Leave & the JobKeeper scheme

Published 1 May 2020 | Updated 16 October 2020

The information on this page is for qualifying employers and their employees.

Qualifying employers are employers that qualify for the JobKeeper scheme and receive payments for their eligible employees.

Legacy employers no longer receive JobKeeper payments but may be able to use some of the JobKeeper provisions. Learn what applies for leave at Pay, leave and ending employment for legacy employers.

Find information about leave entitlements and options for qualifying employers and their eligible employees under the JobKeeper scheme.

You can also learn more about the repealed JobKeeper provisions to take annual leave including at half pay. These provisions stop applying from 28 September 2020.

Paid and unpaid leave options

The information in this section is for qualifying employers and their eligible employees.

Legacy employers and their employees can check what applies at Pay, leave and ending employment for legacy employers.

Taking paid leave instead of minimum JobKeeper payment

When an employer is receiving JobKeeper payments for an employee, they need to pay the employee at least the amount of the applicable JobKeeper payment for the fortnight. If the employee isn’t working, or is working less hours under a JobKeeper enabling stand down direction, this may be less than the employee would have been paid if they’d worked their usual hours during that fortnight.

An employee can agree with their employer to take paid leave instead of reducing their hours under a JobKeeper enabling stand down. While an employee is on paid leave, they’re not on a JobKeeper enabling stand down and have to be paid:

  • an amount equal to the applicable JobKeeper payment, or
  • their usual pay if it’s more than the applicable JobKeeper amount.

Please note that on 24 September 2020, the Federal Court of Australia handed down a decision relating to how to determine pay for work performed during a fortnight under the JobKeeper scheme. That decision is being appealed. We are considering the implications of this decision and may update our information accordingly.

From 28 September 2020, there are two JobKeeper payment rates – a tier 1 (higher) rate and a tier 2 (lower) rate. For information about the different applicable JobKeeper payments, visit Payment rates external-icon.png on the ATO website.

Example: JobKeeper during leave periods – stand down direction doesn’t apply

Nilushan is a full-time chef at a catering business. Nilushan’s employer gets JobKeeper payments for him as the employer is qualifies for the scheme. Nilushan is paid $30 per hour and $2280 per fortnight.

Because there's less catering work right now, Nilushan’s employer tells him not to come to work for 6 weeks. He gives him a JobKeeper enabling stand down direction. While he is stood down, Nilushan is paid the applicable JobKeeper payment per fortnight.

Before his employer gave him the stand down direction, Nilushan had been approved to take 2 weeks of annual leave in the middle of the 6-week stand down period.

The stand down direction doesn’t apply during the 2 weeks when Nilushan is taking annual leave. This means his employer needs to pay Nilushan his usual fortnightly pay of $2280 while he’s on annual leave.

Payment for leave

While an employee of a qualifying employer is on paid leave (such as annual leave or long service leave), they need to be paid:

  • an amount equal to the applicable JobKeeper payment, or
  • their usual pay for work performed (including leave payments), if it’s more than the applicable JobKeeper amount.

From 28 September 2020, there are two JobKeeper payment rates – a tier 1 (higher) rate and a tier 2 (lower) rate. For more information visit Payment rates external-icon.png on the ATO website.

Accruing leave

Employees who have been stood down with a JobKeeper enabling stand down direction still accrue their usual leave entitlements for the period the direction applies (as if the direction hadn't been given to them).

Example: Accruing leave during JobKeeper stand down

Elisha is a full-time designer in Nathan’s engineering business. Nathan is a qualifying employer and his business is entitled to JobKeeper payments for Elisha.

There’s been a significant reduction in demand for design work due to coronavirus. Nathan gives Elisha a JobKeeper enabling stand down direction not to attend work for the next few weeks.

During this period, Elisha’s annual leave entitlements continue to accumulate based on her full-time hours, as if the JobKeeper enabling stand down direction hadn’t been given.

Annual leave

From 28 September 2020, all employers and their eligible employees need to follow the usual rules for taking and requesting annual leave. This includes those set by an award or agreement. For information about what applied before 28 September, see Agreements to take annual leave before 28 September 2020.

Learn more about the usual rules for taking annual leave on our Annual leave page.

Sick and carer’s leave and compassionate leave

On 18 May 2020 the Federal Court of Australia handed down a decision confirming that an employee who has been stood down under the Fair Work Act can’t take paid sick and carer’s leave or compassionate leave. This page has been updated to reflect this decision.

An appeal of this decision will be heard by the Full Federal Court of Australia. In the meantime, the decision and information on this page reflects the current state of the law and applies to affected employers and employees.

The JobKeeper scheme doesn’t affect an employee’s entitlement to accrue paid sick or carer’s leave under the National Employment Standards and the relevant award. Employees continue to accrue paid sick and carer’s leave as usual.

However, an employee who has been given a JobKeeper enabling stand down direction to work less or no hours isn’t entitled to use paid sick and carer’s leave or compassionate leave for the days or hours that they’ve been directed not to work.

Example: Taking sick leave during rostered work hours while on JobKeeper

Johnny works in a factory. His employer qualifies for the JobKeeper scheme and gets JobKeeper payments for Johnny. Johnny is still working his normal hours.

Johnny’s rostered to work on Saturday for 4 hours but gets sick and can’t work. He tells his manager and gets a medical certificate from his doctor.

Johnny is paid sick leave for the 4 hours he doesn’t work. His employer deducts 4 hours of sick leave from his sick leave balance.

To find out more, go to Sick and carer’s leave.

Long service leave

The JobKeeper scheme doesn’t impact or change an employee’s long service leave entitlements.

Our Long service leave page has more information about long service leave entitlements.

Unpaid leave

An eligible employee on authorised unpaid leave needs to be paid at least the amount of the applicable JobKeeper payment (per fortnight and less tax) for the period they’re on unpaid leave. This applies as long as the employee meets the eligibility conditions for the JobKeeper scheme and their employer is a qualifying employer and receives JobKeeper payments for the employee.

Examples of authorised unpaid leave include:

  • unpaid sick or carer’s leave
  • unpaid pandemic leave
  • unpaid parental leave (unless the employee is receiving the Australian Government’s Parental Leave Pay or Dad and Partner Pay)
  • unpaid family and domestic violence leave.

To find out more about different types of unpaid leave, visit our Unpaid leave page.

Parental leave

A qualifying employer may be eligible to receive JobKeeper payments for an employee on unpaid parental leave, provided they and the employee meet other criteria. However, an employee receiving the Australian Government’s Parental Leave Pay or Dad and Partner Pay isn’t eligible for the JobKeeper scheme for any JobKeeper fortnight in which they get these payments.

Find out more about eligibility for Parental Leave Pay and Dad and Partner pay on the Services Australia website:

To learn more about workplace entitlements for this type of leave, visit our Maternity and parental leave section.

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Agreements to take annual leave before 28 September 2020

Under the original JobKeeper provisions, qualifying employers could make agreements with eligible employees to take annual leave. This included taking annual leave at half pay.

These provisions have been repealed and stop applying from 28 September 2020. From this date, any agreement that was made under these provisions stops applying.

From 28 September 2020, all qualifying employers and their employees need to follow the usual rules for taking and requesting annual leave. This includes the rules set by an award or agreement.

Learn more about the usual rules for taking annual leave on our Annual leave page.

The repealed JobKeeper provisions previously allowed a qualifying employer to:

  • request that an employee take paid annual leave (as long as they keep a balance of at least 2 weeks)
  • agree in writing with an employee for them to take annual leave at half pay for twice the length of time.

Agreements

To have previously made an agreement about taking annual leave under these JobKeeper provisions, an employer needed to:

  • qualify for and enrol in the JobKeeper scheme
  • be entitled to JobKeeper payments for the employee to whom the agreement applies
  • be a national system employer in the Fair Work system.

Agreements under the JobKeeper provisions were only allowed for annual leave and not other types of leave.

Agreements made under JobKeeper provisions stopped applying from 28 September 2020. After this date, an employee’s pay and conditions went back to what they were before the agreements were made.

Requests for an employee to take annual leave

Agreements under the JobKeeper provisions were only allowed for annual leave and not other types of leave.

Agreements made under JobKeeper provisions stopped applying from 28 September 2020. After this date, an employee’s pay and conditions went back to what they were before the agreements were made.

Requests for an employee to take annual leave

If a qualifying employer asked an employee to take annual leave under the JobKeeper provisions, the employee had to consider the request. The employee couldn’t unreasonably refuse it.

Employees that took annual leave under the JobKeeper provisions continued to accrue their usual leave entitlements. The period of annual leave counted as service.

Taking annual leave at half pay

While an employee was on annual leave at half pay they continued to accrue leave (such as annual and sick and carer’s leave), as if they were taking annual leave at full pay.

If an employee took leave, their employer had to pay them at least the amount of the JobKeeper payment for each week of annual leave at half pay. They weren’t allowed to be paid half the JobKeeper amount.

If an employee’s employment ended after they had taken annual leave at half pay, redundancy pay and payment in lieu of notice of termination were calculated as if they took the annual leave at full pay.

A qualifying employer can’t unreasonably refuse an employee’s request to take annual leave.

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More information

Read more in our Library about:

Legacy employers

Legacy employers and their employees can check leave entitlements at Pay, leave and ending employment for Legacy employers.

More information:

Pay and wages

Information, tools and resources:

Leave

Information, tools and resources:

Enforcement and dealing with disputes

We help employers and employees understand and follow Australian workplace laws. We do this by:

  • providing information and education
  • providing tools, templates and guides
  • helping you resolve workplace issues.

Our Resolving workplace issues during coronavirus page has information and resources to help you resolve workplace disputes. It also has information about our enforcement role under the JobKeeper scheme and who can help with:

  • questions about eligibility for the JobKeeper scheme
  • disputes about directions or requests under the JobKeeper scheme
  • disputes related to requirements for legacy employers, including certificates.

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