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JobKeeper - Long-Term Casual - Regular and Systematic

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I am a long-term casual employee. My employer and I don't agree on my eligibility due to our differing interpretation of "regular and systematic". We agree that we both meet all other criteria for JobKeeper. My employer has advised me I will not be nominated for JobKeeper. My employer fears they will not be reimbursed if I am ruled to be ineligible. It appears I cannot receive a ruling on my eligibility until I have already been nominated.

 

This link from the ATO website

 

( https://www.ato.gov.au/General/JobKeeper-Payment/In-detail/Employee-test-requirements/?anchor=TheJob... )

 

suggest the following points would cover employment as systematic and regular, for long-term casuals and would to my understanding confirm my eligibility:

 

1) "a reasonable expectation of ongoing work"

 2) "is not necessary to have worked the same days and hours over each pay period"

 3) "You may be considered employed on a regular and systematic basis and therefore eligible for the JobKeeper payment where there is a pattern of work with hours offered and accepted regularly"

 

My situation is:

 

1) I have an expectation of ongoing work, though a "reasonable" expectation would be easier to quantify if there were guidelines from the ATO. My employment contract has previously been updated/renewed which to me reflects my employer’s intention to continue my ongoing work. I believe I meet this criterion.

 2) My employment is ad hoc, some weeks I work 4-6 days, other weeks I work 2-3, and others I work 0-1. I believe I meet this criterion.

 3) My pattern of work is determined by when my employer requires my service, this is the nature of casual employment - it is not part-time employment. My pattern of work is to accept every shift I am offered, the pattern depends on the work my employer needs my services for. I believe I meet this criterion.

 

Furthermore, I make myself fully available to my employer so I can work whenever I'm needed. My hours have been reduced to zero as my employment has been impacted by the shutdowns. 

 

So, my employer has advised me that I am ineligible. I have explained why I believe I am eligible and have still been classified as ineligible by my employer.

 

The Fair Work Commission’s JobKeeper Disputes page

 

(https://www.fwc.gov.au/about-us/coronavirus-covid-19-updates-advice/jobkeeper-disputes)

 

states:

 

 “Questions about the eligibility of an employer or a particular employee for the JobKeeper payment should be directed to the Australian Taxation Office”

 

Can you please help me by telling me what options I have in this situation, I have tried explaining to my employer that I should be considered eligible. Is there a clearer definition of which long-term casuals will or will not be covered by the JobKeeper? Is there a timeframe in which long-term casuals can expect clarity on 'regular and systematic'?

 

Thank you for your time, I appreciate any information that can be offered as my situation is currently halted.

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Hi @CasualWorker123

 

Thanks for reaching out to us.

 

We understand that this is a question that is causing a lot of confusion. While we can't provide definitive answers to questions like this on our forum, we can point you in the right direction.

 

It sounds like you have already had a good read of the relevant information on our website. From what you have advised, it sounds like you have ticked more than enough boxes.

 

A casual employee is likely to be employed on a regular and systematic basis with a recurring work schedule or a reasonable expectation of ongoing work. It doesn't have to be both although satisfying both certainly helps. 

 

You don't need to be doing lots of hours to be eligible. Where there is a pattern of work with hours offered and accepted regularly, that would indicate that you meet the requirement.

 

It is important to note that it is up to your employer to determine whether you meet the long-term casual requirement. We suggest that you show your employer our response when you get in touch with them. They are obliged to nominate all their eligible employees if they intend to claim the JobKeeper Payment. They can always phone us if they are concerned.

 

Good luck with it all.

 

Thanks, ChrisR

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Hi

 

We would also very much welcome specific guidelines for workers in your position. As an employer we have contacted the ATO on 2 occasions and have been told catagorically no and probably not but possible. As employers we bear the responsibility and penalty for nominating employees (ie we take their self-assessment and then must make a judgement call and take on the responsibility of incorrectly assessing eligibility) who the ATO subsequently determines were ineligible. FWA said that it was ATO legislation and therefore the ATO definition of regular and systematic for this specific payment (as opposed to the employment contract).

What would help is the ATO clarifying the parameters their computer program will use when examining the data for eligibility of employees and releasing that information so that we can be certain. The computer program will require very specific percentages, or is it just going to look at employment as at 1 March 2019 plus at least one payment in between 1 March 2019 and 2020 and a payment after 1 March 2020? At the moment we are stuck between a rock and a hard place, particularly given we must have already lost a significant percentage of turnover (not profit) and still have bills to pay and in some cases obtained loans to pay the additional amounts over and above normal wages for employees who ordinarily earn less than the $750 a week.

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Hi @26AB

 

Thanks for joining the conversation.

 

You have asked some good questions. We are looking into it further and will get back to you as soon as we can.

 

All the best.

 

Thanks, Chris

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Thanks for responding to my question. However you have just said yes to an employee in the position I was talking about and put the onus back on the employer as the bad guy if they assess them as ineligible, even though based on multiple phone calls to the ATO. I know you don't make the decisions personally, but the ATO need to man-up and let employers know what the specific basis is for confirming eligiblity. Alternatively you need to let us know that the ATO wants us to pay all casuals who have been employed in the last 12 months for any amount of time, no matter how irregular (because you haven't defined regular just offered work and accepted which could be a few hours or a day or two with maybe months in between) and that we won't be penalised down the track for paying someone who is subsequently assessed as ineligible by the ATO computer program. Also, please don't take this as a slur on casual workers - it's just knowing there is a big stick waiting for employers who move in the wrong direction because they aren't clear on what the right way is. If the ATO are going to rely on our assessment and leave it at that, then say that.


@ChrisATO wrote:

Hi @26AB

 

Thanks for joining the conversation.

 

You have asked some good questions. We are looking into it further and will get back to you as soon as we can.

 

All the best.

 

Thanks, Chris


 

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Community Support

Replies 0

Hi @CasualWorker123

 

Thanks for reaching out to us.

 

We understand that this is a question that is causing a lot of confusion. While we can't provide definitive answers to questions like this on our forum, we can point you in the right direction.

 

It sounds like you have already had a good read of the relevant information on our website. From what you have advised, it sounds like you have ticked more than enough boxes.

 

A casual employee is likely to be employed on a regular and systematic basis with a recurring work schedule or a reasonable expectation of ongoing work. It doesn't have to be both although satisfying both certainly helps. 

 

You don't need to be doing lots of hours to be eligible. Where there is a pattern of work with hours offered and accepted regularly, that would indicate that you meet the requirement.

 

It is important to note that it is up to your employer to determine whether you meet the long-term casual requirement. We suggest that you show your employer our response when you get in touch with them. They are obliged to nominate all their eligible employees if they intend to claim the JobKeeper Payment. They can always phone us if they are concerned.

 

Good luck with it all.

 

Thanks, ChrisR