July Practice Update

July Practice Update

Practice Update – July 2020 Edition

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Treasury Laws Amendment (2020 Measures No. 3) Bill 2020

Treasury Laws Amendment (2020 Measures No 3) Bill 2020 has passed both Houses of Parliament and is now law.

Extending the Instant Asset Write-Off

This legislation amends the income tax law to allow a business with an aggregated turnover for the income year of less than $500 million to immediately deduct the cost of a depreciating asset (instant asset write-off). The asset must cost less than a threshold of $150,000 and be first used or installed ready for use for a taxable purpose by 31 December 2020. Without these amendments the $150,000 instant asset write-off would have ended on 30 June 2020.
By extending the previous end date of 30 June 2020 to 31 December 2020, the amendments give businesses additional time to access the $150,000 instant asset write-off for their acquisitions of depreciating assets, including those purchases that have been delayed by supply chain disruptions. Further, the amendments extend cash flow support to businesses through the early stages of the recovery from the economic conditions caused by COVID-19.
It will be interesting to see if this timeframe is further extended at some later point. Note that, come 1 January 2021, if there is no further extension, the $150,000 threshold for the instant asset write-off for depreciating assets will collapse to $1,000 and the turnover threshold for eligibility for the outright deduction of less than $500 million will fall to a turnover of less than $10 million.
Editor: Please contact our office if you are considering purchasing a depreciating asset for your business and want to know if you will be eligible for the instant asset write-off.


Treasury Laws Amendment Bill 2019

Treasury Laws Amendment (2019 Measures No 3) Bill 2019 has passed both Houses of Parliament and is now law.

Testamentary trusts and minors

This legislation contains amendments to ensure the tax concessions available to minors in relation to income from a testamentary trust only apply in respect of income generated from assets of the deceased estate that are transferred to the testamentary trust (or the proceeds of the disposal or investment of those assets).
Broadly speaking, when a trustee distributes income to a minor it is taxed at the highest marginal rate (plus Medicare levy). However, there are certain exceptions to this rule. One such exception is where the trust is a testamentary trust – being a trust that was established as a result of the will of a deceased individual. Income from a testamentary trust is a type of ‘excepted trust income’ that is generally taxed at ordinary rates.
Prior to this legislation being passed, the previously existing law did not specify that the assessable income of the testamentary trust be derived from assets of the deceased estate (or assets representing assets of the deceased estate). As a result, assets unrelated to a deceased estate that were injected into a testamentary trust may, subject to anti-avoidance rules, generate excepted trust income that was not subject to the higher tax rates on minors. This was an unintended consequence, which allowed some taxpayers to inappropriately obtain the benefit of concessional tax treatment.
This legislation clarifies that excepted trust income of the testamentary trust must be derived from assets transferred to the testamentary trust from the deceased estate or from the accumulation of such income.
This change will apply in relation to assets acquired by or transferred to the trustee of a testamentary trust on or after 1 July 2019.
Please contact our office if you have any concerns about testamentary trusts making distributions to minor beneficiaries.

Regulations confirm no SG obligation on JobKeeper payments where work is not performed

The federal government has registered the Superannuation Guarantee (Administration) Amendment (Jobkeeper) Payment Regulations 2020.

These regulations ensure that amounts of salary or wages that do not relate to the performance of work and are only paid to an employee to satisfy the wage condition for getting the JobKeeper payment are prescribed by the Regulations as excluded salary or wages.

The effect is that these amounts are excluded from the calculations of an employer’s superannuation guarantee shortfall and the minimum compulsory superannuation contribution an employer is required to make in respect of an employee to avoid a superannuation guarantee charge liability.

Likewise, the Regulations recognise that an employer is only entitled to a JobKeeper payment for its employees if the business has suffered a substantial decline in turnover.  In these circumstances, it is appropriate to require employers to only make minimum superannuation contributions in respect of amounts that are required to be paid to an employee for the performance of work. 

Employers would not be required to make contributions in relation to additional amounts paid to satisfy the wage condition (for example, the amount by which $1,500 exceeds an employee’s normal pay). 

Editor:  If you are concerned about the calculation of compulsory superannuation for any employees supported by JobKeeper, please contact our office.

COVID-19 and Division 7A relief

The ATO has announced some limited relief for private companies that have loans to their shareholders or related parties that are governed by what are referred to as “complying loan agreements”.

A complying loan agreement is entered into to avoid triggering an assessable deemed dividend that could potentially be equal to the amount of the loan from the private company.

When there is a complying loan agreement between a private company and a borrower, the borrower must make the minimum yearly repayment (MYR) by the end of the private company’s income year. This avoids the borrower being considered to have received an unfranked dividend, generally equal to the amount of any MYR shortfall.

As a result of the COVID-19 situation, the ATO understands that some borrowers are facing circumstances beyond their control. To offer more support, the ATO will allow an extension of the repayment period for those borrowers who are unable to make their MYR by the end of the lender’s 2019–20 income year (generally 30 June).

Requesting the extension

A request for a 12-month extension can be made through the completion of an online application. Borrowers will be asked to confirm the shortfall, that the COVID-19 situation has affected them and that they are unable to pay the MYR as a result.
When the ATO approves an application, it will let the borrower know they will not be considered to have received an unfranked dividend. This is subject to the shortfall being paid by 30 June 2021. It will not be necessary to submit further evidence with the application.

This particular streamlined process established by the ATO only applies to applications for an extension of up to twelve months for COVID-19 affected borrowers. It is still open to a borrower to apply to obtain a longer extension of time outside the streamlined process.

Editor: If you have been affected by the COVID-19 situation and need more to time to make your minimum yearly repayment (MYR) in relation to complying loans from private companies, contact our office for assistance.

Please Note: Many of the comments in this publication are general in nature and anyone intending to apply the information to practical circumstances should seek professional advice to independently verify their interpretation and the information’s applicability to their particular circumstances.

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1.75% Increase to Minimum Wages

1.75% Increase to Minimum Wages

1.75% Increase to Minimum Wages

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The National Wage decision was announced on June 19th with a 1.75% increase awarded. This will be phased in over 3 dates.

Essential services awards such as Health, Electricity, Gas, Social & Community Services, Firefighters, Pharmacy will increase from July 1st, 2020.

The 2nd phase will increase from 1st November and includes the Clerical, Construction, Transport, Horticulture, Professional, Education, Veterinary and Waste management awards.

The final phase of increases will occur from 1st February 2021 and primarily cover the most affected COVID-19 industries such as Retail, Fitness, Hair & Beauty, Fast Food, Travel, Restaurant and Hospitality industries.

The absolute minimum wage applicable for an adult under any award will now increase to $19.84 per hour being $753.80 per standard 38 hour week.

Last week, the Victorian Government introduced a new bill to govern the issue of wages theft. The Wage Theft Bill 2020 will make underpayment of wages a criminal offence.

The bill will come into effect from 1st July 2021 and will place more stringent record keeping requirements on all employers.

For more information visit the Fairwork website

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On-Farm Drought Resilience Grant Increased To $10,000

On-Farm Drought Resilience Grant Increased To $10,000

On-Farm Drought Resilience Grant Increased To $10,000

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The Victoria Government has updated their On-Farm Drought Resilience Grant Program for Victorian farmers.

A grant of $10,000 (up from $5,000) per farm business is now available to assist eligible farm businesses.

Eligible farm businesses can now apply for the following;

  • Up to $5,000 for business decision making activites.
  • Up to $5,000 for infrastructure investments.

What local government areas are covered in the scheme?

  • Wellington and East Gippsland
  • Far North West Victoria – Millewa
  • Goulburn Murray Irrigation District

What if I have already received an On-Farm Drought Resilience Grant?

Farmers who have already received the On-Farm Drought Resilience Grant can reapply for a further funding top up that totals $5,000 for business decision making activites and $5,000 for infrastructure investments.

What are the details of eligible activities covered under the grant?

Business Decision making activities

These activities will help manage drought conditions, reposition the farm business, improve on-farm practices or make significant business changes. To be eligible the activity must be purchased and undetaken on or after 2 October 2019.

The following activites are covered;

  • Prepare, review or update strategic business plans
  • Undertake a whole farm plan
  • Undertake business risk assessment
  • Engage agronomic services for the purpose of converting the farm to be more drought resilient (e.g. pasture restoration or improvement plan, feed budgets for drought, managing soils)
  • Undertake business benchmarking
  • Undertake financial management assessment and planning
  • Undertake succession planning

Infrastructure Investment

These investments will improve drought preparedness and better position the farm business into the future. The activities must be purchased and undertaken on or after 2 October 2019.

Improvements include the following;

  • Items to construct a new or upgrade an existing Stock Containment Area (SCA) – such as fencing, gates, troughs, piping, tanks, pumps and livestock feeders. SCAs have specific design and siting requirements that must be met.
  • Reticulated water systems using pumps, piping, tanks and troughs for livestock
  • Irrigation system upgrades (e.g. automated systems, irrigation pumps)
  • Drilling of new stock water bores and associated power supply such as generators or desalination plants
  • Desilting works of existing stock and domestic dams
  • Farm development to improve drought management efficiencies to farm production systems (e.g. soil moisture monitoring, weather stations, telemetry sensor equipment)
  • Adoption of reduced tillage practices, including purchase and/or modification of equipment
  • Grain and fodder storage (e.g. silos, silage bunkers, hay sheds)
  • Internal re-fencing to better match property layout with land capability
  • Fencing for the exclusion of wildlife to protect and manage crops and pastures
  • Pasture restoration (e.g. associated seed and fertiliser costs)
  • Establishment of ground cover (e.g. fodder crops) as a remedial action before pastures can be established
  • Addition of shelter belts for shade, wind breaks and erosion control
  • Upgrading of areas (e.g. laneway upgrades, repairs or expansion) to deliver lasting benefits directly linked to productivity and profitability
  • Feeding system upgrades (e.g. feed pads or feed troughs)
  • Improving waste water and effluent management systems
  • Permanent milk vat upgrades (e.g. electronics)
  • Adoption of precision farming techniques (e.g. auto-steer tramlining, yield mapping and weed-seeker technology)
  • Mechanical seeding (e.g. hire or purchase of seeding machines, roller).
  • Items to improve mobile phone connectivity, such as permissible antennas and mobile phone repeaters, to support farmers to access internet-based information and support services.
  • Weed control, such as purchase of registered herbicide, to support maintenance of healthy pastures and to protect environmental assets.
  • Soil moisture probes as an explicit investment under soil moisture monitoring activities.

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Leave Entitlements For Casuals

Leave Entitlements For Casuals

Leave Entitlements For Casuals:
Further Landmark Decision

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The Full Federal Court of Australia (the “Court”) has determined a casual employee engaged over 3.5 years on six separate casual contracts was, on the facts, a permanent employee and therefore entitled to paid annual leave, paid personal leave, paid compassionate leave and to be paid for public holidays.

This case upholds an earlier decision, which confirmed a casual miner should receive the same leave entitlements and benefits as a permanent employee.

Facts of the Case

The employee commenced employment with the labour hire business (the “Business”) in July 2014 and signed six contracts over his tenure. Importantly, the contracts contained the following express terms:

  • The employee was a casual employee;
  • The casual loading paid to the employee was included in the flat rate of pay; and
  • One contract noted the casual loading was in lieu of leave entitlements including paid leave, notice and redundancy pay.

The Enterprise Bargaining Agreement covering the employee also clearly stated the casual loading paid to the employee was in lieu of leave entitlements.

During his six contracts, the employee worked under a roster arrangement. These rosters were often for a lengthy period of time. One roster, for example ran for the period 1 January 2015 to 31 January 2016.

Findings of the Court

The Court ultimately found the employee was a permanent employee even though his contract described him as casual.

In reaching this decision, the Court had regard to the true nature of the relationship and the work performed by the employee.

Integral to how the Court approached determining the true relationship was consideration of: how regularly the casual was engaged; any firm advance commitment to work between the employer and employee; and the predictability of the work.

The Court unanimously found the employee was entitled to back pay of leave entitlements and public holidays over the Christmas period. This case adds mounting case-law which address how Courts are assessing the relationship of casual employees. Casual employees who are deemed “regular and systematic” with a predicable work schedule are increasingly likely to be determined permanent employees with entitlements to paid leave.

Implications for the Future

This decision confirms businesses cannot rely on paying a casual loading to avoid or set off a liability to pay entitlements.

The Industrial Relations Minister, Christian Porter, did intervene in the proceedings and has stated “There is of course potential for an appeal….Given the potential for this decision to further weaken the economy at a time when so many Australians have lost their jobs, it may also be necessary to consider legislative options”

Whilst a decision is made as to whether to appeal, businesses should act with caution when engaging casual employees. In addition, businesses should review their current casual arrangements and ensure they are complying with all the relevant provision concerning casual employment in any applicable awards, or enterprise agreements.

If a business considers a casual employee is entitled to paid leave, we recommend advice be sought.

In the meantime, for those employers engaging casuals on a regular basis, the Victorian Chamber recommends the following practical considerations:

Casual Conversion

If an employee is covered by an award or enterprise agreement which contains a casual conversion clause, inform them of their right to seek casual conversion and remind them routinely. It may be prudent for employers to actively offer permanent opportunities to some casual employees, if the employer has capacity to do so and if the true nature of the employment could otherwise be ambiguous.

Declining the opportunity to convert to permanent full time or part time employment may serve as the employee’s reaffirmation of the casual arrangement and could provide a reference point for employers, should the employee attempt in future to be retrospectively categorised as a permanent employee. However, this step on its own is unlikely to satisfy the courts a casual employment relationship existed.

Any discussions or agreements must be recorded in writing and regard should be had to the requirements of any applicable award or enterprise agreement.

Rostering

For future rostered work include a statement to casual employees that all working hours and shifts are subject to change and may be declined by the employee.

Ensure a range of working hours and shifts are fairly distributed among employees. Employers can maintain a strong labour pool by ensuring an effective spread of existing skills and genuine opportunities for development among casual employees.

Rostering arrangements can be used to reinforce casual employment. This can be through a rostering system that allows staff to ‘bid’ for available rosters. Employers can confirm to the casual that each shift is accepted in isolation from the previous or next shift.

The above are suggestions that may assist going forward in the absence of immediate legislative reform. Equally, employers will need to be cautious with existing employees and that they are not exposing their business to a claim of adverse action.

Conclusion

Clear terms and conditions in employment contracts and other industrial instruments are always necessary, however what is now critical are the practices that are applied during the employment relationship including rostering patterns and managing the expectation of ongoing work. This decision as it stands also highlights that while employment relationships may start out as casual, or be agreed by all parties as being casual, it is the true nature of the relationship, which can change over time that is determinative.

Source: VECCI

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Update to Road Transport Awards 2020

Update to Road Transport Awards 2020

Update to Road Transport Awards

Including Long Distance Operations and Road Transport Distribution Award 2020 

Please see below a table summarising the changes to the Road Transport (Long Distance Operations) Award 2020 and Road Transport and Distribution Award 2020 effective from 30th April 2020.

OLD GRADE

NEW GRADE

DESCRIPTION FROM AWARD

 RELEVANT AWARD

1 NOTE: Grade levels in this award align with equivalent grade levels in the Road Transport and Distribution Award 2020 Grades 1 and 2 are not applicable to the Road Transport (Long Distance Operations) Award 2020 http://awardviewer.fwo.gov.au/award/show/MA000038
2
1 3 Driver of 2 axle rigid vehicle up to 13.9 tonnes GVM. Capacity up to 8 tonnes.

 

 

 

 

 

 

 

http://awardviewer.fwo.gov.au/award/show/MA000039

2 4 Driver of 3 axle rigid vehicle over 13.9 tonnes GVM. Capacity over 8 and up to 12 tonnes.
3 5 Driver of 4 axle rigid vehicle over 13.9 tonnes GVM.
Driver of rigid vehicle and heavy trailer combination with GCM of 22.4 tonnes or less.
Driver of articulated vehicle with GCM of 22.4 tonnes or less.
Capacity over 12 tonnes.
4 6 Driver of rigid vehicle and heavy trailer combination with GCM over 22.4 tonnes but not more than 42.5 tonnes.
Driver of articulated vehicle with GCM over 22.4 tonnes.
Driver of low loader (as defined) with GCM of 43 tonnes or less.
5 7 Driver of rigid vehicle and heavy trailer combination with GCM over 42.5 tonnes but not more than 53.4 tonnes.
Driver of double articulated vehicle with GCM 53.4 tonnes or less (includes B-doubles).
Driver of low loader (as defined) with GCM over 43 tonnes.
6 8 Driver of rigid vehicle and trailer(s) or double articulated vehicle with GCM over 53.4 tonnes (includes B-doubles).
Multi-axle trailing equipment up to 70 tonnes capacity.
7 9 Driver of road train or triple articulated vehicle exceeding 94 tonnes GCM.
8 10 Multi-axle trailing equipment.

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May Practice Update

May Practice Update

Practice Update – May 2020 Edition

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Coronavirus: Government’s JobKeeper Payment

A major part of the Government’s response to the Coronavirus (or ‘COVID-19’) pandemic is the ‘JobKeeper Payment’ Scheme.

The JobKeeper Payment is a wage subsidy that will be paid through the tax system (i.e., it will be administered by the ATO) to eligible businesses impacted by COVID-19.

Under the scheme, eligible businesses will receive a payment of $1,500 per fortnight per eligible employee and/or for one eligible business participant (i.e., an eligible sole trader, partner, company director or shareholder, or trust beneficiary).

The subsidy will be paid for a maximum period of six months (i.e., from 30 March 2020 up until 27 September 2020).  It will be paid to eligible businesses monthly in arrears, with the first payments to employers commencing from the first week of May 2020.

The JobKeeper Payment will ensure that eligible employees (and, where applicable, eligible business participants) receive a gross payment (i.e., before tax) of at least $1,500 per fortnight for the duration of the scheme.

An employer will only be eligible to receive a JobKeeper Payment in respect of an ‘eligible employee’ if, at the time of applying:

  • For employers with an aggregated annual turnover of $1 billion or less – the employer estimates that their projected GST turnover has fallen (or is likely to fall) by 30% or more; or
  • For employers with an aggregated annual turnover of more than $1 billion – the employer estimates that their projected GST turnover has fallen (or is likely to fall) by 50% or more; and
  • The employer is not specifically excluded from the scheme (e.g., one that is subject to the Major Bank Levy, one that is in liquidation, etc.).

For an employer that is registered as a charity with the Australian Charities and Not-for-Profits Commission (excluding universities and non-government schools registered as charities, which are subject to the 30% or 50% decline in turnover tests, as outlined above), a 15% decline in turnover test applies.

Importantly, eligible employers must actually elect to participate in the JobKeeper Scheme via an application to the ATO.  In making such an application, an employer will also need to:

  • Provide information to the ATO on all eligible employees (i.e., confirming the eligible employees were engaged as at 1 March 2020 and are currently employed by the business, including those who have been stood-down or re-hired). Treasury has indicated that, for most businesses, the ATO will use Single Touch Payroll (‘STP’) to pre-populate these details.
  • Continue to provide information to the ATO on a monthly basis, including the number of eligible employees employed by the business and details of its turnover.
  • The ATO has available on its website an online form which can be used by employers to register their interest in the JobKeeper Payment Scheme.

Please contact our office If you have any queries in relation to the JobKeeper Scheme.


Shortcut Method To Claim Deductions If Working From Home

As the situation around COVID-19 continues to develop, the ATO understands many employees are now working from home.  To make it easier when claiming a deduction for additional running costs you incur as a result of working from home, special arrangements have been announced.

A simplified method has been introduced that allows you to claim a rate of 80 cents per hour for all your running expenses, rather than having to calculate the additional amount you incurred for specific running expenses.

This simplified method will be available to use from 1 March 2020 until 30 June 2020.  You may still use one of the existing methods to calculate your running expenses if you would prefer to.

You can claim a deduction of 80 cents for each hour you work from home due to COVID-19 as long as you are:

  • Working from home to fulfil your employment duties and not just carrying out minimal tasks such as occasionally checking emails or taking calls; and
  • Incurring additional deductible running expenses as a result of working from home.

You do not have to have a separate or dedicated area of your home set aside for working, such as a private study.

Please contact our office if you need more information about this deduction.

SMSFs May Be Able To Offer Rental Relief To Related Party Tenants

As a result of the financial effects of the COVID-19 pandemic, some self-managed superannuation funds (‘SMSFs’) which own real property may want to give a tenant – who is a related party – a reduction in rent because the related party tenant has had a collapse in revenue.

Charging a related party a price that is less than market value is usually a contravention of the strict legislative rules SMSFs and their trustees are required to follow.

The ATO has recently advised that its approach for the 2019–20 and 2020–21 financial years is that it will not take action if an SMSF gives a tenant – even one who is also a related party – a temporary rent reduction, waiver or deferral because of the financial effects of COVID-19 during this period.

If there are temporary changes to the terms of the lease agreement in response to COVID-19, it is important that the parties to the agreement document the changes and the reasons for the change.  You can do this with a minute or a renewed lease agreement or other contemporaneous document. 

Please contact our office if you have an SMSF that could be impacted by a lease with a tenant, where the tenant cannot afford to pay some or all of its rent because of the economic consequences of COVID-19.

ATO Reminder About Salary Packaged Super

The ATO has provided employers with a recent reminder that, from 1 January 2020, there has been a legislative change to ensure that when an employee sacrifices pre-tax salary in return for an additional concessional contribution into superannuation, it will not result in a reduction in the 9.5% Superannuation Guarantee (‘SG’) obligation their employer has even though doing so reduced their Ordinary Time Earnings.

The ATO has provided information for employers, payroll software providers and intermediaries who may need to change the way they calculate SG.

The ATO advises that, from 1 January 2020, you calculate the minimum amount of SG on the employee’s ‘OTE base’.  This is the sum of the employee’s OTE and any OTE amounts they sacrifice in return for super contributions.

Additionally, super contributions to an employee’s fund under an effective salary sacrifice arrangement no longer count towards an employer’ super guarantee obligations.

If your business allows for salary sacrifice arrangements, feel free to contact our office to ensure that you are calculating SG correctly.

Please Note: Many of the comments in this publication are general in nature and anyone intending to apply the information to practical circumstances should seek professional advice to independently verify their interpretation and the information’s applicability to their particular circumstances.

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