Coronavirus Economic Response Package (Payments and Benefits) Rules 2020

PART 2 - JOBKEEPER PAYMENT  

Division 3 - Entitlement based on business participation  

SECTION 12   MEANING OF ELIGIBLE BUSINESS PARTICIPANT  

12(1)    
An individual is the eligible business participant for an entity for a fortnight if:

(a) the individual is not employed by the entity at any time in the fortnight; and

(b) the individual satisfies the requirements in subsection (2) at a time in the fortnight; and

(c) the individual satisfies the requirements in subsections (3) and (4); and

(d) the individual is not excluded from being the eligible business participant for the entity for the fortnight under subsection (6).

Business participation requirements

12(2)    
The requirements are satisfied at a time if, at that time:

(a) the individual is actively engaged in the business carried on by the entity; and

(b) the individual is covered by column 2 of the applicable item of the following table.

Item	Column 1 If the entity is a …	Column 2 The individual must be …
1	Sole trader	The entity
2	Partnership	A partner in the partnership
3	Trust	An adult beneficiary of the trust
4	Company	A shareholder in or a director of the company

1 March 2020 requirements

12(3)    
The requirements are that, on 1 March 2020:

(a) the individual was aged 16 years or over; and

(aa) if the individual was aged 16 or 17 years - the individual was:

(i) independent within the meaning of section 1067A of the Social Security Act 1991 ; or

(ii) not undertaking full-time study (within the meaning of the Social Security Act 1991 ); and

(b) the individual satisfied the requirements in subsection (2); and

(c) the individual:

(i) was an Australian resident (within the meaning of section 7 of the Social Security Act 1991 ); or

(ii) was a resident of Australia for the purposes of the Income Tax Assessment Act 1936 and was the holder of a special category visa referred to in the regulations under the Migration Act 1958 as a Subclass 444 (Special Category) visa.

Nomination requirements

12(4)    
The requirements are that:

(a) the individual has given a notice (the nomination notice ) in the manner set out in subsection (5) stating that:

(i) the individual satisfies the requirements in subsection (3) and in paragraph (b) of this subsection in relation to the entity; and

(ii) the individual agrees to be nominated by the entity as the eligible business participant for the entity for the purposes of the jobkeeper scheme; and

(aa) if the individual was aged 16 or 17 years on 1 March 2020 - the nomination notice includes:

(i) a statement that the individual was independent within the meaning of section 1067A of the Social Security Act 1991 on 1 March 2020; or

(ii) a statement that the individual was not undertaking full-time study (within the meaning of the Social Security Act 1991 ) on 1 March 2020; and

(b) at the time the individual gives the entity the nomination notice:

(i) the individual satisfies the requirements in subsection (2) in relation to the entity; and

(ii) the individual is not an employee (other than a casual employee) of another entity; and

(iii) the individual has not given any other entity, or the Commissioner, a nomination notice under this subsection or subsection 9(3) or 12B(4) ; and

(iv) the individual is not excluded under subsection (6) from being the eligible business participant for the entity for the fortnight in which the time occurs; and

(c) at the time the individual gives the entity the nomination notice, no other individual has already satisfied the requirements in this subsection in relation to the entity.

Note:

If an overpayment results from an individual nominating with more than one entity, the individual may be jointly and severally liable to pay the overpayment and any general interest charge on the overpayment: see section 11 of the Act.

12(5)    
For the purposes of subsection (4), the notice must be given, in the approved form, to:

(a) unless paragraph (b) applies - the entity; or

(b) if the individual is a sole trader - the Commissioner.

Exclusions

12(6)    
An individual is excluded from being the eligible business participant for an entity for a fortnight if:

(a) parental leave pay is payable to the individual and the individual ' s PPL period overlaps with, or includes, the fortnight; or

(b) at any time during the fortnight, the individual is paid dad and partner pay; or

(c) all of the following apply:

(i) the individual is totally incapacitated for work throughout the fortnight;

(ii) an amount is payable to the individual under, or in accordance with, an Australian workers ' compensation law in respect of the individual ' s total incapacity for work;

(iii) the amount is payable in respect of a period that overlaps with, or includes, the fortnight; or

(d) the individual is excluded from being the eligible business participant for the entity for the fortnight under subsection 9(3B) (about individuals who re-nominate with a new employer).

S 12(6) amended by FRLI No F2020L01021, s 4 and Sch 1 item 23, by inserting para (d), effective 15 August 2020.