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Our previous article that summarises the initial JobKeeper 2.0 announcements and JobKeeper 1.0 changes can be found here.

There have been a number of important updates this week in relation to JobKeeper 2.0. We have provided a quick update on these below and will provide further updates during the course of September as needed.

Treasurer's Legislative Instrument

On Tuesday afternoon (15 September), the Treasurer registered Coronavirus Economic Response Package (Payments and Benefits) Amendment Rules (No. 8) 2020 to amend the JobKeeper Rules to formalise the extended JobKeeper program - JobKeeper 2.0. This confirmed the key points of the previous announcements made and the information published by Treasury on their website. There were some changes in wording and emphasis but broadly no change in substance.

The most important item to note relates to the clarification around the reference period for calculating employee hours for the purpose of determining which tier the employees/eligible business participants will be in. While this is broadly consistent with previous announcements, it provides further clarity about eligible business participants in particular.

It was confirmed that the hours worked or hours actively engaged would need to be 80 hours during the reference periods as follows:

Eligible employees The 28 day period finishing on the last day of the last pay period that ended before either:
   - 1 March 2020
   - 1 July 2020.
If your employee was working for you during both 28-day periods, you will need to consider both periods but choose the period that results in your employee receiving the higher rate
Eligible business participants and eligible religious practioners The month of February 2020

Commissioner's Legislative Instrument

However, more importantly, late on 16 September, the Commissioner of Taxation released three legislative instruments dealing with alternative tests for calculating the hours of employees (for the purpose of working out which tier of payment they will get) and the decline in turnover test.

The decline in turnover test instrument had one major change to what was expected and what was the case for JobKeeper 1.0.

The instrument outlined a more restricted approach to attributing supplies for the purposes of calculating GST turnover from JobKeeper 1.0. This was not clear from the earlier published Treasury Fact Sheet and so it was previously understood that the methods available for calculating GST turnover would be the same as JobKeeper 1.0.

In summary, the Legislative Instrument now specifies that entities must calculate GST turnover using the method of attribution in the GST Act that they use for preparing their Business Activity Statements. Essentially, this means that if you are registered on a cash basis, you have to use cash basis; if you are registered on an accrual basis, you use have to use accrual basis. This effectively renders the legislative method from the JobKeeper Rules and the “accrual accounting” method unavailable. This legislative instrument takes precedence over what is outlined in Law Companion Ruling 2020/1. There are important exceptions to this where you are not registered for GST, newly registered or have changed your method.

The Legislative Instruments for the alternative tests for calculating the hours of employees, eligible business participants and religious practitioners are not covered in detail here but they include important information in relation to when alternative periods can be used, what alternative periods can be used, if the employee’s hours are not readily ascertainable and other guidance.

ATO updated guidance

The Taxation Office have also updated their website guidance to reflect the legislative instruments. They have also confirmed the deadline of 31 October will broadly apply for the wage condition and for enrolling for new participants for JobKeeper 2.0.

Summary

All of the above highlights the importance of reviewing the legislative instruments associated with the scheme and the latest website guidance. We strongly recommend seeking advice in relation to JobKeeper 2.0. As at the date of this article, we are still awaiting guidance on alternative decline in turnover tests. Seeking specific advice will ensure that you obtain the right outcomes.

Simon Dinér

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