New JobKeeper rules now in effect
Technical article

New JobKeeper rules now in effect

On Friday, the Treasurer issued amendments to the Coronavirus Economic Response Package (Payments and Benefits) Rules (the Rules) to give effect to the Government’s earlier announcement that it would extend the employee test date to 1 July 2020.

This change has implications for employees, including those not previously eligible for the payment. There are strict deadlines for providing notifications under the amended rules. Accordingly, employers that are currently accessing JobKeeper payments need to review the impact of these amendments immediately.

No amendments have yet been made to extend the scheme beyond its current end date of 27 September 2020.

Which employees are now eligible?

From 3 August 2020, the testing date for eligible employees has been extended to 1 July 2020 (previously this was 1 March 2020). This extends the application of JobKeeper to employees that have been engaged by an employer since the scheme was originally introduced.

Employees who are already receiving the payment based on their eligibility at 1 March 2020 remain eligible and do not need to retest their eligibility.

An individual can be eligible for JobKeeper if, on 1 July 2020, the individual meets all three of the following conditions:

  1. employed (as a permanent or long-term casual) by the business;
  2. 18 years or older (or if they were 16 or 17, they were independent or not studying full time on 1 July 2020); and
  3. met the residency test.

If an employee was employed on 1 March 2020 but didn’t satisfy any of the conditions above, but did satisfy those conditions on 1 July 2020, it is possible that those employees could now be eligible for JobKeeper payments.

However, special rules apply where the employee has transferred from another business where that employee previously qualified for JobKeeper (see below).

What do I need to do now?

The JobKeeper scheme operates on a ‘one-in all-in’ basis, meaning that employers do not have a choice as to which employees they nominate for the payment. Businesses currently enrolled in JobKeeper will need to review their employees to identify those individuals that may now meet the eligibility conditions (who were previously ineligible under the 1 March 2020 requirements). There is a requirement to provide each of these employees with a nomination notice by 24 August 2020, detailing the steps the employee must take to return the notice.

Businesses that have not yet enrolled in JobKeeper will have to notify all relevant staff within seven days of electing to participate.

Businesses will also need to ensure that they have followed the correct processes to identify and confirm these new employees with the ATO for the relevant fortnight, in order to claim JobKeeper payments.

When do I have to pay these employees?

Eligible employers will be able to claim JobKeeper in respect of these new employees from 3 August 2020 (JobKeeper FN10). While ordinarily this would mean that employers would need to have met the wage condition (minimum $1,500 payment) for these employees by the end of the fortnight (being 16 August 2020), the ATO has provided an extension of time to meet this condition (see here). Businesses will have until 31 August 2020 to meet the wage condition for all new eligible employees for the fortnights commencing on 3 August 2020 and 17 August 2020.

What happens if my employees transferred between 1 March 2020 and 1 July 2020?

Previously, an individual was prevented from providing a nomination notice to more than one employer. Under the changes, individuals who have previously nominated as an eligible employee or eligible business participant with one entity will be able to re-nominate as an eligible employee of another entity in limited circumstances. This will apply where the individual ceased employment (or ceased to be actively engaged in the business) of the previous entity before 1 July 2020.

Returning JobKeeper employees

A special rule has been provided for returning employees of an entity where the entity and employee previously qualified for JobKeeper. In such cases, the employee can return to the original employer and continue to qualify for JobKeeper with that original employer. The provisions do this by preserving the 1 March 2020 employment test for that returning employee with the original employer. However, the employee must provide the business with a notice in the approved form stating whether they have given a nomination notice to another entity. This must be done within 7 days of being re-employed (or by 24 August 2020 if they were employed prior to 15 August 2020).

Is the entitlement of my existing employees affected?

The entitlement in respect of existing eligible employees will not be affected. Where a business has already enrolled in JobKeeper, employees that previously satisfied the 1 March 2020 criteria will remain eligible employees of the business, providing the employer continues to meet ongoing payment and reporting obligations. They will not be required to submit an additional nomination notice, nor will the business be required to re-assess their work patterns to cover the period up to 1 July 2020.

When can we expect legislation to extend JobKeeper beyond September?

These amendments only enact the announced changes in respect of employee entitlements. It is not clear when amendments to the legislative instrument will be introduced to extend the scheme beyond its original end date in September 2020.

What are the next steps?

For more information or to review your existing arrangements and determine what steps are required, contact a Pitcher Partners representative.

This content is general commentary only and does not constitute advice. Before making any decision or taking any action in relation to the content, you should consult your professional advisor. To the maximum extent permitted by law, neither Pitcher Partners or its affiliated entities, nor any of our employees will be liable for any loss, damage, liability or claim whatsoever suffered or incurred arising directly or indirectly out of the use or reliance on the material contained in this content. Pitcher Partners is an association of independent firms. Pitcher Partners is a member of the global network of Baker Tilly International Limited, the members of which are separate and independent legal entities. Liability limited by a scheme approved under professional standards legislation.

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Stephen Nisbet

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