Tax Office says it can't force businesses to put workers on JobKeeper
The Australian Tax Office has said it cannot compel businesses to include workers in JobKeeper if the employer has decided they are ineligible to get the $1500 fortnightly wage subsidy.
The written advice to a worker, seen by this masthead, means even if employees are entitled to JobKeeper they have nowhere to appeal to if their boss leaves them off it, based on different interpretations of the rules.
Treasurer Josh Frydenberg says if a business goes on JobKeeper then all its employees must get it.Credit:Alex Ellinghausen
"The Australian Taxation Office does not have the power to rule on eligibility matters," the advice to the worker reads. "There is currently no mechanism for an employee to dispute the assessment of eligibility by an employer."
When asked about eligibility rules, the Tax Office told this masthead employers must follow the 'one in, all in' rule. "The employer cannot select which eligible employees will participate in the scheme," a spokeswoman said.
When disputes about eligibility happen the Tax Office tries to educate employers about the rules with a view to ensuring their eligible employees can access the scheme, the spokeswoman said. "Where the employer continues to breach the one-in-all-in principle, then penalties may be applied," she said.
The Fair Work Commission, which is the national industrial tribunal, has no jurisdiction to hear disputes about eligibility, although it can resolve other JobKeeper issues. A spokeswoman for the wages watchdog the Fair Work Ombudsman referred questions about the issue to the Tax Office.
Major retailers have faced questions from casual staff, who have been excluded from JobKeeper on the basis that they took holidays long enough to stop them being considered, "regular and systematic" workers - one of the bases for eligibility.
Greens leader Adam Bandt, whose party attempted to change the law to give the Fair Work Commission the power to handle JobKeeper eligibility issues, said the current system was a "Kafka-esque show of endless referrals and zero responsibility".
Greens leader Adam Bandt wants workers to have a single destination for workers to resolve eligibility issues with JobKeeper.Credit:Alex Ellinghausen
"Potentially hundreds of thousands of people are entitled to JobKeeper but aren't getting it," Mr Bandt said. "The government says employers must give JobKeeper to all their eligible employees, but if the employer says no, the worker has nowhere to go."
The Senate passed a Greens motion on Wednesday that would give the Fair Work Commission the power to determine eligibility disputes but was rejected by the government-controlled House of Representatives.
Most businesses are eligible for JobKeeper if they have lost 30 per cent of their revenue compared to last year. If a business is eligible, it is supposed to sign up all of its employees who meet a set of criteria, including visa requirements, and working as a casual for at least 12 months or being a permanent employee.
Treasurer Josh Frydenberg said employers participating in JobKeeper had to give all of their eligible employees a change to nominate themselves for the scheme.
"Employees are able to lodge complaints with the ATO regarding any concerns they have about their employer not complying with the 'one in, all in' principle," Mr Frydenberg said. "By not adhering to the 'one in, all in' principle employers could be putting themselves at risk of penalties for providing false and misleading statements to the ATO."
As of this week the ATO had received more than 4200 tip-offs about potential misconduct in the JobKeeper scheme, which lasts until September, including some about the 'one in, all in' principle.