Treasury clarified some key issues within the original JobKeeper rules, – including for special purpose employer entities.

Following the ATO's legislative instrument providing guidance on the alternative tests to the decline in turnover test in the JobKeeper Rules, Treasury announced on 24 April 2020 a number of measures which will be enacted to clarify the operation of the JobKeeper Rules as announced earlier in March 2020.

Find out more in COVID-19: ATO issues legislative instrument on JobKeeper Rules

The proposed measures appear to address commentary and concerns by a range of industry bodies and employers about a number of matters.

A significant and anticipated measure that will be of interest to most corporate groups, is the proposal to provide an alternative decline in turnover test for entities which are the service or employer entity of a wider group of related entities. This will hopefully unlock the JobKeeper payments for organisations that might have otherwise been excluded due to the use of a service or employer entity.

What are the proposed measures?

We have summarised each of the proposed measures below:

Employees employed in special purpose entity within a wider group of entities

A critical issue with the current JobKeeper rules is that many organisations use a special purpose entity to employ employees, rather than an operating entity. As a result, demonstrating a decline in turnover for this employer entity has been difficult or not possible, even of if other operating entities in the group have sufficient decline in GST turnover to qualify.

The proposed changes will provide an alternate decline in turnover test for eligibility in these circumstances. This alternate test will apply where an entity provides the services of its employees to one or more related entities, where those related entities carry on a business deriving revenue from unrelated third parties. The alternate test will be by reference to the combined GST turnovers of the related entities using the services of the employer entity.

It is hopeful that this measure will 'unlock' JobKeeper payments for many organisations and corporate groups that would otherwise expect to be eligible, but were not under the original formulation of the JobKeeper Rules.

'One in all in' principle

Measures to clarify the 'one in all in' principle of the JobKeeper rules will ensure that once an employer decides to participate in the JobKeeper scheme and their eligible employees have agreed to be nominated, the employer must ensure all of those eligible employees are covered by its participation in the scheme. This includes all eligible employees who are undertaking work for the employer or have been stood down.

In other words, a participating employer cannot pick and choose which consenting employees to seek JobKeeper payments for. This will address some concerns about employers using the scheme to unfairly pressure employees to agree to changes to their employment conditions.

Full time students

As noted in the explanatory statement to the existing rules, the benefit of the JobKeeper payment to workers over the age of 16 is justified for those who are financially independent and who require the security provided by participation in the JobKeeper scheme and the maintenance of the working relationship that it affords. The rules will provide that full time students who are 17 years old and younger, and who are not financially independent, are not eligible for the JobKeeper payment. This clarification will apply prospectively, which would mean an eligible employer that has already met the wage condition of paying such an employee $1,500 for a fortnight could be entitled to a JobKeeper payment in arrears for that fortnight.

It remains to be seen what evidence an employer will have to obtain to demonstrate if an employee is, or is not, financially independent.

Charities with Government revenue

Charities which deliver significant services that are funded by government will be able to elect to exclude government revenue from the decline in turnover test to assess eligibility for the JobKeeper payment. This means they can use either their total turnover, or turnover excluding government revenue, to assess eligibility.

Religious practitioners

Measures designed to address the issue that most religious practitioners are not 'employees' will be implemented to ensure JobKeeper payments can be made to religious institutions.

International aid organisations

Changes will allow entities that are endorsed under the Overseas Aid Gift Deductibility Scheme, or for developed country relief, to meet the requirement that not-for-profits pursue their objectives principally in Australia. These entities, being not Australian resident, are presently ineligible.

Universities

Treasury has clarified that Federal Government assistance will be included in the decline in turnover tests.

It is hoped that these measures are passed through Parliament and given effect from the date the original JobKeeper rules were made to ensure they operate smoothly and, where relevant deliver the intended benefits for employers and employees for the entire JobKeeper period.

What next steps should I take?

If you would like assistance in determining whether alternative decline in turnover tests could apply to your business and assist you in obtaining the JobKeeper payment, please contact any member of the MinterEllison team listed below