities and deductible gift recipients should include certain gifts and donations even though these might not be consideration for a supply.
  • Charities (other than universities and schools) that receive certain government grants can elect to disregard those grants. 
What if all my employees are in a service entity?

When the JobKeeper rules were introduced on 9 April 2020, it was unclear how they would apply to corporate groups with a discrete employment service entity.

Treasury has acknowledged that the decline in turnover test, as calculated on a standalone entity basis, is not an appropriate test for group service entities. As such, on 1 May 2020, modifications to the decline in turnover test were introduced to essentially allow for service entities to calculate a decline in GST turnover on a group basis.

These modifications can be applied retrospectively to assist in determining eligibility for the first two April JobKeeper fortnights. An employer entity that can already satisfy the decline in turnover test on a standalone basis does not need to assess the impact of these modifications.

An employer entity is eligible to apply these modifications to the calculation of GST turnover if:

  • the employer entity is a member of a consolidated group, consolidatable group or a GST group; and
  • the employer entity’s principal activity is supplying other members of the group with employee labour services (it must not supply services outside the group, except incidentally).

The Commissioner also has an apparently wide discretion to issue a determination preventing an entity from applying these modifications in assessing its decline in turnover. This discretion merely requires the Commissioner to be satisfied, having regard to the purpose of the JobKeeper scheme and any other matter the Commissioner considers to be relevant, that these modifications are 'unsuitable' or 'risk the integrity' of the Commissioner's administration of the scheme.

If eligible, the employer entity will essentially use the GST turnover of the relevant group members to which the employer entity has provided the employee labour services for the purposes of assessing its decline in turnover. These modifications can also be applied if assessing a decline in turnover based on an alternative test.

What relevant comparison period should I use?

An entity can choose any period that is a month or quarter occurring between March 2020 and September 2020 as the period in which the decline in turnover is tested. The period chosen does not need to be consistent with related entities, or with the entity's ordinary GST periods, but the entity will only be eligible for JobKeeper from a time during that chosen test period. Universities must use a six month period commencing on 1 January 2020 as their test period.

Under the basic test, the relevant comparison period (or standard) against which decline in turnover is assessed is simply the prior corresponding period in 2019. For example, if an entity is seeking to demonstrate a decline in turnover for Q2 2020, the prior comparison period is simply Q2 2019.

If an entity satisfies the basic test, it does not need to consider the application of any alternative tests.

If an entity does not satisfy the basic test, the entity can consider whether there are any applicable alternative tests. Alternative tests are published by the Commissioner of Taxation by legislative instrument.

On 23 April 2020, the Commissioner of Taxation issued a legislative instrument with alternative tests for the following classes of entities:

  • New businesses established after the relevant comparison period in 2019;
  • Entities that made a significant acquisition or disposal between the relevant comparison periods;
  • Entities that underwent a business restructure between the relevant comparison periods;
  • Entities that experienced rapid growth between the relevant comparison periods of 50% in twelve months, 25% in six months or 12.5% in three months;
  • Entities that have been affected by drought or natural disaster between the relevant comparison periods;
  • Entities with irregular (but not cyclical) turnover; and
  • Sole traders or small partnerships that experienced sickness or injury between the relevant comparison periods.

The alternative tests are intended to provide a more appropriate comparison period for assessing decline in turnover than the basic test. For example, if assessing whether an entity satisfies the decline in turnover for the April 2020 month, but the entity did not exist in April 2019, the entity can instead compare its April 2020 turnover against the average monthly GST turnover for January to March 2020.

Can I appeal to the Commissioner for an alternative test?

There is limited opportunity for businesses to appeal to the Commissioner for an alternative test.

The Commissioner has interpreted his power to issue alternative tests as being strictly limited according to the following principles.

  • Alternative tests can only be determined for a class of entities, not individual entities.
  • Alternative tests must be created by legislative instrument.
  • The Commissioner must be satisfied that the relevant comparison period under the basic test is inappropriate for the class of entities.

The Commissioner considers that a period will be inappropriate where there is an event or circumstance, whether internal or external to an entity, that is outside the usual business setting for entities of that class which results in the relevant comparison period in 2019 not being appropriate for the purpose of an entity in the class of entities satisfying the decline in turnover test.

As at the date of this publication, the alternative tests determined by the Commissioner have merely allowed for modifications to the prior comparison period (ie the standard) against which a decline in turnover must be assessed.

We expect that, if a business has broader structural concerns regarding the application of the JobKeeper scheme (outside the interpretation of tax concepts such as GST turnover), such concerns could only be addressed by changes to the JobKeeper rules by Treasury.

Who are my eligible employees?

An employee will generally be an eligible employee for a particular fortnight if he or she was:

  • On 1 March 2020:
    • aged 18 years or over (or are otherwise aged 16 or 17 years and essentially independent);
    • a full-time, part-time or long-term casual employee (being a casual employed on a regular and systematic basis during the period of 12 months); and
    • an Australian resident (as defined in the Social Security Act 1991) or the holder of a Subclass 444 (Special Category) visa (being essentially New Zealand temporary visa holders); and
  • employed by the entity at any time during the fortnight; and
  • has given the employer a nomination notice and has not given any other employer a nomination notice (this is to prevent double dipping).

Unlike employer eligibility, which is assessed once at a point in time, employee eligibility is assessed on a fortnightly basis.

Some employees are excluded from the scheme. An individual will not be an eligible employee for a particular fortnight if he or she:

  • is entitled to parental leave pay and the PPL period overlaps with the fortnight;
  • received dad and partner pay during the fortnight; or
  • was totally incapacitated throughout the fortnight and is entitled to worker's compensation in respect of a period that overlaps with the fortnight.

Under recent changes to the JobKeeper scheme, religious practitioners and registered religious institutions may also be eligible to receive JobKeeper payments.

Can I pick and choose which employees to nominate for JobKeeper?

The JobKeeper scheme is intended to operate on a 'one in, all in' principle, although the actual legal obligations underpinning this principle were not clear in the original rules.

The 1 May 2020 changes to the JobKeeper rules are intended to fix this issue, by requiring employers essentially to give notice to all their relevant employees of their intention to register for JobKeeper, and thereby giving them an opportunity to nominate for JobKeeper.

What is the tax position of the JobKeeper payments?

JobKeeper payments will be assessable income for the business, but payments to employees (even if made solely for the purpose of obtaining JobKeeper) should be deductible.

The tax character of any payment by an employer to its employees will generally be assessable income. Note that amounts withheld by the employer for PAYG purposes are counted towards the $1,500 minimum payment that employers must pay eligible employees each fortnight before receiving the JobKeeper payment.

We discuss the availability of various payroll tax concessions here.

Do I need to pay superannuation on JobKeeper payments?

A common misconception is that JobKeeper payments are made to employees. Rather, they are made to the employer, which is required (prior to even receiving the payment) to have paid each employee a minimum of $1,500 pre-tax to be eligible for the JobKeeper payment. It is inaccurate to describe this payment to the employees as a JobKeeper payment, particularly where it merely forms part of the employee's ordinary salary.

The Government has announced that changes will be made to the superannuation guarantee rules so that employers do not need to make superannuation contributions in respect of any amounts paid to an employee solely to satisfy the JobKeeper minimum fortnightly payment (ie that amount cannot be characterised as payment for work or services).

Here are three examples that we expect would illustrate how this is intended to work (subject to the rules when they are released):

  • Superannuation contributions do not need to be paid for employees that have been stood down but are still being paid $1,500 a fortnight by the employer to satisfy the JobKeeper minimum payment condition.
  • If an employee is still working and they are entitled to be paid $1,000 for their work over a fortnight, then the employer is expected to make superannuation contributions in relation to that $1,000. The employer is not required to make superannuation contributions for the additional $500 they would need to pay their employees to satisfy the JobKeeper minimum payment condition.
  • If an employee is still working and the employee's wage for the work they performed in that fortnight is $2,000, then the employer is expected to make superannuation contributions in relation to that $2,000 (in the usual way). 
How will the ATO exercise its compliance resources?

The ATO has released a Practical Compliance Guideline that outlines how it will apply its compliance resources to schemes designed to obtain access to JobKeeper payments or increase the amount of JobKeeper payments received. Some examples identified in PCG 2020/04 that would likely attract the Commissioner's compliance resources include:

  • deferring or bringing forward the making of supplies to decrease projected GST turnover;
  • transferring assets within a group to reduce turnover; and
  • manipulating the timing of a management fee or similar within a group to reduce turnover.

The PCG also gives examples of circumstances that would likely not attract the Commissioner's compliance resources, such as genuinely renegotiating service arrangements within a company in response to the impact of COVID-19 on the group's business.

While each case is different, the PCG indicates that the Commissioner will be most concerned in instances where the entity was not significantly affected by external environmental factors beyond its control, or the entity has sought to increase its entitlement in excess of that required to maintain pre-existing employment relationships.

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