Supplementary Explanatory Memorandum
(Circulated by authority of the Attorney General and Minister for Industrial Relations, the Hon. Christian Porter)Glossary
The following abbreviations and acronyms are used throughout this explanatory memorandum.
| Abbreviation | Definition |
| Bill | Coronavirus Economic Response Package (JobKeeper Payments) Amendment Bill 2020 |
| Fair Work Act | Fair Work Act 2009 |
| JobKeeper scheme | The Government-funded wage subsidy scheme administered by the Australian Taxation Commissioner under the Coronavirus Economic Response Package (Payments and Benefits) Act 2020 and Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 |
| Legacy employer | A national system employer who qualified for the JobKeeper scheme and was entitled to a JobKeeper payment under that scheme for an employee prior to 28 September 2020 but who does not qualify after that date |
| National system employer | Has the meaning in section 14 of the Fair Work Act 2009 |
General outline and financial impact
Amendments to Schedule 2 - JobKeeper-related provisions of the Fair Work Act 2009
This government amendment makes minor technical changes to the operation of the 10% decline in turnover certificate that legacy employers must obtain in order to be eligible to give JobKeeper enabling directions or requests for employees to change their days or times of work under Part 6-4C of the Fair Work Act.
Date of effect: This amendment would be included in Part 2 of Schedule 2 of the Bill and would commence the day after Royal Assent.
Proposal announced: The extension of the Fair Work Act JobKeeper provisions was announced on 21 July 2020.
Financial impact: Nil.
Human rights implications: These amendments do not raise any human rights issues. See Statement of Compatibility with Human Rights - Chapter 2, paragraphs 2.1 to 2.4.
Compliance cost impact: An exemption from Regulation Impact Statement requirements was granted by the Prime Minister as there were urgent and unforeseen events.
Chapter 1 - Amendments to Schedule 2 - JobKeeper-related provisions of the Fair Work Act 2009
Outline of chapter
1.1 This government amendment makes minor technical changes to the operation of the 10% decline in turnover certificate that legacy employers must obtain in order to be eligible to give JobKeeper enabling directions or requests for employees to change their days or times of work under Part 6-4C of the Fair Work Act.
Context of amendments
1.2 The Bill enables an eligible financial service provider to issue a written certificate that states that, in the opinion of the eligible financial service provider, a particular employer satisfied the 10% decline in turnover test for the designated quarter applicable to a specified time. This is called a 10% decline in turnover certificate.
1.3 The terms 'eligible financial service provider' and '10% decline in turnover test' are defined in the Bill.
1.4 The intention of the 10% decline in turnover certificate is that it will require a declaration from an eligible financial service provider that relates to the specified employer, and confirms that the employer satisfied the 10% decline in turnover test for the designated quarter applicable to a specified time.
Summary of new law
1.5 To ensure that the policy intention of the provision is given effect, minor technical amendments have been drafted to the provisions in the Bill to:
- •
- remove 'registered company auditor' and 'tax (financial) adviser' from the definition of 'eligible financial service provider' to ensure that only those professionals with the most appropriate skills and expertise are able to issue a 10% decline in turnover certificate; and
- •
- 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 designated quarter applicable to a specified time. 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. The amendment achieves this by removing the word 'opinion' from the relevant provision in the Bill.
Comparison of key features of new law and current law
| New law | Current law |
| Eligible financial service provider is defined as a registered tax agent or BAS agent, or a qualified accountant. | Eligible financial service provider is defined as a registered company auditor, a registered tax agent, BAS agent or tax (financial) adviser, or a qualified accountant. |
| An eligible financial service provider may issue a written certificate that relates to a specified employer and confirms that the employer satisfied the 10% decline in turnover test for the designated quarter applicable to a specified time. | An eligible financial service provider may issue a written certificate that relates to a specified employer, and states that, in the opinion of the eligible financial service provider, the employer satisfied the 10% decline in turnover test for the designated quarter applicable to a specified time. |
Detailed explanation of new law
Coronavirus Economic Response Package (Jobkeeper Payments) Amendment Bill 2020
Item 1 - Schedule 2, item 10, page 9 (line 6)
Item 2 - Schedule 2, item 10, page 9 (line 7)
Item 3 - Schedule 2, item 12, page 9 (after line 17)
Item 4 - Schedule 2, item 12, page 9 (lines 18 and 19)
Item 5 - Schedule 2, item 12, page 9 (lines 20 and 21)
1.6 The term 'eligible financial service provider' is defined in the Bill as including a registered company auditor, a registered tax agent, BAS agent or tax (financial) adviser, or a qualified accountant. These items remove registered company auditors and tax (financial) advisers from the definition to ensure that only those professionals with the most appropriate skills and expertise are able to issue a 10% decline in turnover certificate.
Item 6 - Schedule 2, item 13, page 11 (lines 1 and 2)
1.7 Paragraph 789GCD(1)(b) of the Bill specifies the operation of the 10% decline in turnover certificate issued by an eligible financial service provider. It includes a requirement that the certificate state that, in the opinion of the eligible financial services provider, the employer satisfied the 10% decline in turnover test for the designated quarter applicable to a specified time.
1.8 This item amends paragraph 789GCD(1)(b) to replace the words "states that, in the opinion of the eligible financial service provider," with the words "confirms that".
1.9 This means a 10% decline in turnover certificate must confirm, based on the information provided, that the specified employer satisfied the 10% decline in turnover test for the designated quarter applicable to a specified time.
Chapter 2 - Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Coronavirus Economic Response Package (Jobkeeper Payments) Amendment Bill 2020
2.1 This amendment is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
2.2 This government amendment makes minor technical changes to the operation of the 10% decline in turnover certificate that legacy employers must obtain in order to be eligible to give JobKeeper enabling directions or requests for employees to change their days or times of work under Part 6-4C of the Fair Work Act.
Human rights implications
2.3 This amendment does not engage any of the applicable rights or freedoms.
Conclusion
2.4 This amendment is compatible with human rights as it does not raise any human rights issues.