JobKeeper Q&A - Part 4

 

If an employer stands down all employees, can some be paid for hours they work while not working their regular hours. It seems inequitable if all employees are paid at least JobKeeper, but some will be asked to work.
To be eligible for JobKeeper assistance employees must receive a minimum of $1,500 per JobKeeper fortnight, regardless of hours actually worked. There have been amendments made to the Fair Work Act that enables employers who qualify for the JobKeeper scheme to give directions to their employees called “JobKeeper enabling directions”. These will not be explained here, but are relevant to this question. Refer to https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/flexibility-in-workplace-laws-during-coronavirus/jobkeeper-changes-to-the-fair-work-act


Is the decline in turnover test calculated on a cash or accruals basis? Does the employer get to pick which to use or does it depend on how you lodged your last tax return or GST reporting basis?
In our view, that question is not relevant (however, see below ATO information). This is because the GST legislation, when referring to projected and current GST turnover, refers to the value of supplies made, or likely to be made in the period. The process is:

  • Determine what supplies have been made or are likely to be made during the period.
  • Determine the value of those supplies and sum the values.
The question of whether the amounts should be accounted for on a cash or accruals basis does not arise in the above process. Despite what we have said above, the ATO have flip flopped on this issue but at the time of writing (3 May 2020) the document entitled “Applying the turnover test” (QC 62132) states the following:
  
“Cash or accruals basis

The turnover calculation requires you to include sales that you have made, or are likely to make, in the relevant month or quarter. The calculations are based on the time you make the sales.

There are different ways of calculating turnover that may be reasonable in your circumstances.

As a practical matter, we expect that you will use the GST accounting method that you normally use. In other words, you may use a cash or accruals approach to determining the value of your sales in the relevant month or quarter. If you do this, typically, turnover for the relevant period will equal your GST exclusive sales less your input taxed supplies.

If you use GST calculations to determine turnover, don’t forget to include GST-free sales.

If you normally account for GST on an accruals basis, but seek to calculate on a cash basis (or vice versa), we may seek to understand your circumstances to ensure that the calculation achieves an appropriate reflection of your turnover.

If you aren’t registered for GST, we would expect you to use the same accounting method you use for income tax purposes.

Importantly, whichever basis you use must be used consistently in comparing the month or quarter in 2020 with the comparison month or quarter in 2019.”

 

Is an “eligible business participant” required to be paid a minimum of $1,500 per JobKeeper Fortnight to be eligible for JobKeeper assistance?
No. Unlike for an employee, there is no “wage condition” to be satisfied for an eligible business participant. It appears that the entity that receives the $1,500 on behalf of the individual can choose to do what it likes with that amount.


Are the non-employee owners/operators of start-up businesses eligible for JobKeeper assistance?
The key issue is to determine whether the business has satisfied the decline in turnover test. The business will have to satisfy the “alternative test”. This requires the Commissioner to make a legislative instrument in relation to the particular class of business. At the time of writing the Commissioner has not released any legislative instrument. On the assumption that a future legislative instrument will enable the business to satisfy the decline in turnover test, provided that the entity satisfies the criteria for entitlement to JobKeeper assistance for a business participant and the individual meets the eligibility criteria of an eligible business participant, the nonemployee owners/operators will be able to claim one JobKeeper payment. The key issue is to determine whether the business has satisfied the decline in turnover test. The business will have to satisfy one of alternative tests discussed above.


What if the entity’s pay period does not match the JobKeeper Fortnight?
The duration of the entity’s pay period is not relevant for determining whether the wages condition has been met for a JobKeeper fortnight. All that is required is that the minimum amount of $1,500 has been paid within the particular JobKeeper fortnight. However, for the first two jobkeeper fortnights (ending 26 April 2020), the ATO has stated that it will accept that the wages condition has been satisfied if an employee has been paid a minimum of $3,000 for the first two jobkeeper fortnights by the 8th of May. The JobKeeper rules also provide that if an employer’s ordinary arrangement is to pay its employees on a frequency that is longer than a fortnight, then the payment can be allocated between fortnights on a reasonable basis. Also, the JobKeeper rules provide the Commissioner with an ability to treat a particular event that happened in a fortnight as having happened in a different fortnight if the Commissioner considers it reasonable to do so.


Are Government schools eligible for JobKeeper assistance?
No, as Australian government agencies, local governing bodies, or wholly owned entities of these agencies/bodies are specifically excluded from JobKeeper eligibility, government schools cannot be eligible employers.


What is the situation for employees that were stood down?
Employees that were employed on 1 March 2020 and have been stood down from their employer will be eligible for JobKeeper assistance provided the eligible employer and eligible employee tests are met.






If an employer did not pay wages and reported nothing on STP for the month of April, will the employer get JobKeeper payments for the two April fortnights?
No. The JobKeeper scheme starts from 30 March 2020 with employers to receive the first reimbursements in May. Therefore, if the employer meets the JobKeeper scheme eligibility and is intending to claim JobKeeper payments, payments to employees on or after 30 March 2020 should be made under the JobKeeper arrangements. As per Prime Minister’s press conference on 3rd April 2020: “Well, the employers need to talk to their banks straight away, because what we’re providing under the JobKeeper program is an absolute guarantee you can take to the bank. Because those payments will be made for each of those employees and that should enable them to put a facility in place with their bank so they can make those payments to their employees.”


What is the situation for groups where individual group members are on different BAS cycles? On what basis is the decline in turnover test conducted?
The frequency with which BASs are lodged is, technically, irrelevant for the purposes of the decline in turnover test. However, practically, businesses may choose to use their BAS period as the comparison period between 2020 and 2019. The decline in turnover test will apply to each business connected with or affiliated with a group. Individual businesses within a corporate group may be eligible for the JobKeeper payment while other businesses in the group may not be eligible. Further, GST groups are ignored for the purposes of the decline in turnover test.


How is the decline in turnover determined where one ABN is used for multiple business?
The decline in turnover test applies to the “entity” and the entity’s projected GST turnover.


Can an employer choose when to be apply for the JobKeeper scheme?
Yes, indeed employers must elect to participate in the scheme. Employers are not automatically included in the scheme. An employer may not come to the conclusion that it has had the necessary decline in turnover until, say, July 2020. The employer can elect to become part of the JobKeeper scheme in the relevant fortnight in which the employer comes to that conclusion.


Are any of these tests limited or not available to Significant Global Entities?
No, provided the eligibility tests are met. It should be noted that a Significant Global Entity might need to have a 50% decline in turnover to be eligible for JobKeeper, although this is not necessarily the case.


Are the JobKeeper payments assessable income to the employer?
Yes, but as the JobKeeper payment will be equal to or less than the amount actually paid to the employee the JobKeeper payment will be offset by the allowable deduction created by the payment to the employee. Further, the JobKeeper payments are assessable income to the employee.


What is the situation with PAYGW obligations during the JobKeeper scheme period?
Employers are required to continue to meet their PAYGW obligations during the JobKeeper scheme period. The JobKeeper payments are before tax amounts and therefore tax should be withheld and remitted as appropriate.


What is the process for employers to elect to join JobKeeper?
All details are on the ATO website. Refer to https://www.ato.gov.au/general/jobkeeper-payment/employers/enrol-for-the-jobkeeper-payment/.


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