We recently published a blog advising of the passage of the JobKeeper Payment legislation on the 8th of March.
In that blog, we explained the “framework” for the JobKeeper Payment which consists of the Treasurer making the Rules for the scheme and the ATO being delegated the job of administering the payments under the scheme.
On the 9th of March the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 were made and were accompanied by an Explanatory Statement issued by the Treasurer.
These Rules set-out the eligibility criteria for the JobKeeper Payment scheme along with the details of how the scheme is to operate.
The Jobkeeper scheme is clearly a hot topic with much having been written and said about it by the government and the media. This update seeks to sort the fact from the fiction in order to assist businesses and employers to better understand the scheme.
Broadly, an employer is entitled to a JobKeeper payment of $1,500 for an individual for a fortnight, where:
- The fortnight is a “jobkeeper fortnight”; and
- The employer qualifies for the jobkeeper scheme at or before the end of the fortnight; and
- The individual is an “eligible employee” of the employer for the fortnight; and
- The employer has satisfied the “wage condition” in respect of the individual for the fortnight; and
- The employer has notified the ATO in the approved form that they elect to participate in the scheme; and
- The employer has given information to the ATO about the entitlement for a fortnight, including details of the individual, in the approved form.
The following is an explanation of each of the key concepts as they appear in the eligibility criteria.
1. Jobkeeper fortnight
A jobkeeper fortnight is defined as the fortnight beginning on the 30th of March 2020 and each subsequent fortnight up to the fortnight ending on the 27th of September 2020.
2. Qualification for the jobkeeper scheme
An entity qualifies for the jobkeeper scheme if:
- On the 1st of March 2020, the entity carried on a business in Australia or was a non-profit body that pursued its objectives principally in Australia; and
- The entity has satisfied the “decline in turnover test” (comprising the “basic test” & “alternative test”).
The “basic test” is defined in the Rules as being satisfied where the entity’s projected GST turnover falls short of the entity’s current GST turnover for a relevant comparison period by at least the specified percentage.
That specified percentage being:
- 15% for an ACNC registered charity (excl. schools);
- 50% for an entity with aggregated turnover in excess of $1b; and
- 30% for all other entities.
The turnover test period is either:
- A calendar month that ends after the 30th of March 2020 and before the 1st of October 2020; or
- A quarter that starts on the 1st of April 2020 or the 1st of July 2020.
The relevant comparison period is the period in 2019 that corresponds to the turnover test period.
The entity has discretion to choose to use a calendar month or a quarter when applying the test.
The Rules also make provision for the ATO to, by legislative instrument, determine that an “alternative test” applies to a class of entities, if the ATO is satisfied that there is not an appropriate relevant comparison period for the purposes of the “basic test”.
This “alternative test” is envisaged to apply to entities such as start-ups as well as those experiencing unusual circumstances. At the time of writing, the ATO is yet to make any legislative instrument concerning an “alternative test”.
As such, those entities that do not pass the “basic test” are currently unable to determine if they can qualify for the jobkeeper scheme.
3. Eligible employee
An individual is an eligible employee of an entity for a fortnight if they were employed by the entity at any time in the fortnight; and
- They were aged 16 years or over on 1 March 2020; and
- They were a full-time, part-time or long-term casual employee; and
- They were either an Australian resident within the meaning of the Social Security Act 1991 or a tax resident of Australia and the holder of a Subclass 444 visa.
The definition of a long-term casual employee is based on the Fair Work Act definition and includes a person who is employed on a regular and systematic basis during a period of 12 months.
A person is excluded from being an eligible employee of an entity for a fortnight where:
- They are in receipt of Paid Parental Leave (PPL) or dad and partner pay; or
- They are totally incapacitated for work throughout the fortnight and in receipt of workers compensation.
Employees will also have nomination requirements that must be met. This requirement is that the individual has given the employer a notice in the approved form stating that:
- They meet the requirements noted above; and
- They agree to be nominated by the employer as an eligible employee for the jobkeeper scheme; and
- They are not excluded from being an eligible employee; and
- Where they are a long-term casual employee, they are not also an employee (other than a casual employee) of another entity; and
- They have not given any other entity (or the ATO) a nomination notice.
An important feature of the scheme is that an employee must nominate only one employer. Where employees have a choice of employers to nominate, care should be taken as there is no provision to change that nominated employer.
At present, the approved form for employees to provide their nominations is yet to be made available.
It should be noted that there are arrangements in place to ensure that employees are not made ineligible due to an internal business restructure that results in a change of employer. Similarly, where a business has changed hands.
In addition to employees, an “eligible business participant” may also be entitled to jobkeeper payments.
An eligible business participant is a person that is not an employee that is actively engaged in the business, being either a sole-trader, partner in partnership, beneficiary of a trust or a director/shareholder of a company.
An entity will be entitled to nominate one individual as an eligible business participant to receive the jobkeeper payment, subject to meeting the integrity measures set-out in the rules.
4. Wage condition
The wage condition is satisfied in respect to an individual for a fortnight if the amounts paid in the fortnight are at least $1,500.00.
Amounts paid include gross (before deduction of PAYG) salaries, wages, commissions, bonuses, allowances and salary sacrifice superannuation contributions.
This means that the employer is required to make payments to employees prior to receiving the jobkeeper payments from the government.
In order to qualify for the jobkeeper payment a minimum of $1,500.00 per fortnight must be paid. There is no pro-rata entitlement.
I.e. employees who have been stood down will need to be paid $1,500.00 per fortnight. Similarly, employees who are working but earning less than $1,500.00 will need to be topped-up to that amount.
Where an employee is working and earning in excess of $1,500.00, no additional payment beyond their normal salary/wage entitlement need be made.
The wage condition means that there may be some employees who will receive payments in excess of their normal salary/wage entitlement prior to the COVID-19 pandemic. Eg a person that historically only ever earned $1,000.00 a fortnight will receive an increase to $1,500.00 for the duration of the scheme.
Where an employer has a pay period that is longer than a fortnight, payments are to be applied to a fortnight(s) in a reasonable manner.
At present, there will be some otherwise eligible employees that will not have been paid $1,500.00 in the fortnight commencing on the 30th of March. Eg where employers are awaiting release of the scheme details and have not commenced payments.
It is understood that employers will have an opportunity to make back-payments in order to satisfy the wage condition for these otherwise eligible employees. Further guidance from Treasury and/or the ATO on this issue has been foreshadowed.
It should be noted that superannuation contributions will be payable only in respect to actual earnings of employees. I.e. no superannuation contributions will be payable in respect to payments made to stood down employees or to top-up payments made to those earning less than $1,500.00.
Eg if an employee works and earns $1,000.00 in the fortnight, the employer will need to top-up these earnings by $500.00 in order to meet the $1,500.00 wage condition. In this scenario, superannuation contributions will be payable only on the $1,000.00 that was earned.
Amendments to the Superannuation Guarantee legislation are required in order to give effect to this. At present, we do not know when those amendments are likely to be made and await guidance from the government. Presumably, the amendments will be tabled when Parliament next sits.
Employers that are concerned about the current lack of certainty around superannuation obligations can take some comfort from the fact that the earliest statutory due date for payment of superannuation contributions accruing during the period of the jobkeeper scheme is the 28th of July 2020.
However, with Parliament not due to sit again until August the obligations of employers to pay superannuation contributions looks decidedly unclear.
ADMINISTRATION & REPORTING:
There will be a range of initial and ongoing administrative and reporting requirements associated with participation in the jobseeker scheme.
First and foremost, there will be a nomination process in which entities will be required to notify the ATO that they elect to participate in the scheme. We are currently awaiting release of the “approved form” to attend to this.
In making a decision to participate in the scheme, entities should note that it is a “one in all in” scheme. I.e. all eligible employees must be given the opportunity to participate.
Once a decision to participate has been made, employers must notify all employees in writing of that election to participate.
The employer will then need to ensure that eligible employees complete a nomination before they can seek a jobkeeper payment from the government in respect to each eligible employee.
Entities should also be aware that there will be ongoing reporting requirements around participating employees and also a requirement to report current and projected GST turnover on an ongoing basis.
It is envisaged that the Single Touch Payroll (STP) system will be leveraged in order to assist with meeting the reporting requirements. Further guidance on this is awaited from the ATO.
Lastly, we note that there are a range of integrity measures in place to ensure that the scheme is not improperly manipulated. Care must be taken by employers as amounts received incorrectly will be required to be repaid to the ATO with interest. Other penalties and sanctions may also apply.
In some instances, an employee may be jointly and severally liable to repay overpayments to the government. For example, where they are found to have nominated more than one employer under the scheme.
WHERE TO FROM HERE:
With the bulk of the scheme details now in place, it is incumbent on employers to consider their position. The steps to follow are:
Step 1: Determine if the employer wishes to participate in the scheme
It is not mandatory for employers to participate in the scheme. As such, each employer must consider the pros and cons of participating and decide if they wish to move forwards.
Step 2: Assess eligibility
Employers wishing to participate in the scheme must assess their eligibility to do so. This includes determining if the decline in turnover test is satisfied.
If the “basic test” is not satisfied, employers will need to look to the “alternative test” once the details are made known by the ATO.
Step 3: Notify ATO of participation
Once the approved form becomes available, employers will need to notify the ATO of their election to participate in the scheme.
Step 4: Notify employees of participation
Once an election to participate in the scheme has been made, employers will need to notify all staff in writing of that election.
At present, it is not known if there are any special requirements for this notification. I.e. whether there will be an official template that is to be used.
Step 5: Obtain employee nominations
Once the approved form becomes available, employers will need to arrange for employees to complete nomination forms.
As part of this process, it will be necessary for employers to determine which of the employees is an eligible employee for the scheme.
Step 6: Assess wage condition
Employers will need to review to ensure that the wage condition has been met for eligible employees. I.e. that they have been paid the minimum of $1,500 per fortnight.
Where the wage condition has not been met, employers will need to identify if a back-payment can and should be made. Further guidance is awaited from Treasury & the ATO on this issue.
Additionally, arrangements will need to be put in place to ensure that the wage condition is met moving forwards.
Step 7: Plan cashflow
The jobkeeper payment is in effect a reimbursement arrangement. Employers must make payments to eligible employees first before the jobkeeper payments can be received from the ATO.
Jobkeeper payments are required to be made by the ATO to employers no later than fourteen (14) days after the end of the calendar month in which the fortnight ends.
The first round of payments will be made by the government to employers in May 2020.
Consequently, employers will need to plan their cashflow in order to ensure that they can meet the wage obligation at step 6.
In this respect, the government has suggested that employers who are facing cashflow difficulties talk to their banks about access to a short-term credit facility.
Step 8: Meet administrative & reporting obligations
Once the application process is open, it will be necessary to meet the administrative and reporting obligations to the ATO as a condition of receiving the jobkeeper payments.
Anyone wanting to find out more about the scheme can access further background information on the Treasury website.
The ATO have also advised that they are in the process of preparing guidance materials to assist employers and employees to navigate the system. For those that have not already done so, we recommend that you register for updates with the ATO.
Additionally, it is recommend that employers stay up to date with how the changes to the Fair Work Act associated with the jobkeeper scheme affect their obligations.
In the meantime, we encourage you to get in touch if you need assistance/guidance to determine your eligibility and/or to determine how to move forward with the jobkeeper scheme.
Sky Accountants Ballarat
Phone: 1300 328 855
Office Address: 902 Howitt Street, Wendouree, Victoria 3355, Australia
Postal Address: PO Box 2234, Bakery Hill, Victoria 3354
Sky Accountants Sunbury & Gisborne
Phone: 03 97444522
Sunbury Office Address: Suite 13, 33-35 Macedon Street, Sunbury, Victoria 3429, Australia
Gisborne Office Address: 45 Hamilton Street, Gisborne, Victoria 3437, Australia
Postal Address: PO Box 270 Gisborne Victoria 3437