ATO guidance – Working out your eligible employees under the new JobKeeper rules

17 August 2020

This is a follow-up newsletter on the topic we shared with you on 13th August 2020. The Coronavirus Economic Response Package (Payments and Benefits) Amendment Rules (No. 7) 2020 was published on 14 August 2020. We herein enclosed the detailed guidance released by the ATO on how to work out your new eligible employees under the Amendment Rules.

Please note:

• if you decide to participate in the JobKeeper Payment scheme, you must nominate all your eligible employees

• ATO is allowing employers until 31 August 2020 to meet the minimum wages payments (i.e. the minimum $1,500 per fortnight under JobKeeper 1.0) for all new eligible employees included in the JobKeeper scheme under the 1 July eligibility test

• As a reminder please ensure if you have new eligible employees you are required to nominate them in your accounting system if you are reporting via STP. This ensures that the ATO has the current number of eligible employees which will appear in your August Jobkeeper reporting Due in early September. If you are registered for STP and do not do this step you are unable to change the number of eligible employees in your Monthly reporting with the ATO.

• Importantly as mentioned above if an employee is now eligible for Jobkeeper under the new rules, the “one in all in” principle applies please review your employee list as soon as possible.

Should you have any questions please contact this office.

Working out your eligible employees

https://www.ato.gov.au/General/JobKeeper-Payment/Employers/Your-eligible-employees/

The eligibility criteria for your employees depends on the JobKeeper fortnight.

From 3 August 2020, you may be able to nominate new employees as eligible employees for the JobKeeper scheme. These new employees must have been employed by you on 1 July 2020 and meet the other eligibility criteria. This can include employees that:

• you employed after 1 March 2020

• were employed by you on 1 March 2020 but were not eligible employees for fortnights ending on or before 2 August 2020, for example, because they only turned 18 after 1 March 2020.

Before 3 August 2020

Employees must satisfy the 1 March test and other eligibility criteria to be an eligible employee for JobKeeper fortnights ended before 3 August. You can access these rules at employees test requirements.

From 3 August 2020

For the fortnights commencing on 3 August 2020 and 17 August 2020, we are allowing employers until 31 August 2020 to meet the wage condition for all new eligible employees included in the JobKeeper scheme under the 1 July eligibility test.

Your employee is an eligible employee for a JobKeeper fortnight starting on or after 3 August 2020 if they:

• are employed by you (including those stood down or re-hired) at any time in the JobKeeper fortnight

• didn't receive any of these payments during the JobKeeper fortnight

- government parental leave or Dad and Partner Pay

- a payment in accordance with Australian workers compensation law for an individual’s total incapacity for work

• agree to be nominated by you (see Nominating employees) and

• either were an eligible employee for a JobKeeper fortnight ended before 3 August 2020 using the 1 March test or they meet certain conditions at 1 July 2020 (the 1 July test).they were employed by you as either a: o non-casual employee (whether full-time, part-time, or fixed-term) o long term casual employee (employed on a regular and systematic basis during the 12 month period that ended 1 July) and not a permanent employee of any other employer

• they were 18 years or older (if they were 16 or 17 they can also qualify if they were independent or not studying full time on 1 July 2020)

• were an Australian resident under the Social Security Act 1991, which requires they reside in Australia, and are one of: an Australian citizen, the holder of a permanent visa, or a Protected Special Category Visa Holder. You can find more information about these requirements from the Services Australia website under residence descriptions. Your employee can also be an Australian tax resident who is a Special Category (Subclass 444) Visa Holder. Employees who aren't permanent residents of Australia must notify you of their visa status to allow you to determine if they're eligible for JobKeeper payments

You can't claim for any employees who:

• were first employed by you after 1 July 2020

• left your employment before 1 July 2020 (except in limited circumstances)

• have been, or have agreed to be, nominated by another employer, except in limited circumstances

• if you are an approved provider of child care services, have ordinary duties relating principally to the operation of those services for a JobKeeper fortnight that commences on or after 20 July 2020.

Casual employees are only eligible if they were employed by you on a regular and systematic basis during the 12-month period that ended 1 July 2020.

If you decide to participate in the JobKeeper Payment scheme, nominate all your eligible employees. You shouldn't nominate only some. However, individual eligible employees can choose not to participate.

If your employees have multiple employers, they can usually choose which employer they want to be nominated by. However, if your employees are long term casuals and have other permanent employment, they must choose the permanent employer and can't nominate you. They can't be nominated for the JobKeeper payment by more than one employer.

f your employee has previously agreed to be nominated as an eligible employee by another employer, or as an eligible business participant, you can only nominate that employee for JobKeeper fortnights starting on or after 3 August 2020 if they meet all the following:

• between 1 March 2020 and 1 July 2020, your employee stopped being:

- an employee of their previous employer, or

- actively engaged as an eligible business participant

• at the time they agree to be nominated by you, your employee has not been rehired by their previous employer or restarted being actively engaged as an eligible business participant, and

• other requirements to be an eligible employee for you for JobKeeper fortnights starting on or after 3 August 2020 (including the 1 July test).

Important: Clients should not act solely on the basis of the material contained in this newsletter. Items herein are general comments only and do not constitute or convey advice per se. Also changes in legislation may occur quickly. We therefore recommend that our formal advice be sought before acting in any of the areas. Client Alert is issued as a helpful guide to clients and for their private information. Therefore it should be regarded as confidential and not be made available to any person without our prior approval.