Date posted: 07/09/2020

Extension of JobKeeper legislation receives Royal Assent

The legislation implementing the extension of the JobKeeper payments has received Royal Assent on 3 September 2000.

In brief

  • JobKeeper amendment legislation extending the JobKeeper Scheme to 28 March 2021 is enacted

The Coronavirus Economic Response Package (Jobkeeper Payments) Amendment Bill 2020 (the Bill) has received Royal Assent on 3 September 2020.  

The Bill extends the current time limit on payment rules authorised by the Coronavirus Economic Response Package (Payments and Benefits) Act 2020so that the JobKeeper Scheme can be extended to 28 March 2021.

It also amends the tax secrecy provisions in the Taxation Administration Act 1953 to allow protected information relating to the JobKeeper scheme to be disclosed to an Australian government agency for the purposes of the administration of an Australian law. Such disclosures can only be made for a purpose relating to the coronavirus. 

To keep in line with the extended end date of the JobKeeper scheme, the Bill also amends the Fair Work Act 2009 (FWA) to extend the operation of the temporary flexibility provisions (excluding annual leave), which allow JobKeeper enabling directions or requests for employees to change their days or times of work, until 28 March 2021.

It also amends the FWA by creating two categories of employers who can access the flexibilities under the temporary JobKeeper provisions from 28 September 2020: 

  • employers who are eligible for JobKeeper payments after 28 September 2020 (qualifying employers), and 
  • employers who did receive one or more JobKeeper payments in the period prior to 28 September 2020, but no longer qualify for a payment after 28 September 2020 (legacy employers). 

Legacy employers who have a certificate from an independent eligible financial service provider stating they have experienced a 10% decline in turnover will have access to modified flexibility measures from 28 September 2020.

Small business employers (employs fewer than 15 employees) are exempted from obtaining the certificate. Instead, a small business employer may choose to have a statutory declaration to the effect that the employer satisfied the 10% decline in turnover test for the relevant quarter. As statutory declarations must be made by an individual, the legislation sets out that the declaration may be made by an individual who either is, or is authorised by, the employer, and who has knowledge of the financial affairs of the employer.

The 10% decline in turnover test (based on current GST turnover) requires that:

  • after commencement (i.e. 4 September 2020) and before 27 October 2020 (inclusive), a legacy employer must have a 10% decline in turnover certificate for the June 2020 quarter (April, May and 22 June 2020) compared to the June 2019 quarter
  • between 28 October 2020 and 27 February 2021(inclusive), a legacy employer must have a 10% decline in turnover certificate for the September 2020 quarter (July, August and September 2020) compared to the September 2019 quarter, and
  • between 28 February 2021 and 28 March 2021 (inclusive), a legacy employer must have a 10% decline in turnover certificate for the December 2020 quarter (October, November and December 2020) compared to the December 2019 quarter.

These dates align with the BAS lodgement dates for each quarter rather than the application of the decline in turnover test for the JobKeeper scheme because legacy employers are no longer part of the scheme.

Amendments to Bill

The Senate made amendments to the Bill. The amendments:

  • narrow the definition of 'eligible financial service provider' so that only a registered tax agent, BAS agent or a qualified accountant can issue a 10% decline in turnover certificate
  • make it clear that the issuing of the certificate involves a declaration from an eligible financial service provider that relates to a specific employer and confirms that the employer satisfied the 10% decline in turnover test for the relevant quarter. According to the supplementary explanatory memorandum, this requires the eligible financial service provider to confirm that the test has been met based on the information provided, and does not constitute an audit or assurance engagement. This is achieved by removing the word 'opinion' from the relevant provision in the Bill.

Action

Legacy employers wanting to retain access to the flexible working arrangements available under the FWA should talk to their registered tax agent, BAS agent or qualified accountant to determine whether they can satisfy the 10% decline in turnover test.

Bill details

Coronavirus Economic Response Package (Jobkeeper Payments) Amendment Bill 2020

Government media release

Government passes legislation through the Parliament to extend Jobkeeper payment.