The Federal Government has released an exposure draft of the Coronavirus Economic Response Package (Payments and Benefits) Amendment Rules (No 9) 2020, which sets out details of the JobMaker Hiring Credit rules.
The JobMaker Hiring Credit was announced in the 2020–2021 Federal Budget and legislation to implement the rules, the Economic Recovery Package (JobMaker Hiring Credit) Amendment Act 2020, received Royal Assent on 13 November 2020. The Act contains what may be termed the machinery provisions, while the Statutory Rules contain the nuts and bolts of the system.
The draft Statutory Rules specify:
- the start and end dates of the scheme;
- when an employer or business is entitled to a payment;
- the amount and timing of a payment; and
- other matters relevant to the administration of the payment.
Broadly, the JobMaker Hiring Credit will be available to employers for each new job they create over the next 12 months for which they hire an eligible young person, aged 16 to 35 years old. It is expected that JobMaker Hiring Credits will support 450,000 positions at a cost of $4 billion from 2020–2021 to 2022–2023.
Generally, the amount of the JobMaker Hiring Credit payment depends on the age of the eligible additional employee when they commence employment. An entity may receive up to $200 per week for each eligible additional employee aged 16 to 29 years and up to $100 per week for each eligible additional employee aged 30 to 35 years.
The JobMaker scheme commences on 7 October 2020 and ends on 6 October 2022 (ie will run for two years), but only applies to eligible individuals who commence employment between 7 October 2020 and 6 October 2021 (ie during the first year).
An employer will be eligible for a JobMaker payment if:
- the period is a JobMaker period;
- the employer qualifies for the JobMaker scheme for the period;
- the employer has one or more eligible additional employees for the period;
- the employer has a headcount increase for the period;
- the employer has a payroll increase for the period;
- the employer has notified the ATO of its election to participate in the scheme;
- the employer has given information about the entitlement for the period to the Commissioner of Taxation in accordance with the requisite reporting requirements (to be determined by the ATO); and
- the employer is not entitled to a JobKeeper payment for an individual for a fortnight that begins during the period.
There is also scope for anti-avoidance measures (as one could imagine that all sorts of arrangements could be dreamt up to access the payment) as well as record-keeping requirements.
The logistics of the JobMaker Hiring Credit are somewhat technical (unfortunately necessitating the following long discussion). Indeed, the provisions dealing with calculating the entitlement amount are almost baffling.
Note that, while JobMaker is limited to new employees aged 16 to 35, there are other wage subsidies already on offer from the Government.
Comments on the draft Statutory Rules were due by 27 November 2020.
Entitlement to a JobMaker Hiring Credit payment is assessed in relation to three-month periods known as "JobMaker periods". Accordingly, each of the following is a JobMaker period (inclusive):
- 7 October 2020 to 6 January 2021;
- 7 January 2021 to 6 April 2021;
- 7 April 2021 to 6 July 2021;
- 7 July 2021 to 6 October 2021;
- 7 October 2021 to 6 January 2022;
- 7 January 2022 to 6 April 2022;
- 7 April 2022 to 6 July 2022; and
- 7 July 2022 to 6 October 2022.
It can be seen that there are eight JobMaker periods. Note that the distinction between periods 1 to 4 and periods 5 to 8 becomes relevant later in the following discussion.
The JobMaker Hiring Credit payment is only available to "qualifying entities". An entity is a qualifying entity in respect of a JobMaker period if, from the time it elected to participate in the scheme, it:
- carries on a business in Australia;
- has an Australian Business Number (ABN); and
- is registered to withhold pay-as-you-go (PAYG).
The payment is also available to certain non-profit bodies and deductible gift recipients (DGRs). Note that Australian universities may also participate in the scheme.
The term "business" applies as it is used in the Income Tax Assessment Act 1997 (ITAA 1997). GST pundits will notice that this is narrower than the "carrying on an enterprise" test used in that legislation.
Entities must be up to date with lodgments – at the time an entity gives information to the Commissioner about its entitlement for a JobMaker period, the entity cannot have any outstanding income tax or GST returns that have become due in the past two years.
The ATO will require that information be provided through single touch payroll (STP). Entities that are not enrolled in STP will not qualify for JobMaker payments.
Certain entities are specifically excluded from eligibility:
- those who have been subject to the levy imposed by the Major Bank Levy Act 2017 for any quarter ending before 1 October 2020 (or where a consolidated group member had been subject to the levy);
- any Australian government agency or local governing body (or wholly-owned entity of those);
- sovereign entities; and
- those where a provisional liquidator or liquidator has been appointed to the business or a trustee in bankruptcy had been appointed to the individual's property at any time in the fortnight.
Those who have clients who may be getting close to a financial cliff will be most interested in this last category.
To be eligible, an employer must have one or more eligible additional employees for a JobMaker period. An "eligible additional employee" is an individual who:
- was employed by the qualifying entity at any time during the JobMaker period;
- commenced employment between 7 October 2020 and 6 October 2021;
- was aged between 16 and 35 years at the time they commenced employment (note that there are split rates depending on the age of the individuals at the commencement of their employment);
- commenced employment no more than 12 months before the start of the JobMaker period;
- has worked an average of 20 hours a week for each whole week the individual was employed by the qualifying entity during the JobMaker period;
- meets the pre-employment conditions;
- meets the notice requirement; and
- is not excluded by the rules.
Two important limitations flow from these conditions.
First, the requirement that an employee must commence employment between 7 October 2020 and 6 October 2021 means that the JobMaker Hiring Credits payment is only available for additional employment that occurs within this 12-month period.
Second, the requirement that an employee commenced employment no more than 12 months before the start of a particular JobMaker period means that employers can only claim the JobMaker Hiring Credit payment for a particular employee for up to 12 months (ie from the time they commence employment). After 12 months, the employer can no longer receive payments in relation to that employee. However, employers can continue to qualify for payments in relation to another eligible additional employee who commenced their employment at a later time. This is the reason that, while scheme only applies for employment commenced up to 6 October 2021, payments can continue to operate until 6 October 2022 (ie JobMaker Period 8).
The pre-employment condition is that for at least 28 of the 84 days (ie for four out of 12 weeks) immediately before the commencement of employment of the individual, the individual was receiving one of the following payments under the Social Security Act 1991:
- Parenting Payment;
- Youth Allowance (except if the individual was receiving this payment on the basis that they were undertaking full-time study or were a new apprentice); or
- JobSeeker Payment.
The notice requirement for an eligible additional employee is that the individual must give written notice to the employer in the approved form that the individual:
- met one of the applicable age requirements at the time they commenced employment (ie they were aged either between 16 and 29, or between 30 and 35);
- meets the pre-employment condition; and
- has not provided a similar notice to another entity.
This notice requirement allows qualifying entities to rely on declarations made by the employee regarding their satisfaction of the pre-employment condition and that they are not nominated by another entity to receive the JobMaker Hiring Credit payment. Under no circumstances are employees permitted to have valid notices with multiple employers at the same time.
This does provide some relief for employers – the onus very much rests with the employee to make full and true disclosures.
There are two broad categories of individuals excluded from qualifying as an eligible additional employee.
The first, not unexpectedly, are relatives of the employer, namely:
- if the entity is a sole trader – the sole trader;
- if the entity is a partnership – a partner of the partnership;
- if the entity is a trust – the trustee or beneficiary of that trust; or
- if the entity is a company (other than a widely-held company) – a shareholder in the company or a director of the company.
The term "relative" means the same as in s 995-1 of the ITAA 1997. The exclusion of relatives applies on a look-through basis, where interposed entities are disregarded for the purposes of the test.
The second exclusion applies to contractors. Specifically, an individual is also excluded from being an eligible additional employee if, at any time between 6 April 2020 and 6 October 2020, the individual was engaged by the entity as a contractor or a subcontractor where they worked in a substantially similar role or performed substantially similar functions or duties.
An entity has a headcount increase for a period if the number of employees employed by the entity at the end of the last day of the JobMaker period is greater than the entity's "baseline headcount" for the period. This excess or increase in employees in comparison to baseline headcount is the "headcount increase amount".
Note, though, that to be entitled to the JobMaker Hiring Credit payment for a period, an entity must have at least one employee for whom the entity is not entitled to receive the JobMaker Hiring Credit payment. This means that, for example, an entity cannot be a sole trader and employ themselves to receive the JobMaker Hiring Credit payment (ie there must be additional employees).
For the first four JobMaker periods (7 October 2020 to 6 January 2021, 7 January 2021 to 6 April 2021, 7 April 2021 to 6 July 2021, and 7 July 2021 to 6 October 2021), the entity's baseline headcount will be the greater of one and the number of employees employed by the entity at the end of 30 September 2020.
In other words, additional employment for the first four JobMaker periods is measured by reference to the number of employees on the books as at 30 September 2020.
For the last four JobMaker periods (ie 7 October 2021 to 6 January 2022, 7 January 2022 to 6 April 2022, 7 April 2022 to 6 July 2022, and 7 July 2022 to 6 October 2022), reference is made to the corresponding period 12 months earlier or the increase of the previous period, whichever is higher. Special rules apply to working out headcount increase amount for JobMaker Period 5 to Period 8 (but, at this point, this can be next year's problem).
An entity's "total payroll amount" must be greater than its "baseline payroll" for a JobMaker period to qualify for a JobMaker payment.
The amount for each category is referable to:
- salary, wages, commission, bonuses and allowances;
- amounts withheld under PAYG;
- salary sacrifice superannuation contributions; and
- amounts applied or dealt with in any way where the employee has agreed for the amount to be so dealt with in return for salary and wages to be reduced (ie amounts forming part of salary sacrifice arrangements).
An entity's total payroll amount for a JobMaker period is the sum of payroll amounts (ie the above) for each of the entity's employees, for each pay cycle that ended during the JobMaker period.
An entity's baseline payroll amount is the sum of those amounts for a reference period that ended on or immediately before 6 October 2020 (by reference to an equivalent number of pay cycles as the number of pay cycles in the JobMaker period).
The Explanatory Material (EM) to the draft Statutory Rules states that "the payroll amount is worked out as the excess of the entity's payroll amount for a JobMaker period from the baseline payroll amount". Presumably this should read that the payroll amount is worked out as the excess of the entity's total payroll amount for a JobMaker period from the baseline payroll amount. This is used in the formula to work out the amount of the JobMaker payment.
Where the payroll amount for a JobMaker period is less than or equal to the reference period payroll amount, the entity may not claim a JobMaker Hiring Credit for that JobMaker period. This reflects that in such cases, the entity has not had a substantive increase in their overall employment levels, irrespective whether it has nominally increased the number of its employees.
In other words, it is presumably designed to prevent employers cutting the wages of existing employees to take on new employees so as to access JobMaker payments.
This is where the draft Statutory Rules start to get quite complex. The amount of a payment that a qualifying entity may receive in relation to a JobMaker period is the lesser of:
- the headcount amount; and
- the payroll amount.
The EM states that it is expected that the ATO will establish systems to automate the calculation of the payroll amount "for most employers". This is, to quote the EM, "because the calculations only rely on inputs relating to start and cessation times, the age of eligible employees at the time they commenced employment, the entity's baseline headcount and payroll on 30 September 2020 and the entity's headcount and payroll at the end of the period".
The payroll amount is the excess of the entity's total payroll amount for a JobMaker period from the baseline payroll amount, as already discussed.
The headcount amount is worked out as follows. This is taken largely verbatim from the EM, so please do not blame the writer!
It is worked out on a daily basis, ie in the JobMaker period. In working out the headcount amount, different calculations apply based on whether an eligible additional employee is aged from 16 to 29, and from 30 to 35. For these two groups, the higher rate of payment is $200 per week, and the lower rate of payment is $100 per week. The headcount amount based on the total counted days in a period is capped by the maximum payable days as worked out below.
To calculate the headcount amount for a period under the formula, the entity should:
- Step 1: count the number of higher rate days for the JobMaker period by adding together the number of days each higher rate eligible additional employee was employed in the period – these individuals are those who were aged 16 to 29 years (inclusive) at the commencement of their employment;
- Step 2: count the number of lower rate days for the JobMaker period by adding together the number of days each lower rate eligible additional employee was employed in the period – these individuals are those who were aged 30 to 35 years (inclusive) at the commencement of their employment;
- Step 3: count the number of maximum payable days for the JobMaker period by subtracting the entity's baseline headcount from the number of employees employed by the entity at the end of the last day of the period, and multiply this by the number of days in the period. For example, for the JobMaker period of 7 October 2020 to 6 January 2021 (dates inclusive), there are 92 days.
Where the sum of steps 1 and 2 (total counted days) is equal to or less than the maximum payable days for the period, the headcount amount in a JobMaker period is the sum of:
- the amount derived by multiplying the higher rate days for the period by $200, dividing the result by seven (for the number of days in a week) and rounded up to the nearest cent; and
- the amount derived by multiplying the lower rate days for the period by $100, dividing the result by seven (for the number of days in a week) and rounded up to the nearest cent.
However, if the total counted days (sum of the higher rate days and the lower rate days) exceeds the cap imposed by the maximum payable days, the counted days are reduced to the number of maximum payable days by:
- reducing the lower rate days; then
- reducing the higher rate days.
Accordingly, it is possible for the maximum payable days to cap the total counted days for a JobMaker period to the effect that there are only higher rate days used for the calculation and no lower rate days. After applying the cap imposed by the maximum payable days, the headcount amount is worked out according to the above formula.
To be entitled to the JobMaker Hiring Credit payment in relation to a JobMaker period, the entity must have notified the Commissioner in the approved form of its election to participate in the scheme by the end of the period that the entity first elects to participate.
For example, for an entity that elects to participate for the JobMaker period of 7 October 2020 to 6 January 2021, the notice must be provided to the Commissioner by 6 January 2021.
The reporting requirements will include information required by the ATO to calculate the entity's entitlement for a period. This will include the details of employees that have commenced or ceased employment during a JobMaker period and the entity's payroll amount. The information must be provided through STP.
An entity cannot participate in the JobMaker scheme if they are entitled to receive a JobKeeper payment in respect of an individual for a JobKeeper fortnight that begins during the JobMaker period. This ensures that an entity cannot participate in both the JobKeeper scheme and JobMaker scheme simultaneously.
The prohibition on JobKeeper fortnights that begin during a JobMaker period allows an entity to have a single JobKeeper fortnight that ends at the start of a JobMaker period.
Permitting this overlap allows an entity to cease its participation in the JobKeeper scheme and begin its participation in the JobMaker scheme without requiring a "gap" between the two schemes. Preventing a JobKeeper fortnight from starting in a JobMaker period ensures that any such overlap is always limited to a part of a single JobKeeper fortnight. According to the EM, this reflects that any transition between the two schemes must be limited and temporary in nature.
There are no specific anti-avoidance rules in the draft Statutory Rules, but the EM states that the types of arrangements that would be prevented are "varied". They could include "arrangements where an employer artificially inflates their employee headcount and/or payroll for a JobMaker period (for example, by terminating, or reducing the hours of, an existing older employee in order to make it appear that they have hired additional employees where there has been no substantive increase in their overall employment levels)".
Source: https://treasury.gov.au/consultation/c2020-120993; https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr6609%22