The JobKeeper Extension and Amendment rules only passed into law on 15 September and the ATO are still finalising the very last pieces of guidance. However, given businesses need to plan for how the changes might impact them, Holmans have attempted to summarise the new rules below.
Unfortunately, the ATO guidance to date doesn’t give us much to work with, with very little in the way of real life examples or unique cases.
The ATO’s summarised guide can be located by clicking here.
Of course, Holmans are here to help and can assist you assess your eligibility just as we did with JobKeeper 1.0. A detailed review of the rules are contained below.
The changes to the JobKeeper scheme in more detail
There will be two extensions to the JobKeeper scheme as follows – each is independently assessed:
Importantly, you must re-qualify for each Extension period. For most businesses, you must be down 30% on the comparative period (Turnover over $1billion must be 50% down) to qualify for the next quarter of JobKeeper support.
For example, if your September 2020 quarter turnover is down 30% when compared to the September 2019 quarter, you will qualify for the JobKeeper Extension from 28 September 2020 to 3 January 2021.
- Re-qualifying is not the same as re-enrolling. We believe that if you are already in the system, it will just be a matter of indicating you re-qualify and reporting key information. Only new entrants will need to “Enrol” via their Business Portal.
- If you are registered for GST and have outstanding BAS statements, you should bring your BAS lodgments up to date as soon as possible. The ATO have indicated that any un-lodged BAS statements may hold up your application for JobKeeper Payments under the JobKeeper extension. While they don’t specifically mention tax returns, the same would probably apply if you had outstanding Tax Returns from 2019 or before.
Key differences to the existing decline in turnover test include that:
- current (i.e. actual) GST turnover is used instead of projected (i.e. estimated) GST turnover;
- the test period is a quarter (3 months), with no option to choose a calendar month; and
- The basis for comparing the quarters is based on your GST reporting method (whether you are “cash” or “accruals” on your BAS) – “To work out which supplies you have made in the turnover test period, you must use the accounting basis you used for GST reporting purposes” (per ATO Website).
- Make sure JobKeeper and Cashflow Boost income/support is correctly noted as “BAS excluded” in your software/BAS reporting.
- Consider delaying large asset disposals like Car Trade-ins or surplus equipment sales until after 1 October.
Importantly, as you are required to use actual GST turnover, eligibility cannot be accurately assessed until after 30 September. You must also compare BAS label Turnover from each BAS – reviewing your Profit and Loss Statement Turnover won’t be enough. In addition, the Commissioner will also be able to deem whether items/transactions can or should be attributed to a quarter where there are unusual circumstances or attempted manipulation (i.e. Delay invoicing and you are on an “Accruals” method for GST).
What if you don’t have a prior year quarter (Alternative Tests)
There are some alternative turnover tests available where you do not have a specific reference period (i.e. prior year Sept 2019 quarter for example, or you were affected by Bushfires for example). These are still being finalised by the ATO, but they recently advised they will “mirror” the JobKeeper 1.0 Alternative Tests.
ATO acting second commissioner Deborah Jenkins also confirmed “There are no changes to the use of alternative tests. Under the extension to JobKeeper, we still have the option,” Ms Jenkins said. “As you can imagine, it’s to take into account things like that people might have had a particularly good year last year, so the relativities look different and it could have been, for example, that they were affected by floods, bushfires et cetera. The option to have an alternative test still applies under the JobKeeper extension.”
Accordingly, we expect the Alternative Turnover Tests rules to be reworded to apply to a quarter, but very little other material changes.
TIP: There is also talk that you will need to inform the ATO via your reporting whether you have applied one of the Alternative Tests in assessing your eligibility.
From 28 September 2020, the payment rate will be split into a Tier 1 rate (i.e. the higher rate) and a Tier 2 rate (i.e. the lower rate) based on the hours employees worked in the reference period. Further, both Tier 1 and Tier 2 payment rates will be reduced in two tranches as follows:
The payment rates apply to all individuals eligible for JobKeeper payments — i.e. eligible employees and eligible business participants. In this article, a reference to an eligible employee includes a reference to an eligible business participant unless stated otherwise. Similarly, a reference to an eligible employer includes a reference to an eligible business (of which the individual is a business participant) unless stated otherwise.
How to determine which payment tier applies
The two-tier payment system will apply to each employee based on their total working hours in the applicable ‘reference period’.
The reference period
The reference period for an individual is determined as follows:
An alternative reference period
The Commissioner may determine that an alternative reference period applies to a specified class of individuals where he considers that the relevant reference period set out above may not be suitable. Though little guidance has been provided to date on how to apply for that discretion.
The payment tiers
The payment tiers will apply as follows:
To be eligible for the Tier 1 rate:
- an employee only needs to satisfy the 80-hour requirement in respect of one reference period where both reference periods (i.e. pre-1 March 2020 and pre-1 July 2020) apply;
- a business participant must also make a declaration that they had “actively engaged” in the business for at least 80 hours during the reference period to the entity (or in the case of a sole trader, to the Commissioner); and
Being ‘actively engaged in the business’ means that you were directly involved in operating and running the business during that time. For example, someone on Parental Leave and in receipt of a Government payment would not be considered “actively engaged in the business” in accordance with ATO and Centrelink rules.
The ATO defined “Actively Engaged” in JobKeeper 1.0 as:
An individual will be actively engaged in the business carried on by the entity if they regularly:
- perform, or manage the performance of, services the business provides
- sell or manage the sale of goods of the business
- perform other activities associated with managing the business
- exercise control over activities related to business strategy and growth.
An individual will not be actively engaged in the business simply because they:
- own an interest in the business or invest capital in it
- provide advice or other assistance to the business from time to time.
Employer’s obligations moving forward
The employer must:
- notify the Commissioner of the payment rate that applies to each individual;
- other than a sole trader — notify the individual of the payment rate within seven days of notifying the Commissioner; and
- Ensure your eligible employees are paid at least the correct “Tier” amount per fortnight.
TIP: As noted above, it is also expected that you will need to inform the ATO via your reporting whether you have applied one of the Alternative Tests in assessing your eligibility.
At the time of writing, the ATO has not released details of whether and how the Commissioner will exercise his discretionary powers under the Amendment Rules No. 8 or how it intends to administer aspects of the extensions. So just like the Cashflow Boost and JobKeeper 1.0, we may find that “additional hurdles” are added by the ATO after the fact. While taxpayers are not usually penalised in such situations, businesses at this stage can not assume they will meet the requirements of the JobKeeper extension until the ATO have released all the finer details which is likely to occur during the December Quarter. This means you may receive JobKeeper support, which is later removed on review by the ATO or cancelled after they release additional criteria.
The ATO will update its information regularly here: https://www.ato.gov.au/General/JobKeeper-Payment/JobKeeper-extension-announcement/
Other Important Changes – Fair Work JobKeeper Provisions Extended – Employee Direction rules
The Fair Work Act JobKeeper temporary provisions have also been extended for “Legacy Employers”
Under the extended JobKeeper provisions, legacy employers can:
- issue JobKeeper enabling stand down directions (with some changes)
- issue JobKeeper enabling directions in relation to employees’ duties and locations of work
- make agreements with employees to work on different days or at different times (with some changes).