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At this stage, no. The amendments to the Fair Work Act 2009 that permit an employer to make a JobKeeper enabling stand down direction are repealed when JobKeeper 1.0 ends (from 28 September 2020). After this time, any JobKeeper enabling direction will cease to have an effect.
There may be further amendments to the Fair Work Act to extend the current provisions, so this is an area we will continue to monitor and update members if and/or when any further changes to the Fair Work Act are announced.
If the employer ultimately qualifies for JobKeeper 2.0, it is likely the employee will also be an eligible employee in the above scenario. This employee is also likely to qualify for the current JobKeeper payment as the assessment date has recently moved from 1 March 2020 to 1 July 2020.
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There are two observations to make about this question. First that in order to qualify for and participate in JobKeeper 1.0 an employer must be eligible, have registered with the ATO and been accepted. In that case, the employer must have eligible and nominated employees that it is paying no less than $1,500 per fortnight. JobKeeper 1.0 only requires an employer to satisfy the relevant decline in turnover once during the scheme, irrespective of the nature of their turnover thereafter.
Accordingly, a participating employer remains in JobKeeper 1.0 until September 27 2020 and will receive the wage subsidy for all of its eligible employees that it pays $1,500 or more per fortnight during this period.
Second, in order to transition to JobKeeper 2.0 (commencing 28 September 2020) an employer must satisfy a fresh decline in turnover test. This test is broader than the prior test and is be based on a decline of actual GST turnover for the preceding three months, i.e. July, August, September 2020 compared with the same or a comparable period in 2019.
Nonetheless, the government has stressed that there will be a greater focus on actual numbers to evidence the decline of turnover. At the end of the first 3 months of JobKeeper 2.0 those wishing to transition to final 3 months must satisfy another decline in turnover test, but this time focusing on the period of October, November and December 2020.
The JobKeeper payment does not ‘transfer’ from a departing employee to an employee who subsequently commences with an employer.
The new employee will still need to meet the eligibility requirements in order to receive the JobKeeper payment.
An eligible employer can only claim the JobKeeper payment for eligible employees that were employed as at 1 July 2020 (or 1 March 2020 for employees who have already qualified) and who remain employed with that employer while the employer is claiming the JobKeeper payment.
Employees currently receiving JobKeeper, who have received notice of termination, will continue to receive the JobKeeper payment up to their last day of employment, but not after they cease employment with the employer.
The current rules contemplate this scenario. If a business changes hands, an individual can be treated as an eligible employee of the same employing entity even if the business in which the person is employed subsequently changes hands.
The JobKeeper payment can be used to subsidise a range of payments to employees including wages and leave payments.
In the above scenario, the employer can still claim the JobKeeper payment for the employee on long service leave, if the employee has qualified for the JobKeeper payment as an eligible employee and, post 27 September 2020, both the employer and the employee qualify for the JobKeeper extension.
Based on government announcements so far, it appears sole traders will be able to participate in JobKeeper 2.0.
The revised rules will detail the specifics of an amended decline in turnover test governing the ability to transition from JobKeeper 1.0 to the first quarter (October, November, December 2020) of JobKeeper 2.0, and then to transition to the final quarter of JobKeeper 2 (January, February, March 2021).
At the moment, it is clear participants will have to satisfy an additional and revised decline in turnover tests at the commencement of each calendar quarter of JobKeeper 2.0.
Government announcements about JobKeeper 2.0 have noted the need for participants to demonstrate they have met the relevant decline in turnover test with reference to their actual GST turnover.
So we await the revised rules to clarify how they deal with those participants who are not registered for GST. In the JobKeeper 1.0 the ATO (as scheme administrator), has the discretion to allow alternate or varied tests to be used in appropriate circumstances.
Based upon current information we understand sole traders will be able to participate in JobKeeper 2.0.
Assuming sole traders are treated in a consistent manner to that in JobKeeper 1.0 we expect sole traders will be subject to the 20 Hour Test as a means of allocating their entitlement to a subsidy between the top-tier and lower-tier rates during the two quarters of JobKeeper 2.0.
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