JobKeeper 1.0 Rule Changes after 3 August 2020

As you will be aware, the Government made an announcement two weeks ago (on 7 August 2020) to relax and expand the eligibility criteria for the JobKeeper Payment scheme after 28 September 2020 (now known as, JobKeeper 2.0 ).   We explained the details in our previous Tax Alert.

The announcements also raised some potential important implications for the current JobKeeper scheme (let's call this, JobKeeper 1.0 ) effective from 3 August 2020, however we needed detailed guidance from the ATO to clarify the issues raised.

Last Friday (14 August 2020), the ATO has now released some further guidance which may have important implications for some businesses which are currently enrolled in JobKeeper 1.0.

This is very important if your business has employed " new employees " - after 1 March 2020 and before 1 July 2020 - as you may be eligible to enrol those "new employees" starting from JobKeeper Fortnight #10 (3rd August – 16th August).   We will explain the extension of the "wage payment" date for JobKeeper Fortnight #10 in more detail below.

Eligible Employee test requirements have now changed (a little)

These new announcements have changed the Eligible Employee test, so an eligible employee is now required to satisfy the following two tests at different times:

• Either the 1 July 2020 test or the 1 March 2020 test (depending on the specific JobKeeper Fortnight for which your employer is claiming), and
• The JobKeeper fortnight test.

For JobKeeper Fortnights ended on or before 2 August 2020 (ie. JobKeeper Fortnights #1 to #9); the employee must satisfy the 1 March test (and all other eligibility criteria) to be an eligible employee.

For JobKeeper Fortnights starting on or after 3 August 2020 (ie. JobKeeper Fortnight #10 onwards); the employee for a JobKeeper Fortnight ended on or before 2 August 2020 must use the 1 March test , or the employee must satisfy the 1 July test (and other eligibility criteria).

The 1 July 2020 Test

This test requires that the employee meets all of the following criteria on 1 July 2020:

• The employee was employed as either a:
  • non-casual employee (ie. full-time, part-time, or fixed-term);
  • long-term casual employee (ie. employed on a regular and systematic basis during the 12 month period that ended 1 July 2020 ) and not a permanent employee of any other employer;
• The employee was 18 years or older at 1 July 2020 (however, if the employee was 16 or 17 years old, they can also qualify if they were independent or not studying full time on 1 July 2020);
• The employee is an Australian resident under the Social Security Act 1991 , which requires the employee resides in Australia, and they are one of: an Australian citizen, the holder of a permanent visa, or a Protected Special Category Visa Holder.

The 1 March 2020 Test

This test requires that the employee meets all of the following criteria on 1 March 2020 :

• The employee was aged 18 years or older at 1 March 2020 (however, if the employee was 16 or 17 years old, they can also qualify for JobKeeper Fortnights before 11 May 2020, and continue to qualify after that date if they are independent or not undertaking full time study).
• The employee was an employee (other than a casual employee) of the employer, or they were a long term casual employee.
• The employee was an Australian resident within the meaning of the Social Security Act 1991 or they were both a tax resident of Australia for the purposes of the Income Tax Assessment Act 1936 and the holder of a Subclass 444 (Special Category) visa.

We must note that if the employee does not satisfy these requirements on 1 March 2020 , they are not considered an eligible employee of an employer entitled to receive the JobKeeper payment for JobKeeper Fortnights ending on or before 2 August 2020.

JobKeeper Fortnight Test

This test requires that the employee must satisfy each of these requirements for the relevant JobKeeper Fortnight:

• The employee is an employee of a qualifying employer (including if they have been stood down or they have been re-hired) at any time during the JobKeeper Fortnight. 

We note that this will usually be the same employer that the employee had as at 1 March or 1 July 2020 (as applicable), however there are exceptions where: the employee has been moved between different employers of the same wholly owned business structure, or there has been a change in ownership of a business, or there has been a structural change in a not-for-profit entity.

• The employee must meet the nomination requirement by providing a JobKeeper Employee Nomination Notice (discussed further below).
• The employee did not receive any of the following types of payments:
  • Parental leave pay by the Government under the Paid Parental Leave Act 2010 for a period that overlaps with or includes the JobKeeper Fortnight;
  • Dad and partner pay under the Paid Parental Leave Act 2010 at any time during the fortnight; and
  • Certain workers' compensation payments in respect of your total incapacity for work for a period that overlaps with, or includes, the JobKeeper Fortnight.

Special consideration:  Nomination of "new employees"

It is a requirement that an Employer must notify their intent to nominate an employee as an Eligible Employee so they can claim the JobKeeper payment.   This is commonly referred to as the "one in, all in" rule, where it is a requirement to 'invite' all employees to participate in the JobKeeper scheme.

An employer should provide any "new employees", which started with the business after 1 March 20202 and before 1 July 2020, with a JobKeeper Employee Nomination Notice (we note that the 

ATO's Notice has not been updated to include the 1 July 2020 testing date, but the current version can be  found here.

When a "new employee" receives the JobKeeper Employee Nomination Notice, they should consider their circumstances and decide whether they should accept the invitation to join the JobKeeper scheme and return the completed Notice to the employer.

We note that a "new employee" should not give their employer a completed JobKeeper Employee Nomination Notice if:

• The employee has already completed the Notice for another employer (or agreed to be a business participant) for another entity receiving a JobKeeper payment, unless :
  • The employee stopped being an employee of their previous employer (or actively engaged in the business) of the entity between 1 March and 1 July 2020,
  • At the time the employee agrees to be nominated by their current employer, the employee had not been rehired by their previous employer (or restarted being actively engaged as an eligible business participant), and
  • The employee meets the other requirements to be an Eligible Employee for JobKeeper Fortnights starting on or after 3 August 2020 (including the 1 July test).

   

• The employee is receiving Government parental leave pay, Dad and partner pay, or a payment in accordance with Australian worker compensation law for an individual's total incapacity for work.

Special consideration:  Extended "wage payment" date for JobKeeper Fortnights #10 and #11

As the new guidance was only released by the ATO last Friday (14 August 2020), and the "wage payment" date for JobKeeper Fortnight #10 was 16 August 2020 - the ATO have given employers until 31 August 2020 to meet the "wage payment" condition for JobKeeper Fortnight #10 (3rd August – 16th August) and JobKeeper Fortnight #11 (17th August – 30th August).

This will ensure that if any "new employees" are enrolled into the JobKeeper scheme today, you can treat their enrolment start date as being 3rd August 2020.   Therefore, the business should ensure that a minimum JobKeeper payment of at least $3,000 (gross) is paid to the "new employee" before 31 August 2020 .

This will cover the "wage payment" condition for both JobKeeper Fortnights #10 and #11 for the "new employee", and therefore the business can claim the corresponding JobKeeper wage subsidy for those fortnights.

Please do not hesitate to contact your Lowe Lippmann Relationship Partner if you wish to discuss any of these matters further.