Can I be targeted because I am not eligible for JobKeeper?

The temporary closure of all non-essential businesses has caused major setbacks for many companies around Australia. This has led to many employees being made redundant, terminated or stood down.

JobKeeper payments are eligible for businesses and not-for-profit organisations which have been affected by COVID-19. The purpose of this payment is to provide a wage subsidy to assist employers in retaining their employees.

Employees who are on stand down are not entitled to payment from their employers during this period.[1] However, the JobKeeper payment acts as a wage subsidy and provides eligible employees with $1500 every fortnight regardless of their ordinary remuneration.

Whilst this payment has assisted many employees and small business during this period, it does not extend to non-Australian citizens or permanent residents. For businesses with employees who are not eligible for the scheme, the Australian Government provides alternative grants as support.[2]

Irrespective of the ongoing circumstances, the Fair Work Act 2009 (Cth) (the Act) still applies to all employment relationships.

Section 351(1) of the Act provides protection against adverse action from an employer based on an employee’s race, national extraction or social origin.

Section 342 of the Act provides a list of acts which are considered adverse action. This includes threatening or actually; dismissing an employee, injuring an employee in their employment, discriminating between one employee and other employees and altering an employee’s position to their detriment.

If an employer has stood down an employee down based on the fact that they are not eligible for the JobKeeper scheme, the employer has acted adversely against the employee.

While the Act does not explicitly note alternative citizenship as a protected attribute, it provides wide definitions to the meaning of race and national extraction which may provide an umbrella protection. The General Protections benchbook extends the meaning of ‘national extraction’ and intends that both the nation and the nationality from which the employee identifies with is protected. Additionally, the case of Paramasivam v Tay,[3] extended the definition of ‘race’ to include colour, descent or national or ethnic background.

If you believe that your employer has acted adversely against you because you are not eligible for JobKeeper, please contact us on 03 9650 4555.

[1] The Fair Work Act 2009 (Cth) s 524.

[2] See more here, https://treasury.gov.au/coronavirus

[3] [2001] FCA 758