JobMaker Hiring Credit Rules and Reporting

The Government registered the Coronavirus Economic Response Package (Payments and Benefits) Amendment Rules (No 9) 2020 on 4 December 2020. These set out details of the JobMaker Hiring Credit rules.

The JobMaker Hiring Credit was announced in the Federal Budget and legislation to implement the rules – the Economic Recovery Package (JobMaker Hiring Credit) Amendment Act 2020 – received assent on 13 November 2020. This Act contains what may be termed the “machinery” provisions, while the Statutory Rules contain the “nuts and bolts” of the system.

The Statutory Rules specify:

  • the start and end date 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.

Generally, the amount of the JobMaker Hiring Credit payment depends on the age of the eligible additional employee when they commence employment with the entity. 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, but only applies to eligible individuals who commence employment between 7 October 2020 and 6 October 2021.

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 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.

Changes from the draft Rules

The Statutory Rules were released in draft form on 2 November 2020. During the consultation, “some concerns” were raised around complexity for small businesses. Changes were subsequently made to to clarify certain provisions and to reduce complexity “where possible”. However, the explanatory statement (ES) to the registered Rules says that some complexity in the provisions “is unavoidable” (particularly regarding the “additionality” requirements). The ES goes on to state, however, that “much of the practical implications” will be resolved through the ATO’s “proposed administration of the scheme”.

There is no doubt that the logistics of the JobMaker Hiring Credit are very technical (unfortunately necessitating the following long discussion). Indeed, the provisions dealing with calculating the entitlement amount are almost baffling.

JobMaker periods

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 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.

Qualifying employers

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 for pay-as-you-go (PAYG) withholding.

The payment is also available to certain non-profit bodies or deductible gift recipients. Note that Australian universities may also participate in the scheme.

The term “business” is 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 of Taxation 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 the financial cliff will be most interested in this last category.

Disqualified employers

An entity may be separately disqualified for the JobMaker scheme for a period if:

  • at or before the end of the period, the entity terminates the employment; or
  • at or before the end of the period, the entity reduces the ordinary hours of work of an employee; and
  • the termination or reduction is part of a scheme for the sole or dominant purpose of the entity obtaining, or increasing the amount of, the JobMaker payment.

This denies access to JobMaker for an employer who enters into an arrangement to artificially inflate their employee headcount and/or payroll for a JobMaker period. Terminating or reducing the hours of an existing employee could be considered part of a scheme to facilitate greater access to JobMaker by hiring other employees.

Generally, this rule would not apply to an arrangement voluntarily entered into by the employee whose employment was terminated or whose ordinary hours of work were reduced.

An employer who is disqualified under this specific rule loses all entitlements to JobMaker for any JobMaker period that ends after the termination or reduction in hours occurred. This includes the period in which the termination or reduction occurred, as well as any subsequent periods.

In addition to losing access to the hiring credit under the general anti-avoidance provisions, employers who take adverse action against an older employee in order to benefit from the scheme may also be acting unlawfully under the Age Discrimination Act 2004 and the Fair Work Act 2009.

One or more additional employees for the period

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 individual at the commencement of their employment);
  • has worked or has been paid for 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 as an eligible additional employee.

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 JobMaker 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 JobMaker for a given 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).

Pre-employment condition: recipients of social security

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 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 was a new apprentice); or
  • JobSeeker Payment.

Notice requirement

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 either aged between 16 and 29, or between 30 and 35);
  • meets the pre-employment condition; and
  • has not provided a similar notice to another entity of which they are currently an employee.

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.

Excluded persons

There are two broad categories of individuals who are excluded from qualifying as an eligible additional employee.

The first category, not unexpectedly, is relatives of the employer, namely:

  • if the entity is a sole trader – the sole trader themselves;
  • 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” has the same meaning 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.

This is designed to prevent parties converting an existing consultancy relationship into an employment relationship, as this would not result in additional aggregate employment (which is what JobMaker is designed to stimulate).

Headcount increase amount for a JobMaker period

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 the JobMaker Hiring Credit payment. As a result, an entity cannot be a sole trader and employ themselves to receive the JobMaker Hiring Credit payment –  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. There are special rules that 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).

Payroll increase for a JobMaker period

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 the PAYG withholding regime;
  • 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 (eg amounts forming part of salary sacrifice arrangements).

An entity’s total payroll amount for a JobMaker period is the sum of these payroll amounts 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 ES to the Statutory Rules states 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 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 its overall employment levels, irrespective of whether it has nominally increased the number of its employees.

In other words, the design is presumably to prevent employers cutting the wages of existing employees to take on new employees and therefore access JobMaker payments.

Amount of JobMaker payment

This is where the draft Statutory Rules start to get quite complex. The amount of payment that a qualifying entity may receive in relation to a JobMaker period is the lesser of:

  • the headcount amount; and
  • the payroll amount.

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 ES to the Rules, “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 information is taken largely verbatim from the ES.

It is worked out on a daily basis in the relevant 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 formula.

Participation and notification requirements

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. The notification requirements are set out in the JobMaker Hiring Credit Reporting Obligations Instrument 2020.

Interaction with JobKeeper

An entity cannot participate in the JobMaker scheme if it is 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 the JobMaker scheme simultaneously.

The prohibition on JobKeeper fortnights that begin during a JobMaker period allows an entity to have a single JobKeeper fortnight end 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 ES, this reflects that any transition between the two schemes must be limited and temporary in nature.

Reporting obligations

The Government also registered the JobMaker Hiring Credit Reporting Obligations Instrument 2020 on 4 December 2020. This sets out the information that employers who seek to participate in the JobMaker Hiring Credit scheme must provide the ATO.

Specifically, it describes information that must be reported under JobMaker, including the information that must be reported each time a claim for a payment is made under the scheme. The instrument also explains how reporting must be undertaken and when reports are due.

Employee reporting

Certain information must be reported before an employer can claim JobMaker. This includes the following details for each employee an employer intends to claim for as an eligible additional employee using STP:

  • TFN;
  • date of birth;
  • full name;
  • date employment commenced (if occurring in the JobMaker period);
  • date employment ceased (if occurring in the JobMaker period); and
  • whether the employee met the average hours of work requirement for the JobMaker period.

The ATO is developing specifications setting out the JobMaker Hiring Credit functionality for STP enabled payroll software. Information will be located on the ATO website.

The Rules set out reporting deadlines on this, starting in April 2021 and progressing forward on a monthly basis. Given that the information must be provided before a claim can be paid, it is in the employer’s interest to provide the information as soon as possible.

Payment claim information

Information that must be provided when a claim is made includes:

  • the total payroll expenses for the JobMaker period;
  • the baseline payroll amount for the period;
  • the total headcount at the end of the JobMaker period;
  • the baseline headcount for the JobMaker period;
  • confirmation that each employee included in the claim calculation is an eligible additional employee (including that the minimum hours test has been satisfied);
  • a declaration which meets specific requirements;
  • a signature which meets specific requirements; and
  • financial institution account details.

This information is to be reported via ATO Online services for Individuals, ATO Online Services for Business, Business Portal or Online Services for Agents or the Business Portal as part of the claims process.

Important: Clients should not act solely on the basis of the material contained here. Items herein are general comments only and do not constitute or convey advice per se. Also, changes in legislation may occur quickly. We, therefore, recommend that our formal advice be sought before acting in any of the areas. 

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