JobKeeper Extension

18 September 2020

In July 2020, the Government announced that the existing JobKeeper Scheme would be extended until 28 March 2021 but with changes to the payment rates and to how the decline in turnover is tested.

Legislation to extend the scheme has now received royal assent and this week, both the Treasurer and the ATO have now registered legislative rules regarding how the extended scheme will be applied. 

With the extended JobKeeper scheme beginning in just over a week, this brief provides the key information you need to know.

JobKeeper Extension – Key changes

The extended JobKeeper scheme will retain many of the features of the current scheme, with the following notable changes applying from 28 September 2020:

  • Two separate extension periods exist.

For each extension period, the decline in turnover test must be retested and the rate of payment is reduced.

  • A two-tier payment rate will apply based on the numbers of hours worked in a reference period by an employee or the number of hours an eligible business participant was actively engaged in the business during the reference period.
  • Alternative tests may be applied in determining which payment rates apply.
  • Employers and businesses will need to nominate the rate they are claiming for each eligible employee and/or eligible business participant.

TIP: If you are currently topping up your employees’ pay to satisfy the wage condition, ensure that you review and update your top up payments, and superannuation where you choose to pay for hours not worked, according to the relevant tier rate for both Extension periods 1 and 2 as appropriate.

THE DETAIL YOU NEED TO KNOW

Eligibility under the revised turnover tests 

How a business applies the decline in turnover test under the extended scheme will depend on which extension period they are applying the test in, and whether the business is a new or existing participant in the JobKeeper Scheme.

To qualify for payments under the extended Scheme, entities must satisfy both the original decline in turnover test and an additional test.

Existing participants

Businesses participating in the current JobKeeper scheme are not required to apply the original decline in turnover test again (as they have already satisfied the test), however, must satisfy the actual decline in turnover test for the relevant extension period.

NOTE: Existing participants are not required to re-enroll for the extended scheme and employees are not required to renominate if their employer is claiming payments for them under the current JobKeeper scheme. They will however need to advise the ATO of the relevant payment rate of employees, as detailed further below.

New participants

Businesses wishing to enrol in the extended scheme will be required to satisfy both tests.  Practically speaking however businesses that satisfy the actual decline in turnover test, will also satisfy the original decline in turnover test, due to the extension of the testing periods.

NOTE: Eligibility to JobKeeper Extension 2 does not require eligibility to either the current scheme or to JobKeeper Extension 1.

Actual decline in turnover and turnover comparison periods

For those businesses with an aggregated annual turnover of over less than $1 billion, the decline in turnover test will be satisfied for each period where:

Timing of supplies

Unlike the original decline in turnover test, under the extended scheme there is only one method businesses can use to determine when they make a supply.  Supplies must be allocated to a period on a GST reporting basis, even if you are not registered for GST.

We welcome this change, which was introduced following acknowledgement of the complexity of the previous “timing of supply” rules, to provide compliance savings to businesses.

Essentially, businesses that report GST on their Business Activity Statements (BAS) on an accrual basis will count supplies to the turnover test at the earlier of when an invoice is issued, or payment is received. For businesses reporting on a cash basis, the supply will count when payment is received.

Businesses that are not registered for GST can choose the accounting method (i.e. a cash or accrual basis) they wish to use and must apply the relevant GST attribution rules for the purposes of determining when they have made supplies.

A consistent method must be applied across each relevant comparison period.

Specific rules will apply to those businesses that have changed their accounting basis during the year, however they will generally be required to use their accounting basis from the first tax period of the relevant comparison period.

NOTE: Whilst the new measure will provide compliance savings, the flexibility of determining when a supply is made that was afforded in the first version of JobKeeper has now been removed and businesses will essentially be locked into using a particular attribution method.  This may mean that the method that a business used to determine eligibility under the current JobKeeper scheme will not be available for use under the extended scheme.

Determining eligibility

As detailed above, those businesses registered for GST, are expected to assess their eligibility based on details reported in their BAS.  Given the lodgement date for the September and December BAS do not align with the start of the extension periods, businesses will need to assess their eligibility for the extended scheme in advance of these lodgement dates. 

It is expected that this information should be available from the GST reporting functions of most business accounting software, however it is imperative that the invoicing of supplies and receipt of debtors collections is up to date and entered into the accounting records on a timely basis, rather than simply as a month or quarter ended process.

Those businesses that are not registered for GST will be required to work out their GST turnover using their existing business records that show where they issued invoices or received payments.

The payment tiers

A two-tier payment system will apply to each employee and eligible business participant based on their total working hours in the applicable reference period.

To be eligible for the Tier 1 rate (i.e. the higher rate) an employee or an eligible business participant needs to satisfy the 80-hour requirement in respect of the relevant reference period/s.  Where an employee is a 1 March employee, the employer must assess both February and June reference periods to assess whether the employee would have worked more than 80 hours in either reference period.

Eligible business participants are also required to make a declaration to the ATO stating that the 80-hour threshold test was met.  Where no declaration is made, the Tier 2 rate will apply regardless of the number of hours of active engagement in the business by the business participant.

Satisfying the 80-hour test

For employees, it has now been made clear that hours include actual hours worked and hours of paid leave (i.e. including but not limited to annual leave, whether taken at full or half pay for example under purchases leave arrangements, long service leave, sick leave and paid public holidays) during the reference period. 

TIP: Employers will generally only be required to determine the hours worked for part time and casual employees as it is expected that full time employees will meet the minimum number of hours required to access the Tier 1 rate.

The 80-hour threshold test for eligible business participants is based on hours of active engagement in the business.

Active engagement by an individual, whilst not defined is taken to include actively operating the business or undertaking specific tasks in business development and planning, regulatory compliance or similar activities in an applicable reference period. 

Where a business participant held a separate full time job, or the business operations were not active in the reference period or had all or most duties or activities carried out by other employees, then it would be likely that the business participant would not satisfy the test.

NOTE: Once a payment rate has been determined for an individual, it is not required to be retested and will apply, where relevant for the duration of the extended scheme.

Records

It is expected that employers will use their existing employment records (i.e. payroll data, timesheets or employment contracts) to determine whether employees meet the 80-hour threshold.  Under industrial law, employers are generally required to keep records of hours worked by casual or irregular part time employees that are paid on an hourly basis, so it is expected that such records would be readily available to employers.

The Commissioner has discretion to apply the Tier 1 rate where the Commissioner is satisfied that the hours of the individual are not readily ascertainable and in such cases may determine that specified circumstances are taken to apply such that the higher rate may be applied. 

The hours of an individual may not be readily ascertainable where the amount paid to an individual by the business is not tied to an hourly or contracted rate or where there are no or incomplete records of the relevant hours.

It is important to note that this discretion will only apply to certain classes of individuals.  For example, for individuals paid on a commission basis and to which no records of their hours have been kept, the Commissioner has discretion to apply the higher payment rate where that individual is paid $1500 or more in salary, wages or commissions during the reference period.

TIP: Businesses and eligible business participants must be able to reasonably demonstrate the basis on which they determined that a business participant was actively engaged in the business for the required number of hours during the reference period.  Penalties for making false and misleading statements will apply should an individual be found to have made a false declaration.

The reference periods

TIP: Pro rata calculations will need to be performed if an employer has a monthly pay cycle, to test hours back to a 28-day reference period.

The Commissioner also has the power to determine that an alternative reference period can be applied if the standard reference period is not suitable.  The alternative reference periods will only apply to specified classes of individuals.  These classes of individuals include those eligible employees:

  • who fail to meet the 80-hour threshold test; and
  • when compared to earlier 28-day periods, it is found that the reference period is not representative of the employee’s usual hours; and
  • where a specified circumstance applies, such as where an employee was employed part way through the reference periods or where the business changed hands.

The hours worked in a particular reference period may not be representative of an employee’s standard hours where for example:

  • the employee has taken unpaid leave such as sick leave or parental leave; or
  • an employee’s hours of work varies due to roster schedules for example in FIFO arrangements.

An employer must be able to identify the circumstances which affected the number of hours worked.  For these specified classes of individuals, the Commissioner will allow employers to look back to an earlier 28-day period that is representative of the employee’s normal hours, when such circumstances did not exist, and use this as the reference period for determining whether the 80-hour test is satisfied.  For those employees whose hours vary due to roster scheduling, it may be permissible to use an average of hours worked over the employee’s rostering schedule and proportionately adjusted over 28 days, to work out the hours in a typical 28-day period.

Other examples of specified circumstances include where an employee was not employed during the reference period or where the first pay cycle ended on or after 1 March 2020 or on or after 1 July 2020 or where an employee was transferred to another entity within a wholly owned group.

For these classes of individuals, the Commissioner will allow the employers to look forward to a later 28-day period, where the alternative reference period is the first 28-day pay period ending on or after 1 March 2020 or 1 July 2020 that wholly occurs during a pay cycle.

Where an eligible business participant is required to consider an alternative reference period, for example if they were not actively engaged in February 2020 due to sickness they must consider the most recent 29-day period, wholly within a calendar month ending before 1 March 2020 that was representative of their typical engagement.

Where the business participant only commenced to be engaged after 1 February 2020 but before 1 March 2020, a forward looking 29-day period would be appropriate.

NOTE: There may be more than one reference period (including an alternative reference period) that applies to an individual. If the individual satisfies the 80-hour threshold in any one of these reference periods, the Tier 1 rate will apply.

Notification requirements

Businesses must:

  1. Notify the ATO which payment rate applies to each eligible employee – failure to make a valid notification will result in a loss of eligibility for JobKeeper payments for that period.
  2. Notify each individual (excluding sole traders) within seven days of notifying the ATO of the payment rate applied.
Not eligible for the extended scheme?

For those employers that do not qualify for the extended scheme but have experienced a decline in their turnover of at least 10%, a concession exists in which they can continue to access temporary Fair Work Act JobKeeper enabling directions.

These temporary provisions include directions to reduce employees’ ordinary hours by 40 per cent of the hours they worked before the pandemic struck, and directions in relation to duties and location of work. However, the annual leave directions that were permitted during the original JobKeeper scheme will cease to have effect from 28 September 2020 for all employers, regardless of whether entitled to the extended JobKeeper scheme or due to satisfaction of the 10% decline test.

To access this concession, employers must obtain 10 per cent decline in turnover certificate from either a registered tax agent, a BAS agent or a qualified accountant.

Small-business employer?

Those businesses with less than 15 employees are not required to obtain a tax agent decline in turnover certificate and are instead permitted to provide a statutory declaration regarding the businesses’ decline in turnover.  This declaration must be completed by the employer or someone that is both authorised by the employer and has knowledge of the employer’s financial matters.

Think you qualify for the extension scheme?  Here’s what you need to do

From 28 September 2020, participating businesses must do all of the following:

  • Work out the payment rate that applies to each eligible employee and/or eligible business participants.
  • Notify the ATO and the eligible employees and/or eligible business participants what payment rate applies to them
  • Meet the wage condition – i.e. during Extension period 1 businesses must pay their eligible Tier 1 employees at least $1,200 per fortnight and all other eligible employees at least $750 per fortnight.

TIP: Business registered for GST should lodge their BAS for the September 2019 and December 2019 quarters as soon as possible (or for equivalent months, if they report monthly) as the ATO has advised that un-lodged BAS may hold up payment applications under the extension scheme.

New participants can enrol in the scheme at any time subject to meeting the eligibility requirements however to claim payments for the October JobKeeper 2020 fortnights, new participants must enrol by end of October.  The ATO will allow an extension to the timeframe (to 31 October 2020), for employers to meet the wage condition for the first two JobKeeper fortnights (i.e. starting 28 September 2020 and 12 October 2020)

WHERE WE CAN ASSIST YOU

If you would like to discuss any matters in this newsletter in further detail, please do not hesitate to contact your Cooper Partners Engagement Team.

This newsletter is current as of 18 September 2020, however, please note that announcements and changes are being made by the Government and the ATO regularly, and we expect that the tax and business-related responses will continue to evolve.  Before acting upon the content of this newsletter, please contact us to discuss how the above applies to your specific circumstances.

This information is general advice only and neither purports, nor is intended to be advice on any particular matter.
No responsibility can be accepted for those who act on the contents of this publication without first contacting us and obtaining specific advice.
Liability limited by a scheme approved under Professional Standards Legislation.
For further information please refer to our privacy policy 

News Flash – Job Keeper Update

20 August 2020

IMPORTANT CHANGES TO ELIGIBILITY AND APPROACHING DEADLINES 

Employers top five must do actions
  1. Businesses participating in the existing JobKeeper scheme must reconsider the eligibility of their employees in order to identify those employees now brought into the existing JobKeeper Scheme under the new 1 July 2020 eligibility test.
     
  2. Familiarise yourself with the revised employee eligibility criteria (see below) which applies to the current JobKeeper Fortnight 10 which started on 3 August 2020
     
  3. Where additional employees are identified, obtain any new Employee Nomination Notices by this Friday 21 August 2020.
     
  4. Make sure you meet the $1,500 payment requirement for these employees by 31 August 2020 in order to satisfy the wage condition for the JobKeeper fortnights commencing on August 3 and August 17 respectively.
     
  5. Notify the Commissioner in the approved form, of information about the newly nominated individuals and their nomination.
Key takeaways
  • Failure to obtain the employee nomination notice and meet the wage condition in respect to newly identified employee, will mean that you will be in breach of the one in, all in principle and the JobKeeper minimum wage condition under the Fair Work Act and may mean that the business’ eligibility for the scheme is lost (i.e. for all employees, not just the newly identified ones).
     
  • You are not required to retest the eligibility of existing employees already covered by the JobKeeper Scheme (i.e. based on the 1 March reference date) and are not required to obtain new employee nomination forms for these employees
Recap of employee eligibility

Additional employees are now eligible for the JobKeeper payments under both the existing and extended JobKeeper schemes where they:

  • are currently employed by an eligible employer (including if they were stood down or rehired).
     
  • were for the eligible employer (or another entity in their wholly-owned group) either: – a full-time, part-time or fixed-term employee at 1 July 2020; or
    • a long-term casual employee (employed on a regular and systematic basis for at least 12 months) as at 1 July 2020 and not a permanent employee of any other employer.
    • were aged 18 years or older at 1 July 2020 (if you were 16 or 17 you can also qualify if you are independent or not undertaking full time study).
       
  • were either:
    • an Australian resident (within the meaning of the Social Security Act 1991); or
    • an Australian resident for the purpose of the Income Tax Assessment Act 1936 and the holder of a Subclass 444 (Special Category) visa as at 1 July 2020.
    • were not in receipt of any of these payments during the JobKeeper fortnight: 
      • government parental leave or Dad and partner pay under the Paid Parental Leave Act 2010; or 
      • a payment in accordance with Australian worker compensation law for an individual’s total incapacity for work.
Where we can assist you

If you would like to discuss any matters in this newsletter in further detail, please do not hesitate to contact your Cooper Partners Engagement Team.

This newsletter is current as of 20 August 2020, however, please note that announcements and changes are being made by the Government and the ATO regularly, and we expect that the tax and business-related responses will continue to evolve.  Before acting upon the content of this newsletter, please contact us to discuss how the above applies to your specific circumstances.

This information is general advice only and neither purports, nor is intended to be advice on any particular matter.
No responsibility can be accepted for those who act on the contents of this publication without first contacting us and obtaining specific advice.
Liability limited by a scheme approved under Professional Standards Legislation.
For further information please refer to our privacy policy 

JobKeeper Round 2

22 July 2020

After weeks of uncertainty about the future of the JobKeeper and JobSeeker emergency payments, the Morrison government has announced that it will extend the schemes for a further six months (13 fortnights), but both schemes will be reduced after a Treasury review foresees such subsidies in the current form could act as disincentives to work as the economy recovers. 

The extension of the schemes postpones the looming September JobKeeper cliff, which is good news for many businesses particularly those that are also relying on other stimulus measures such a rent deferrals and insolvency protection which are also set to expire.

The JobKeeper scheme has also been tweaked to ensure that businesses can continually prove that they are still being impacted by the COVID-19 pandemic.

The key points from these announcements are:

  • The JobKeeper scheme is to be extended a further six months to 28 March 2021;
  • Fortnightly JobKeeper payments to be reduced;
  • New rates will apply to part-time and casual employees;
  • Eligibility for the scheme is to be retested after September 2020 and in January 2021;
  • No sectoral targeting is proposed;
  • Business participants who are not employees remain eligible on the same basis as employees;
  • Employers must pay employees first before they can receive JobKeeper; and
  • No immediate effect of announced changes.

NEW RATES AND GREATER RECORD KEEPING

In response to a distortion of wage relativities between lower and higher-paid jobs, the government will adopt two payment tiers that more closely reflect the incomes of those who previously worked fewer hours.

Businesses and not-for-profits will be required to nominate which payment rate they are claiming for each of their eligible employees (or business participants).

ELIGIBILITY TIGHTENED AND ADDITIONAL TESTING DATES APPLIED

Under the original scheme, eligibility was established as a once only test with affected businesses required to demonstrate a decline in turnover of 15%, 30% or 50% depending the nature of the business and its size.  Accordingly, once businesses qualified for the scheme, they could access the JobKeeper payments for the full six months in some cases, regardless of whether turnover was reestablished or improved.

From 28 September 2020, businesses and not-for-profits will still be required to demonstrate that they meet the required decline in turnover (i.e. 30% for businesses with turnovers of $1 billion or less, 50% for those businesses with turnover of $1 billion or more, and 15% for ACNC registered charities). 

However, businesses will be now required to assess their eligibility by reference to their actual June and September 2020 quarter turnovers (as opposed to their projected GST turnover) to demonstrate they have suffered an ongoing significant decline in turnover.

Businesses will need to demonstrate they have experienced the relevant decline in turnover in both of those quarters to be eligible for the JobKeeper payment in the December 2020 quarter.

Employers will also need to reassess their eligibility in December 2020 to qualify for the payment in the March 2021 quarter and will be required to demonstrate that they have met a decline in turnover in each of the previous three quarters ending on 31 December 2020.

 ALTERNATIVE TESTING MAY BE AVAILABLE

The Commissioner will have discretion to set out alternative tests that would establish eligibility in specific circumstances where it is not appropriate to compare actual turnover in a quarter in 2020 with actual turnover in a quarter in 2019, in line with the Commissioner’s existing discretion.

WHAT’S STAYED THE SAME?

The eligibility rules for employees remain unchanged. The self-employed will be eligible to receive the JobKeeper Payment where they meet the relevant turnover test and are not a permanent employee of another employer.

The scheme will continue to operate via the ATO, with payments made to employers in arrears. Employers must continue to satisfy the “wage condition” by making payments to employees equal to, or greater than, the amount of the JobKeeper Payment (before tax), based on the payment rate that applies to each employee.

 TIME TO ADJUST TO CHANGES GRANTED

The government has stated that the changes to the rate and eligibility of the extended JobKeeper program would not be implemented immediately, with businesses and their advisers given time (several months) to digest and adjust to the new announcements.

BUT… MUST ASSESS ELIGIBILITY PRIOR TO BAS DEADLINE

As the deadline to lodge a BAS for the September quarter or month is on 28 October 2020, and the December quarter (or month) BAS deadline is on 28 January 2021 for monthly lodgers or 28  February 2021 for quarterly lodgers, businesses and not-for-profits will need to assess their eligibility for JobKeeper in advance of these BAS deadlines in order to meet the wage condition (which requires them to pay their eligible employees in advance of receiving the JobKeeper payment in arrears from the ATO).

The Commissioner will have discretion to extend the time an entity has to pay employees in order to meet the wage condition, so that entities have time to first confirm their eligibility for the JobKeeper Payment.

Alternative arrangements will be put in place for businesses and not-for-profits that are not required to lodge a BAS (eg if the entity is a member of a GST group).

 JOBSEEKER ALSO TO BE TWEAKED

As planned, JobSeeker payments will continue at the current rate until the end of September 2020 and then will be extended until December 2020 at a lower amount.

ATO AUDITS AND CLAWBACKS

Today’s announcements come amongst recent reports of thousands of sole traders being advised by the ATO that their JobKeeper applications are being reviewed and that they may lose access to their payments and be required to repay wage subsidies.

These reports serve as a reminder that the ATO will be closely scrutinizing eligibility and declaration forms to ensure that businesses receiving JobKeeper payments are:

  • eligible in relation to their business income (i.e. meet the decline in turnover test);
  • claiming payments for eligible employees;
  • making correct claims; and
  • not manipulating their turnover to satisfy the turnover test.

ATO audits have established that many new businesses may have enrolled in the scheme under the basic turnover test and not the alternative turnover test which was subsequently rolled out by the government for those businesses that have been trading for less than 12 months.

Where the ATO finds that a business has incorrectly enrolled for the scheme, the ATO has the ability to demand repayment and apply penalties, noting however that the ATO has stated that it will not seek to apply penalties to those  businesses that have made genuine mistakes on their JobKeeper applications.

 NEXT STEPS

  • We remind you that eligibility to the current JobKeeper scheme may still be assessed until 27 September 2020 and we can assist you to consider and document your eligibility.
  • Look out in particular for the long term casuals test. There are two test times:
    • 1 March 2020 being the date on which the employee has to meet the criteria; and
    • The JobKeeper fortnight where the employer must have paid the employee to be eligible for a claim in that fortnight.
  • As is the case now, employees who join a business after 1 March 2020 are not eligible and eligible employees must be a current employee in the relevant fortnight.
  • Stay tuned for more Cooper Partners alerts regarding the new eligibility tests that are set to apply from 28 September 2020.

WHERE WE CAN ASSIST YOU

If you would like to discuss any matters in this newsletter in further detail, please do not hesitate to contact your Cooper Partners Engagement Team.

This newsletter is current as of 22 July 2020, however, please note that announcements and changes are being made by the Government and the ATO regularly, and we expect that the tax and business-related responses will continue to evolve.  Before acting upon the content of this newsletter, please contact us to discuss how the above applies to your specific circumstances.

JOBKEEPER UPDATES AND ATO PUBLICATIONS

8 May  2020

The latest figures from Treasury show that  approximately 730,000 businesses have now enrolled for the JobKeeper scheme extending to approximately  4.7 million employees.

Professional, scientific and technical services are currently the largest industry group to register for JobKeeper, accounting for 14.7 per cent of total enrolments.  The construction industry group was next up, making up 14 per cent of all enrolments.

Only 51,000 employers enrolled come from the accommodation and food sectors, arguably one of the most impacted industries from the Coronavirus. We suspect this is an outcome of many of these business operators unable to find surplus funds to make the initial $1,500 fortnightly payments to employees before they are reimbursed by the JobKeeper payments.

This newsletter acts as a timely reminder to those employers who are claiming for the first two JobKeeper fortnights to ensure you not only have paid your employees the first two minimum $1,500 payment per fortnight since 30 March 2020 by today, 8 May 2020 but also have provided an employee nomination notice to each employee if you enrolled prior to 2 May 2020, in line with the latest legislative amendments which clarify the “one in, all in” feature. Failure to provide the notice to employees within 7 days of enrolling leaves employers liable for a penalty of $4,200 per instance.

Furthermore, where eligibility has been a key concern for many businesses, we cover in this newsletter the recent amended rules and ATO rulings that may help businesses better understand their eligibility position. 

AMENDED RULES FOR SPECIAL PURPOSE EMPLOYER ENTITIES 

THE ELIGIBILITY PROBLEM

Within certain business structures, it can be common to have a special purpose entity that provides the services of its employees to other members of the group.  One of the key requirements of the JobKeeper scheme is that the employer entity must be able to demonstrate a significant decline in its turnover.  In structures such as these however the employer entity does not typically have significant dealings outside the group and as such their turnover is unlikely to reflect the overall performance of the group.  As a result, even where there has been a significant decline in the turnover of the entities in the group, the JobKeeper payment may not be available to the employer entity in this scenario.

To address this issue, the Government has now released its latest legislative instrument providing a modified turnover test for these types of special purpose service entities.

Who will the modified test apply to?

The modified test will apply in the following circumstances:

  • The employer entity must be a member of a consolidated group, consolidatable group (corporate groups that are eligible to consolidate but have not done so) or a GST group. 
  • The operating entities of the group carry on the business of deriving revenue from unrelated third parties.
  • The employer entity cannot be an operating entity of the group.
  • The employer entity must only provide the services of its employees to other members of the group. Incidental services to third parties or members outside the group are allowable.
  • The provision of employee labour services (i.e. the performance of work by individuals the employer entity employs) must be the employer entity’s principal activity.
  • The Commissioner has not determined that the modified decline in turnover test does not apply to the employer entity.

Common ownership paramount

In order to apply the modified test, the employer entity must be part of either a wholly owned group (i.e. 100%) or there must be 90% or more common ownership amongst the group members.

Can you form a GST group now?  Caution advised!

The modified test does not contain provisions regarding the timing of when an election to form a GST group is made, however it is expected that the legislation is intended to apply to those GST groups currently in existence. 

Groups that are considering making an election to form a GST group now with the intent of accessing the JobKeeper, are strongly advised to consider the application of anti-avoidance provision (Section 19) of the Coronavirus Economic Response Package (Payments and Benefits) Act 2020.  Where an election is made now, entities should ensure that their reasoning for choosing this option is sound and not for the purposes of accessing the JobKeeper payment only.  Evidence supporting this reasoning should be maintained.

Where does this leave service trusts?

Limiting the measure to grouped entities for the purposes of consolidation and GST, means that many common service trust arrangements, which are typically not structured through wholly owned corporate structures, but rather as unit trusts, often with multiple unitholders, will not have access to these measures.

Given this, we anticipate that many professionals using service trusts arrangements will not be able to use the modified basic test and where they cannot meet the basic test or any of the alternative tests these entities may still not qualify for the JobKeeper payments.

Reduction to management fees by service entities

When considering whether the basic test or the alternative tests apply (i.e. where the modified test will not apply), service entities should be mindful about the reduction of service fees charged to other related parties and the impact this has on their turnover.  This matter has been specifically identified by the ATO as a risk area (see below for further discussion on the ATO’s PCG regarding schemes to access the JobKeeper payments).  

It is noted that the ATO will generally regard a situation where a service entity satisfies the decline in turnover test itself, as a result of reducing its service or management fees as low risk, where the reduction in fees is in response to a relative decline in turnover of the related parties to whom it provides services. This is regardless of whether the service fee reduction is a consequence of a reduction in employee working hours or not. However the key point is that any such reduction in management fees must be solely a result of a reduction in turnover or operations due to external factors that is beyond the group’s control.  If this is the case, there is a low risk of compliance resources being applied.

Modification of the basic test

The basic test is modified by using the combined GST turnovers for each group member using the services of the employer entity.

This ensures that the decline in turnover test is applied to those group members that predominantly carry on business with third parties rather than measuring the decline in intragroup transactions.

The modification to the basic test also allows for circumstances in which the alternative decline in turnover tests may be applied to other members of the group because there is not an appropriate 2019 comparison period.

Commissioner can prevent access to the test

To maintain the integrity of the system and prevent misuse of the modified test, the Commissioner will have the power to prevent access to this test where the Commissioner has material compliance or integrity concerns with an entity’s use of the test.

Principal vs incidental activities

Whilst the supply of employee labour services to the group must be the employer entity’s main or predominant activity, the employer entity may provide other services to the group or to third parties as long as these activities are considered to be incidental.

These terms are not specifically defined in the legislation and it is expected further guidance from the ATO will be required.

It is expected that those service entities that carry out a variety of activities will have greater risk exposure that the Commissioner may disallow access to the modified test.

Employer entities that carry out additional activities (i.e. leasing) should consider this issue carefully when determining if the modified test applies, as well as ensuring that contemporaneous documentation supporting their principal purpose (i.e. service agreements) is gathered and maintained.

ATO RESPONSE

In addition to the release of legislative amendment to the JobKeeper rules, the ATO have also published two major pieces of guidance regarding the administration of the JobKeeper Scheme, being LCR 2020/1 and PCG 2020/4.  The publications are intended to supplement guidance already provided by the ATO on its JobKeeper website.

The guidance has no doubt been released in response to the practical difficulties that have arisen in applying the JobKeeper rules.  The following is a summary of the key points from these ATO publications.

JobKeeper GST Turnover Test

Law Companion Ruling (LCR 2020/1): ‘JobKeeper payment-decline in turnover test’ provides the Commissioner’s view of how the JobKeeper decline in turnover test is applied, as well as providing some practical guidance and alternative options on how to measure GST turnover for the decline in turnover test.

The ruling seeks to provide clarity on three key areas of the decline in turnover basic test, being:

  1. what supplies are relevant when calculating projected GST turnover and current GST turnover;
  2. how supplies are allocated to relevant periods; and
  3. how to determine the value of each supply that has been allocated to a relevant period.

Whilst the LCR does not provide specific guidance on the alternative tests, it is expected that entities can apply the principles considered in the ruling to these tests.

Compliance approach available

In recognition of the difficulty that some entities may have in linking amounts received or invoiced based strictly on the time a supply is made or likely to be made, the ruling sets out the alternative methods that can be used as a proxy for determining the value of supplies were made or likely to be made in a relevant period, particularly as assessing turnover based on the timing of when a supply is made, is not a usual consideration for working out say GST liabilities which are based on either invoicing or cash receipts, or reporting for accounting and tax purposes.  It is also further complicated when a supply may be made over a period of time, such as when services are performed, or in itself could consist of more than one supply. This may therefore impose a significant compliance burden on businesses.

As such, the Commissioner will also accept turnover as assessed under the following alternative methodologies:

  • accrual method of accounting;
  • GST attribution basis; or
  • Income tax accounting (if not registered for GST).

Predicting turnover

Where projected GST turnover is based on the supplies that an entity is likely to make in a turnover test period, the Commissioner requires that reasonable determinations are made and are based on contemporaneous and bona fide business plans, budget or forecasts and / or projected facts and circumstances. This evidence must be in existence at the time you calculate your projected turnover.

Tolerance but ensure contemporaneous evidence is kept

Whilst significant variations in projected turnover and what actually eventuates will most likely be investigated by the ATO, getting predicted turnover wrong won’t necessarily mean that access to the JobKeeper scheme will be lost as long as an entity can evidence that its projected turnover was reasonable at that point in time.  Maintaining records to support your projections will be critical in this regard, including explaining how you undertook the projection calculations.

Evidence to support projections that supplies have or will decline due to COVID-19 could include:

  • Application of government COVID-19 restrictions such as being required to close or pause business.
  • Delays in receiving trading stock.
  • Consequential impacts on the value of products you supply.
  • Cancellation or significant variation to existing contracts for supplies.
  • Heavy reliance on industry significantly impacted by the COVID restrictions and closures.

Margin schemes -disparity between GST reporting and turnover testing

As anticipated, it has been clarified that suppliers of property using the margin scheme approach will need to include the full value of the property not just the margin when calculating turnover for the purposes of the JobKeeper tests.

Work in Progress

Where a supply is made but not yet billed, an assessment of the value can be made based on an objective assessment of normal business practice and experience, for example, assessing the usual recoverability of WIP. However, once the value has been determined, any other events which may happen after the relevant period and change value cannot be considered.

Timing of adjustments – Discounts, refunds, and bad debts

The ATO has acknowledged that the original value of a supply can fluctuate due to later events.  For example, where refunds are given, discounts are provided, debts are settled, or deposits are forfeited.  Given the practical difficulties in valuing these fluctuations, the ATO has provided the following guidance:

  • Adjustment events that change the value of supplies and occur in the relevant period are included in turnover only if they relate to the value of supplies you have already allocated to that period.
  • Those adjustment events that relate to supplies made in another period are not relevant and should be excluded from your turnover calculation.
  • Writing off debt as bad will not affect its value for testing purposes.

Cash or accruals?  Consistency is a must

The JobKeeper rules allow flexibility in the way in which entities can calculate their turnover, however the ATO have made it clear that it is their expectation that an entity will use the GST accounting method that is normally used by them.

An entity may choose to apply an alternative method of calculating its turnover from the manner in which it reports in its BAS, and this will be acceptable where it is consistently applied for across the relevant testing period.  These entities should ensure that their rationale for adopting a different approach is evidenced and well supported, in light of the integrity provisions that will apply.

The LCR clearly states that large taxpayers seeking to utilise a cash approach are forewarned that the ATO will take particular interest in their reasoning for such a choice.  Similarly, taxpayers that choose to apply the attribution method as an alternative approach whilst delaying the issue of invoices or allowing delays in payment will come under particular scrutiny from the ATO.

Whatever method is used for calculating turnover must continue to be applied for all subsequent JobKeeper reporting to the ATO.

INTEGRITY PROVISIONS

Under the original legislation giving effect to the JobKeeper Scheme, the Commissioner was given powers to determine that an entity was never entitled to a payment and to recover the amount if the Commissioner is satisfied that the entity had carried out a contrived scheme for the sole and dominant purpose of obtaining the payment.

With regard to this specific integrity provision, the ATO has now released its Practical Compliance Guideline (PGC 2020/4), which sets out the ATO’s compliance focus regarding schemes devised to access or increase JobKeeper payments.

Of particular concern to the Commissioner will be those entities that access the JobKeeper scheme but have NOT been significantly affected by external environmental factors beyond its control.  Whilst the PCG does not specifically state that COVID-19 needs to be the cause of a business’s decline in turnover, and this consistent with statements made on the ATO website, entities should be aware that the intent of the JobKeeper scheme, as stated in the original legislation is to provide financial support to those entities directly or indirectly affected by the Coronavirus and as such, caution should be exercised by those entities wishing to access the scheme legitimately but where reductions in turnover are not as a result of COVID-19.

The PCG sets out a number of examples of scenarios that will attract the ATO’s attention, including those arrangements that technically satisfy the eligibility requirements, but have been implemented for the sole or dominant purpose of accessing a JobKeeper payment.  The examples include where a company chooses to defer the making of supplies or where a parent entity within a group manipulates the timing or reduces management fees. The examples typically also refer to reductions in turnover that has been affected by COVID-19, albeit that this is not a legislative requirement as such.

Whilst the ATO’s examples are categorised as high and low risk scenarios, entities should not rely on these examples as a safe harbour and should be satisfied that their processes and reasoning for accessing the JobKeeper payments are sound and justifiable.  Entities should also ensure that they have considered their position and how the rules apply to their circumstances as well as considering any potential risk that the ATO may take the alternate position that their eligibility to the scheme does not exist.

JOBKEEPER DISPUTES AND EMPLOYMENT LAW

The JobKeeper scheme and COVID-19 in general has thrown up a number of employment related issues and many employers are experiencing difficulties in understanding their rights and the rights of their employees.  We encourage those entities that are experiencing uncertainty  about workplace entitlements and obligations in relation to the JobKeeper Payment scheme seek employment law advice.

Alternatively, it is noted that the Fair Work Commission has released guidance on how it can assist affected parties dealing with disputes regarding the application of the JobKeeper Scheme.

WHERE WE CAN ASSIST YOU

  • We can assist in determining which alternative test best applies to your circumstance.
     
  • We can assist with assessing eligibility for the JobKeeper Payment, including cashflow forecasting and preparation of the entire program application.
     
  • We can conduct independent reviews on the first round of reporting and claims to ensure accurate and within the Rules of eligibility.

This newsletter is current as of 8 May 2020, however, please note that announcements and changes are being made by the Government and the ATO regularly, and we expect that the tax and business-related responses will continue to evolve. 

Please contact us to discuss. Cooper Partners is committed to providing general advice to our clients at no charge as part of our commitment to assist you through this period.

AN UPDATE – JOBKEEPER PAYMENT SCHEME – Extension of Time to Enrol

28 April 2020

AMENDMENTS TO THE JOBKEEPER SCHEME

It was another busy week of updates to the JobKeeper Scheme with Treasury announcing on Friday a number of changes and the ATO updating its time frame around enrolment and payment for the first JobKeeper payments over the weekend. For everything you need to know about these changes please see below.

EXTENSION OF TIME

The Commissioner has now announced an extension of time for those employers wanting to participate in the first two fortnights of the JobKeeper Scheme.  These fortnights ran from 30 March to 12 April, and 13 April to 26 April, and enrolment and payment were previously required by April 30 in order to receive payments for these fortnights.

The ATO has now provided both an extension of time to enrol and pay, with employers now having until 31 May to enrol however it is critical that employee payments for the first two fortnights are made by 8 May.  Employers have the option of making two fortnightly payments of at least $1,500 per fortnight, or a combined payment of at least $3,000 by this date to be eligible.

The extension of time will not affect those entities that have already enrolled and have paid their eligible employees at least $1,500 per fortnight, with the ATO reimbursing these entities from next week. This extension of time recognises that the ATO are still issuing guidance as to the application of the Rules which impacts employers’ own assessments of their eligibility.

POLICY CHANGES TO THE JOBKEEPER PAYMENT 

The Government has announced further changes to the operation of the JobKeeper rules.  Here’s what we know so far:

Special purpose employment entities

In response to extensive industry lobbying, an additional alternative decline in turnover test will be provided where an employment entity or special purpose service entity is utilised within a group of companies to employ staff, and that employment entity is unable to demonstrate a decline in its own turnover.

The alternative test will be by reference to the combined GST turnovers of the related entities using the services of the employer entity. The related entities must carry on a business deriving revenue from unrelated parties.

This is a very welcome change and it is pleasing to see that Government has responded to industry concerns around what is a common business structure, which otherwise risked being excluded from eligibility to the scheme.

‘One in, all in’ principle to be strengthened

The existing JobKeeper Rules provide that all eligible employees that agree to be nominated by a participating employer must participate in the scheme.  This includes all eligible employees who are undertaking work for the employer or have been stood down.

It is understood that the rules will be amended to strengthen the ‘one in, all in’ principle that an employer cannot choose which eligible employees will participate in the scheme. This likely follows various concerns from unions about the perception that some employers might pick and choose amongst eligible employees, or otherwise use the scheme to pressure employees to change their employment conditions.

Prospective ineligibility for full time students aged 16 and 17 years old

Under the current rules, 16 and 17-year-old students that work as casual employees are eligible for the payment.  The rules will be amended so that full time students who are 17 years old and younger, and who are not financially independent, will not be eligible for JobKeeper payments. 

This clarification will apply prospectively, so that eligible employers that have already met the wage condition of paying such an employee $1,500 for a fortnight could still be entitled to a JobKeeper for that fortnight.

Employers will need to consider how they can satisfy themselves that any 16 and 17 year old employees, being a typical profile for casual employees, are financially dependent or not.

Other policy changes

Charities: Those ACNC registered employing charities in receipt of funding from the government can elect to exclude this funding when applying the 15 per cent turnover test.

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.  As was the case previously, employees must be Australian residents to be eligible under the JobKeeper program.

Universities:  Changes will clarify that the core Commonwealth Government financial assistance provided to universities will be included in the JobKeeper turnover tests. 

Religious practitioners: Changes will allow JobKeeper Payments to be made to religious institutions in respect of religious practitioners (with the exception of those that are students only), recognising that many religious practitioners are not ‘employees’ of their religious institutions.

EXPLORATION COMPANIES still left out

Despite industry lobbying, junior mining and exploration companies and those entities with no form of revenue have not been offered an alternative means of testing a decline in turnover and as such cannot satisfy the turnover test needed to access support under the JobKeeper Scheme. There maybe circumstances where such entities could be eligible but they are likely to be limited given that such companies generally have minimal GST turnover.

BRIDGING FINANCE

Following feedback from businesses that employers were experiencing delays and roadblocks with their financiers in the process of applying for finance to assist in meeting early JobKeeper payments, particularly after Treasury and the ATO had openly encouraged businesses to consider accessing the $250,000 loans being made available to SMEs in order to fund the required payments to employees,  Australia’s Big Four banks and the Government will create a hotline to assist businesses who need finance to bridge the gap until the first JobKeeper payments are made. The banks have also agreed to bring JobKeeper-related applications to the front of the queue and work with the ATO (to confirm an employer’s notification of entitlement for the JobKeeper Payment) to accelerate the finance assessment process.

WHERE WE CAN ASSIST YOU

  • We can assist in determining which alternative test best applies to your circumstance.
     
  • We can assist with assessing eligibility for the JobKeeper Payment, including cashflow forecasting and preparation of the entire program application.
     
  • We can conduct independent reviews on the first round of reporting and claims to ensure accurate and within the Rules of eligibility.

This newsletter is current as of 28 April 2020, however, please note that announcements and changes are being made by the Government and the ATO regularly, and we expect that the tax and business-related responses will continue to evolve.  Please contact us to discuss.

Cooper Partners is committed to providing general advice to our clients at no charge as part of our commitment to assist you through this period.

WEBINAR RECORDING: Unpacking the JobKeeper Program – Alternative Decline in Turnover Tests

Cooper Partners Webinar

Our recent webinar held on Tuesday 28 April 2020 runs through the latest on the JobKeeper Program.

The Government released the eagerly anticipated JobKeeper Alternative Decline in Turnover Tests late last week.  For many employers, the JobKeeper Payment scheme is a vital subsidy and the difference of being able to retain their workforce or not. 

With the release of this new legislative instrument, entire new classes of employers can possibly now qualify for JobKeeper.

In our webinar, we provided an update on this new development with practical examples as to how these new tests will apply.

  • Who can rely on the alternative tests?
  • Are you one of the 7 classes of entities to which the test can now apply?
  • How do the alternative tests work?
  • What are the new comparable periods of testing?
  • Has your industry been heard? We will look specifically at:
    • construction businesses;
    • corporate and business restructures;
    • start-ups;
    • growing businesses;
    • farming; and
    • junior explorers.
  • If your circumstance isn’t covered, is there any ability to ask for the Commissioner’s discretion?

If you are in the Cooper Partners network and would like to watch this webinar, please click here to register.

This webinar is current as of 28 April 2020, however, please note that announcements and changes are being made by the Government and the ATO regularly, and we expect that the tax and business-related responses will continue to evolve.  Please contact us to discuss.

Alternative Turnover Test Rules Released

The eagerly anticipated alternative decline in turnover test rules for the JobKeeper payment scheme was registered yesterday on Thursday 23 April 2020.

As you know, in order to be eligible for the JobKeeper Payment, businesses must have suffered a substantial decline in their turnover. The JobKeeper Rules require a basic test for assessing this decline as well as provision for the Commissioner to provide an alternative test. The Rules and legislative instrument for these alternative tests were released yesterday and have effect from today.

By way of background, the basic test requires an entity to measure its projected GST turnover and compare this to its actual GST turnover in a relevant comparison period in 2019. The Alternative Test Rules provide an alternative avenue for those businesses that are not able to apply the basic test because of their circumstances, or who fail the basic test, due to certain unusual events that impact turnover.

For those entities currently unable to satisfy the decline in turnover test under the basic test, here’s what you need to know.

SPECIFIC APPLICATION

The Rules set out the specific circumstances to which the alternative tests may be applied.

Broadly, the alternative tests will exclusively apply to those businesses in which there was either no relevant comparison period or where the relevant comparison period is not appropriate in light of their business’ circumstances.

WHO WILL THE ALTERNATIVE TESTS APPLY TO?

The class of entities to which the alternative tests may apply are:

  1. Those entities that commenced business after the relevant comparison period from March 2019 onwards or whose business did not exist in the relevant comparison period. This is to cater for start-up businesses where there isn’t a 12-month comparison available.
     
  2. Those entities that carried out business acquisitions and disposals after the relevant comparison period in 2019. This is to compensate distorted turnover due to different businesses being operated between periods.
     
  3. Those entities that carried out business restructuring after the relevant comparison period in 2019.
     
  4. Those entities that experienced significant growth in the periods prior to the applicable turnover test period. This is in recognition to where of a business may have been in a growth phase in the lead up to the impact of COVID-19 disruption and as a consequence the future turnover will be heavily impacted as to where they were tracking.
     
  5. Those entities affected by drought or natural disasters.
     
  6. Those entities with irregular turnover. This typically applies to the construction industry where turnover is based on the stage of completion of the projects.
     
  7. Sole traders and partners affected by sickness or injury.

For each of the above class of entities, the Rules set out the alternative tests that an entity may apply in order to assess whether a decline in turnover has occurred.

WHAT ENTITIES CAN’T APPLY THE ALTERNATIVE TESTS?

  • Those entities in which a relevant and appropriate comparison period exists.That is to say, the alternative tests do not provide an additional option for assessing eligibility, where say a business fails to meet the requisite decline in turnover using relevant and appropriate comparison period as part of the basic test, and none of the specific business circumstances of the alternative tests apply.
     
  • Those entities that have zero turnover* (ie. junior explorers and miners).
     
  • Those entities that ordinarily make input tax supplies* (i.e. those businesses selling or renting existing residential premises).

* These entities will not be able to access the alternative tests on the basis that the circumstances in which they cannot demonstrate a decline in turnover are not outside the usual business setting for these types of businesses.

We note that certain industries affected by these exclusions continue to lobby the Commissioner and additional guidance may be released.

HOW ARE THE ALTERNATIVE TESTS APPLIED?

If a business satisfies the alternative test, there is no requirement that they make any submission to the ATO to request discretion to apply the alternative test in favour of the basic test.

The instrument does not allow any ability to apply for discretion on an individual entity basis, and the ATO website has been updated to state that the Commissioner cannot make discretionary decisions for individual entities.

It has also been made clear that an entity need only satisfy either the basic test, or any of the alternative tests, in order to demonstrate the relevant decline in turnover and be eligible to qualify for the JobKeeper payment. If an entity has satisfied the basic test, an alternative test would not make them ineligible if it could otherwise have applied to the business and they may have failed that alternative test. If more than one alternative test could apply to a business, they can choose which test to apply.

For each of the circumstances outlined in the Rules, there are accompanying alternative tests that must be applied.

The tests are effectively self-assessed using the methodology outlined under each test.

EXAMPLES
Business commenced after relevant comparison period.

ABC Pty Ltd commenced trading on 1 October 2019. As a result of the COVID-19 shut down laws, sales declined substantially from March 2020.

ABC Pty Ltd would like to assess its eligibility for JobKeeper payments in April 2020 based on a projected GST turnover for April 2020, however as ABC Pty Ltd did not begin to carry on a business until 1 October 2019, there is no corresponding period in 2019 that applies.

Application of the Alternative test

ABC Pty Ltd has the choice of applying two alternative tests:

  • The first test compares ABC Pty Ltd’s projected turnover in April 2020 with its average turnover since 1 October 2019.
  • The second test compares ABC Pty Ltd’s projected turnover in April 2020 with the average turnover of the 3 months immediately before April 2020 (i.e. January, February and March 2020).

ABC Pty Ltd is only required to satisfy one of the above tests.

Business acquisition

As a result of the COVID-9 pandemic, XYZ Pty Ltd would like to consider its eligibility for the JobKeeper payments, however as a result of acquiring a business in November 2019, the company has undergone a substantial change in its usual business operations and as such, the relevant comparison period is not considered to be appropriate when assessing its current decline in turnover.

Application of the Alternative test

The alternative test allows XYZ Pty Ltd to compare its projected turnover for the applicable test period with its turnover for the month after the month in which the acquisition occurred.

Therefore, when assessing its decline in turnover, XYZ Pty Ltd compares its projected turnover in April 2020 to its turnover in in December 2019 (being the month after the business acquisition occurred).

THOSE INDUSTRIES OVERLOOKED

The Commissioner does make mention that he undertook targeted consultation with industry groups and business representatives. Although suggested amendments were taken on board, not all recommendations were adopted, or otherwise addressed.

We anticipate the following entities will still struggle to satisfy eligibility.

  • Centralised employer entities that are separate to operational entities within the same group commonly implemented within large corporates in construction, retail property management services and hospitality service provider industries.
     
  • Input tax supplied businesses such as residential leasing businesses, residential living and retirement care facilities.
     
  • Junior exploration companies that typically do not have taxable GST turnover.

MORE TO COME

We will continue to monitor the ATO and treasury sites for additional guidance and provide you with updates as this information comes to hand.

WHERE WE CAN ASSIST YOU

  • We can assist in determining which alternative test best applies to your circumstance.
  • We can assist with assessing eligibility for the JobKeeper Payment, including cashflow forecasting and preparation of the entire program application.
  • We can conduct independent reviews on the first round of reporting and claims to ensure accurate and within the Rules of eligibility.

This newsletter is current as of 24 April 2020, however, please note that announcements and changes are being made by the Government and the ATO regularly, and we expect that the tax and business-related responses will continue to evolve.  Please contact us to discuss.

Please contact us to discuss. Cooper Partners is committed to providing general advice to our clients at no charge as part of our commitment to assist you through this period.

WA State Government Unveils Leasing Codes

We alert you to the long-awaited release as of 16 April 2020 of the Western Australian Codes of leasing currently in front of Parliament waiting to be passed.

Since the National Cabinet announced the Mandatory Code of Conduct on 7 April 2020 for commercial tenancies, each State government has been working on designing their framework for implementation of the guidelines in the Code as it will apply to that State.

We expect that negotiations between WA landlords and tenants will be accelerated now that both parties have more clarification.

It is timely to remind both parties that the aim of the legislation is to help small and medium-sized enterprises that are in financial distress due to the impacts of the
Covid-19 disruption to survive the current restrictions.

The Codes only apply to eligible small and mid-market businesses and investors. The definition of eligibility is businesses that generate up to $50M in revenues and have had at least a 30% reduction in revenue as a result of COVID-19. Refer to our newsletter of 4 April 2020 which outlines the detail of the Mandatory Code of Conduct.  

However, we are witnessing a growing trend of what appears to be non-eligible tenants and large corporation tenants who questionably have not been impacted significantly by the current pandemic requesting non proportionate rent waivers and for some the audacious act of merely not paying any rent at all.

With the changes implemented it is certainly the case that the business risk of the tenant has effectively been passed on to the landlord.

We envisage that application of the new WA leasing Codes will raise a myriad of other issues and coming to a timely resolution will heavily rely on both parties adopting the overarching principle of negotiating in “good faith” as required under the National Code of Conduct.

We provide below a summary of the main factors presented in the new WA Code of Conduct Bills as it relates to commercial tenancies together with some of our practical insights.

Note: the below information is not effective until the legislation has been passed.

COMMERCIAL TENANCIES

The Commercial Tenancies (COVID-19 Response) Bill 2020 will introduce the following measures with effect during the emergency period of 30 March 2020 to 29 September 2020:

  • six month moratorium on evictions due to non-payment of rent
     
  • freeze on rent increases
    • will this be a forfeiture of rent reviews or merely deferrals?
    • if deferral, can rent reviews be applied retrospectively?
    • if rent reviews are applied retrospectively, how will the tenant ever recover?
    • how will existing lease incentives impact waivers and deferrals?
    • any freeze does not apply to rent determined by reference to turnover under a small commercial lease.
       
  • an extension of term
    • tenants will be given an opportunity to extend the terms of the lease by the waiver period and/or by the deferral period.
    • will this extension impact any plans to redevelop by the landlord?
    • with regards to leases with less than 24 months to their current expiry date, will this result in any tenant deferral needing an extended bank guarantee for security beyond the lease expiry date?
    • will any extension of the lease term trigger a requirement to obtain FIRB approval considering the recent changes reducing the thresholds of value to zero?
       
  • passing on of state tax reductions to the tenant
    • many lease agreements effectively cater for this already.
    • landlords will need to be careful to not overcharge outgoing recoveries and exclude such taxes where they have been reduced or waived to the landlord.
    • there has been no mention of land tax relief for WA as of 19 April 2020.
       
  • numerous restrictions on penalties for tenants who do not trade or have reduced their trading hours;
    • landlords are encouraged to waive outgoings for the period a tenant is unable to trade.
    • where outgoings commonly represent around 30% of rent, landlords still have obligations such as maintenance and insurance to cover.
       
  • a prohibition on charging interest on rent arrears;
     
  • the introduction of a dispute resolution process;
    • if the parties cannot agree on the rent relief.
    • fast tracking and free.
       
  • an ability for government to prescribe a code of conduct.
Summary of State relief for commercial tenants
Take away actions:
  • There is an obligation for both parties to negotiate in good faith.
     
  • Tenants to continue to comply with the lease until a negotiated agreement is reached under the Code. If the tenant breaches any material term of the lease as amended, then the tenant will lose the protection of the Code.
     
  • Clearly document any negotiations and new arrangements so you have a clear record that will pass the test of examination and evidence of discussions.
     
  • Both parties to provide each other sufficient and accurate information. Act honestly.
     
  • Each lease negotiation will be conducted on a business case basis. All factors should be considered such as industry profiles, eligibility of a tenant for the JobKeeper payment scheme and whether a tenant is already in arrears.

RESIDENTIAL TENANCIES

The WA Government has also introduced draft legislation to cover residential tenancies to address the financial impacts of the COVID-19 coronavirus.

The proposed Residential Tenancies (COVID-19 Response) Bill 2020 will:

  • give powers to The Commissioner for Consumer Protection to make the conciliation of disputes between landlords and tenants mandatory.
     
  • introduce a moratorium on eviction for six months except in limited circumstances including where:
    • a tenant is causing damage to the property;
    • a tenant is causing injury to the landlord or a person in neighbouring premises;
    • the landlord or tenant is experiencing undue hardship;
    • a tenant is experiencing family violence and the perpetrator needs to be evicted;
    • the tenant abandons the premises; or
    • the tenancy agreement is frustrated.
       
  • prohibit rent increases during the emergency period between 30 March 2020 and 29 September 2020;
    • tenants must continue to pay rent.
    • if a tenant can’t pay their rent they will still have the obligation to pay any rent outstanding later.
    • if any notice has already been given for an increase in rent, for a start date which was to occur in the emergency period, the rent increase is deemed to start from 30 September 2020.
       
  • provide that any fixed term tenancy agreement due to expire during the emergency period will continue as a periodic agreement;
     
  • relieve lessors of the obligation to conduct ordinary repairs if the reason they cannot do so is COVID-19 related financial hardship or a lawful restriction on movement;
     
  • enable a tenant to end a fixed term tenancy prior to its end date without incurring break lease fees (tenants will still be liable for damage and rent arrears).

The proposed changes will apply to:

  • residential tenancies agreements under the Residential Tenancies Act 1987 (WA),
     
  • long-stay agreements under the Residential Parks (Long-stay Tenants) Act 2006 (WA); and boarders and lodgers, and
     
  • all public housing tenancies and government employee housing provided by the Housing Authority.

The WA State Government has outlined in its guidelines that renters are not required to provide their landlord with a proof of their savings or lack thereof, and that a letter from a former employer should be sufficient to prove financial hardship.

WHERE WE CAN ASSIST YOU

During these difficult times, our expert team is ready to assist you:

  • We can introduce you to specialist property lawyers to help you in your negotiations whether as a landlord or tenant.
     
  • We can review financial records submitted by either party to substantiate evidence of financial hardship and impact from COVID-19 disruption.
     
  • Review and advise on eligibility of the JobKeeper Payment Scheme.

This newsletter is current as of 19 April 2020, however, please note that announcements and changes are being made by the Government and the ATO regularly, and we expect that the tax and business-related responses will continue to evolve. Please contact us to discuss.

WEBINAR RECORDING: Unpacking the JobKeeper Payment Program

Cooper Partners Webinar

Our latest webinar, held Tuesday 14th April 2020, had a look at the latest with the JobKeeper Payment Program.

The Government has released further details last week regarding the JobKeeper Payment measures.  For many employers it is a vital subsidy and the difference of being able to retain their workforce.

There has been some significant developments since we first discussed this scheme in our webinar on 31 March 2020 and as expected, you had plenty of new questions for us.

We provided an update on the JobKeeper scheme first, explained with practical insights, including:

  • Who qualifies – turnover and turnover drop year on year?
  • What periods can you use to measure turnover drop? 
  • How do you measure turnover?
  • For which employees can employers claim the subsidy?
  • What and when must employers pay employees?
  • How is the subsidy payable and administered? 
  • Unpaid family members of owner managed businesses – who can participate?
  • Sole traders – how do they qualify?

We also answered your hard-hitting questions and provided our insight on this tricky new area.

If you are in the Cooper Partners network and would like to watch this webinar, please click here to register.

This webinar is current as of 14 April 2020, however, please note that announcements and changes are being made by the Government and the ATO regularly, and we expect that the tax and business-related responses will continue to evolve.  Please contact us to discuss.

Unpacking the JobKeeper Payment Rules

Federal Parliament has now passed laws giving effect to the Morrison Government’s historic $130 billion wage subsidy scheme, which will deliver fortnightly payments of $1,500 to an estimated six million workers affected by the COVID-19 pandemic. 

The package passed both houses of parliament with Labor support, after the Coalition rebuffed calls to expand eligibility to one million short-term casuals and to temporary visa workers.

LATEST DEVELOPMENTS

Late Thursday night, we saw the release of the actual statutory Rules setting out the eligibility criteria and reporting obligations to be administered by the Commissioner of Tax. 

Our initial review of the Rules is that the guidelines as to eligibility generally remain consistent with the details as outlined in our earlier update of 7 April 2020. However, the Rules now introduce the level of detail that an employer must consider in determining their eligibility, and the practical processes that they will need to undertake in order to receive the payments.

The Rules impose arduous obligations and strict timeframes in which to comply, and we anticipate that this will pose an administrative burden onto some employers, who will need to ensure they have robust systems in place, in order to meet the reporting and documentation requirements on a timely basis.

EMPLOYER ACTION POINTS

Given the highly compressed timeframe toward the finalisation of the Rules and the ATO registration process, in order to receive the first JobKeeper payment employers need to:

EMPLOYEE ACTION POINTS

An employee must provide their employer with written notification confirming that they meet the eligibility requirements at 1 March 2020 and that they agree to participate in the scheme.

Eligible casuals must also attest that they are not claiming the JobKeeper payment in respect of any other employer.

Australians returning home or employees seconded to Australia may not qualify

To be eligible, an employee must generally reside in Australia and be an Australian citizen or permanent visa holder, i.e. Australian residents for tax purposes. As such, employees that are non-residents or temporary residents for Australian tax purposes will not be eligible for the payments.

It should be noted however, that certain special protected visa holders (limited) and New Zealanders who are in Australia on a subclass 444 visa, who are Australian tax residents will also be eligible.

Eligibility is also open to those Australian employees temporarily working overseas for an Australian based business if they still permanently reside in Australia and qualify as an Australian tax resident.

Contractor or employee? The distinction continues to be important

The JobKeeper payments will only apply to those individuals considered to be employees, rather than contractors. The distinction between independent contractor and employee will continue to be an important factor in the working relationship. Contractors who are sole traders may be able to claim JobKeeper under the business participation provisions.

FURTHER DEVELOPMENTS IN THE RULES

What will be the administrative load?

Employers will need to notify the Commissioner prior to the end of every fortnight that they wish to receive the JobKeeper payments. It appears that the payroll software service providers are amending their systems to assist in this regard. But it will entail prompt training of your in-house payroll officers so they are abreast of this new law so they can accurately monitor the program correctly.

For those businesses operating in Government forced shut down industries such as retail and hospitality, this onerous obligation combined with the upfront funding of employee wages will likely act as a deterrent to proceed with participation in the scheme. Where such businesses do not anticipate sufficient future cash inflows, due consideration will need to be given to the nature and the extent of future revenue derived by these impacted businesses.

Standalone eligible entities will need to consider and establish the appropriate basis for reporting their projected turnover by:

  • preparing robust cashflow projections;
  • identifying the correct methodology for determining turnover; and
  • thoroughly documenting your position to support your claims.
Turnover test only on entry

It has now been made clear by the Rules that the decline in turnover test will be a single satisfaction test on entry into the scheme.

Businesses will be required to ascertain the appropriate turnover methodology to project their future revenue to substantiate their best guess of forecasted decline in revenue at the point of entry.

For example, is the appropriate methodology for your business based on:

  • sales or services in pre-existing contracts or order?
  • agreed billing timeframes? or
  • work in progress or contracts of service?

Notably you are required to make a reasonable prediction and only need to demonstrate that you will satisfy the decline in turnover once. It won’t necessarily mean that you will lose your entitlement retrospectively if you end up having a lesser turnover decline than originally forecasted. But the onus will be on you to show robust evidence and sound use of assumptions supporting your application at the time.

The Commissioner will expect that consideration has been given to the facts and circumstances of each business. It may well be that your business will have a delayed impact and comparing predicted April 2020 to actual April 2019 won’t suggest a decline in turnover.  Instead, you can consider your projected June 2020 quarter turnover to the actual turnover from the June 2019 quarter.

Ongoing turnover disclosures

Employers will then need to provide actual and projected GST turnover information to the Commissioner each month. Without suitable revenue reporting systems and timely processes in place, this requirement may prove onerous and likely result in some businesses opting out of the scheme.

It is worth noting ongoing reporting obligations will not be used to test eligibility or verify projections (as this is tested only once), and nor is it intended to verify the accuracy of projections made by entities. It is instead an information gathering exercise that will allow the government to assess the economic impact of the Coronavirus on a monthly basis across Australia.

Decline in turnover test a once only test but retesting available!

The Rules provide that the requisite decline in turnover is assessed and met for eligibility entering the scheme. However, those employers whose turnover has not yet been sufficiently affected, can test in later months to determine their eligibility.

Relief for commercial tenants is linked to the scheme

Whilst the above points highlight why some employers may choose to opt out of the scheme, those employers wishing to take advantage of the Government’s commercial rent relief measures need to be aware that the mandatory code of conduct for commercial tenancies applies to those tenants that are eligible for the JobKeeper Payment scheme and it is expected that these entities will need to demonstrate their eligibility to access the rent relief.

One in all in

The JobKeeper scheme requires an employer to actively seek to participate in the scheme, however an employer cannot pick and choose which eligible employees will participate in the scheme and all eligible employees that agree to nominate for the scheme, are in.

Employer opt out rights

Given the administrative burden and the likely initial cash flow implications, employers may be reluctant or simply not able to participate in the scheme.  Each employer will need to weigh up the financial and commercial factors at play when making this decision.

The JobKeeper scheme is not mandatory and employers are required to opt-in to the scheme. Currently, no obligation appears to exist under the JobKeeper Rules in which employers are required to inform current or recently stood down employees that they will not be participating in the scheme. 

Although an employer does not need to consult with or obtain the consent from its eligible employees under the scheme, if it chooses to not participate we strongly recommend that you obtain legal employment advice as to the implications under your relevant employment agreements and awards, particularly where you have stood employees down or modified their working arrangements under the new JobKeeper stand down provisions under the Fair Work Act.

Restructure relief is currently limited to employees

It appears the concession afforded to employees under which they will be deemed to have continuity of employment where the entity operating the business has changed recently, has not been extended to the turnover test.  In the absence of any further concession, those businesses that have recently undergone restructuring will not have the necessary comparative data to demonstrate satisfaction of the turnover test.  

We suspect this is an anomaly that we hope will be addressed. Perhaps these impacted entities can use the ‘alternative decline in turnover test’ where they have access to the previous owner’s financial records to satisfy this obligation.

Commissioner’s discretion may be limited

It is expected that there will be a range of entities that do not satisfy the turnover test and while the Rules provide for this by introducing an ‘alternative decline in turnover test’, this test will apply to classes of entities and not on a case by case basis.  Based on this, the Commissioner’s discretion in granting relief does not appear to extend to an entity’s particular facts and as such, be considerably narrower than previously set out by Treasury. 

The alternative tests are to be legislated and as such there is currently limited guidance on whether these measures will apply to businesses such as junior mining or exploration companies that do not yet have any business turnover, but that may still be affected by the economic fallout from COVID-19. The Explanatory Statement to the Rules provides some examples to which this alternative test could be applied, but it is currently a case of watch this space until this legislative guidance is released.

Do you need to revisit your centralised payroll functions?

The scheme proceeds on the basis that it is a particular entity, and not a group, which is entitled to a JobKeeper payment, and further, an entity can only be entitled to the JobKeeper payment if it is the employer of the particular individual. 

It is therefore anticipated that those groups that use a centralised employment entity to employ and pay staff on behalf of the other group entities may not meet the required decline in turnover test.

Flexibility in payment type but how will it be treated for tax?

Employers must assess fortnightly whether they have paid the requisite amount i.e. $1,500 pre-tax to each eligible employee. Amounts paid are not limited to salary and wages and may include commissions, bonus or allowances, amounts withheld by the employer for PAYG withholding purposes and amounts made under a salary sacrifice arrangement.  Where an employer’s regular pay cycle is monthly, the payments in that pay cycle must be allocated on a reasonable basis when applying this test.

Payments will be taxable income for the employee and as such the employer must withhold PAYG income tax.  At this stage, the WA State Government has not finalised its position on whether the payment will be subject to payroll tax and workers’ compensation insurance purposes.

Business participation

Further to our comments in Tuesday’s Update  7 April 2020 regarding unpaid owner managed and family employees, the Rules confirm that the JobKeeper payments will apply to such entities under the business participant provisions, but further clarifies that the following entities will not be eligible to receive the JobKeeper payments:

  • Unit trusts with non-individual unitholders such as family trusts; and
  • Companies with non-individual shareholders again such as family trusts.

In the latter case, these companies may be able to rely on the director provisions that allow for one director to receive the payment.

Such businesses are only entitled to receive the JobKeeper payment in relation to one nominated eligible participant.  Similarly, an individual can only create an entitlement for one entity and must not have been nominated by another employer. 

It is worth noting Treasury has inserted an integrity rule for business participants in the scheme that restricts the payments to participants of active businesses only.  We will be interested to watch out for further clarification by the Commissioner as to whether this will extend to all Landlord businesses. We will provide more details regarding this new measure in our updates to follow.

Overpayments and entitlement

The new law provides rules for overpayments, including the application of interest and the requirement to repay amounts, with joint and several liability rules also introduced, where for example an employee may have made a false or misleading statement to an employer.

Furthermore, the Rules make it clear that just because the Commissioner pays an entity a payment does not mean the entity is entitled to it, therefore ensuring the door to recovery is kept well open. It is expected that ATO audit activity will be increased over the coming periods to ensure compliance with the Rules.

No records – No payment

Employers are warned that pre-payment and post-payment record keeping requirements exist and must be met.  Where an employer does not keep the correct records for the required amount of time (5 years), they may be taken to be ineligible to receive the payments and will likely be required repay the amount plus interest.

Serious penalties for contrived schemes

The legislation also makes clear that anyone who enters or carries out a scheme for the sole or dominant purpose of obtaining a COVID-19 payment will face a wide range of administrative and criminal sanctions, including up to 10 years’ imprisonment.

CHANGES TO FAIR WORK ACT

To facilitate the introduction of the JobKeeper Payment program combined with the immediate need for many employers to manage their workforce obligations in these unprecedented times, changes have also been made to the Fair Work Act. These changes aim to provide employers with a level of flexibility over the coming 6 month period with a view to retaining their workforce for a longer term.

For those employers that are eligible and participate in the JobKeeper Payment program, they will be afforded protection within the Fair Work Act to modify the working arrangements of their employees over the 6 month period to which the JobKeeper program will operate, by enabling them to make Jobkeeper Stand Down Directions to their employees who are in receipt of JobKeeper payments.

In brief, an employer will have the ability to:

  • Modify the usual workdays of an employee to be less than normal.
  • Reduce the usual work hours of an employee.
  • Make temporary or partial stand down orders to an employee (no work at all).
  • Direct the employee to perform other duties or at a different location, where safe to do so.
  • Request an employee to take paid annual leave, so long as it does not reduce an employee’s accrued entitlements to less than 2 weeks.
  • Request an employee to take twice as much annual leave at half pay.

The employer must ensure that it is necessary to make the direction, in order to continue the employment of the employee(s) and must be reasonable in the circumstances.

The amendments require an employer to undertake a consultation process with the employee, and generally must provide notice in writing of at least 3 days to the employee and must maintain written record of such consultation.

In addition, the employer must ensure that wage conditions such as maintaining the same hourly base rate of pay applies, as if the direction had not been made.

An employee that is subject to a JobKeeper stand down direction, will still be entitled to accrue normal leave entitlements as if the direction had not been given, and any period under which a direction applies (including a formal stand down) continues to be counted as service.  It is noted that this may prove to be an added disincentive for certain impacted employers to take up the JobKeeper Scheme.

An employee subject to a direction, may request the employer the ability to engage in reasonable secondary employment, training or development, which the employer must similarly consider and not unreasonably refuse.

More information with regard to these changes is available at the Fair Work Ombudsman site.

WHERE WE CAN ASSIST YOU

  • We can assist with assessing eligibility for the JobKeeper Payment, including cashflow forecasting and preparation of the program application.
  • We can conduct independent reviews on the first round of reporting and claims to ensure accurate and within the Rules of eligibility.
  • We can prepare submissions to the Tax Commissioner to apply discretion regarding eligibility.

This newsletter is current as of 10 April 2020, however, please note that announcements and changes are being made by the Government and the ATO regularly, and we expect that the tax and business-related responses will continue to evolve.  Please contact us to discuss.

Please contact us to discuss. Cooper Partners is committed to providing general advice to our clients at no charge as part of our commitment to assist you through this period.