Coronavirus Economic Response Package (Payments and Benefits) Rules 2020

PART 2 - JOBKEEPER PAYMENT  

Division 2 - Entitlement based on paid employees  

SECTION 9   MEANING OF ELIGIBLE EMPLOYEE  

9(1)    
An individual is an eligible employee of an entity for a fortnight if:

(a) the individual is employed by the entity at any time in the fortnight; and

(b) the individual satisfies the requirements in subsections (2) and (3); and

(c) the individual is not excluded from being an eligible employee of the entity for the fortnight under subsection (4).

9(1A)    

Treat an individual as satisfying paragraph (1)(b) in relation to an entity if the individual is a 1 March 2020 employee of the entity.

Note:

This subsection deals with the status of individuals who had already satisfied the requirements in subsections (2) and (3) in relation to 1 March 2020.

1 July 2020 requirements

9(2)    

The requirements are that, on 1 July 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 was:

(i) an employee (other than a casual employee) of the entity; or

(ii) a long term casual employee of the entity; 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.

Note:

See subsection (5) for the meaning of long term casual employee .

Nomination requirements

9(3)    
The requirements are that:

(a) the individual has given to the entity a notice (the nomination notice ) in the approved form stating that:

(i) the individual satisfies the requirements in subsection (2) and in paragraphs (b) and (c) of this subsection in relation to the entity; and

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

(aa) if the individual was aged 16 or 17 years on 1 July 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 July 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 July 2020; and

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

(i) the individual is not excluded under subsection (4) from being an eligible employee of the entity for the fortnight in which the time occurs; and

(ii) if the individual is a long term casual employee of the entity - the individual is not also an employee (other than a casual employee) of another entity; and

(iii) (Repealed by FRLI No F2020L01021)

(c) either:

(i) at the time the individual gives the entity the nomination notice, the individual has not given any other entity, or the Commissioner, a nomination notice under this subsection or subsection 12(4) or 12B(4) ; or

(ii) the individual is permitted by subsection (3A) to give the nomination notice 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.

When an individual can re-nominate with a new employer

9(3A)    

An individual who does not satisfy the requirement in subparagraph 9(3)(c)(i) is permitted by this subsection to give a nomination notice to an entity (the new entity ) if:

(a) the individual is a 1 March 2020 employee of, or the eligible business participant for, another entity (the old entity ); but

(b) the individual was not employed by the old entity or was not actively engaged in the business carried on by the old entity (as the case requires) at any time from the start of 1 July 2020 to the time of giving the notice to the new entity.

9(3B)    

If the individual gives the nomination notice to the new entity, the individual is excluded from being an eligible employee of, or the eligible business participant for, the old entity for any fortnight ending after giving the notice to the new entity.

Exclusions

9(4)    
An individual is excluded from being an eligible employee of 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) for an entity that is an approved provider of one or more approved child care services - at any time in the fortnight, the ordinary duties of the individual ' s employment relate principally to the operation of one or more of those services (whether or not the individual performed duties of that kind in the fortnight); or

(e) the individual is excluded from being an eligible employee of the entity for the fortnight under subsection (3B) (about individuals who re-nominate with a new employer).

Meaning of long term casual employee

9(5)    
An individual is a long term casual employee of an entity at a time if:

(a) at that time, the individual was a casual employee of the entity; and

(b) the individual had been employed by the entity on a regular and systematic basis during the period of 12 months that ended at that time.

Businesses that change hands etc.

9(6)    
For the purposes of this section, treat an entity (the later entity ) that employs an individual at a time (the later time ) as having also employed the individual at an earlier time if:

(a) the individual was employed at the earlier time by another entity in the same wholly-owned group as the later entity; or

(b) both of the following apply:

(i) at the later time, the individual is employed in a business carried on by the later entity or in a non-profit body the purposes of which are carried on by the later entity;

(ii) at the earlier time, the individual was employed in the same business or non-profit body, but that business was, or the purposes of that non-profit body were, carried on by a different entity.

Note 1:

Paragraph (b) means that an individual can be an eligible employee of an entity even if the business or non-profit body in which the individual is employed changes hands.

Note 2:

Paragraph (b) also means that, in working out if an individual is a long term casual employee of an entity at a time, employment in a business or non-profit body during the period of 12 months that ended at that time can be counted even if the business or non-profit body changed hands during that period.