You may be familiar with the frequent comment about the need to read the legislation. I encountered a perfect example of this in the past few days concerning jobkeeper. I had to seek advice. 1. s9 of the LEGISLATION says The Bill s9(2) : (2) The requirements are that, on 1 March 2020: (b) the individual was: (i) an employee (other than a casual employee) of the entity; or (ii) a long term casual employee of the entity; and 2. ATO Nomination Form says: At 1 March 2020, you were a permanent or fixed term employee, or a casual employee employed on a regular and systematic basis during the period of 12 months ending on 1 March 2020. 3. ATO website (edited to remove reference to casuals) says • were, at 1 March 2020, a o full-time, part-time or fixed term employee Confused ? - What even is a permanent employee ? (Two barristers sugested there is no such thing or its so rare it is a defect to print that expression) Most employees would argue they are not permanent. They may have some present engagement but pemaneent mean its a right - forever. You can be sacked. Employees could be full time, part time, piecework, rotating rosters or many other ways engaged. Some people are employed to not work too eg on call allowances etc. And then there are people who work who dont get paid. Or get paid very little. Nothing hourly. So if someone isnt permanent and they arent a fixed term employee (defined by Fair Work as a fixed duration term) and arnt casual what happens ? eg Most people work Full time or part time or casual. So I ask a professional tax body who flick the issue to two tax counsels as this was a issue concerning tax law interpretation. Both are stunned that the ATO made such a mistake. They are getting people to make a lawful declaration that may actually be incorrect and confuse taxpayers. But lets put that aside. I have a client. She is a sole Director and is paid.She says she is sole Director and is permanent. Paul thinks she is casual. Is she eligible ? What could go wrong here ? No, The legislation prevails over the guidance information and the legal declaration which merely authorises the Commissioner to act . The ATO is obliged to follow the law too. My client is a casual employee based on his attendance, paid hours and records. If unpaid she is not a employee as the Fair Work Act defines a employee as someone remunerated. This issues also comes up with misunderstandings about super release. Take care. Just because it seems to say what you are seeking the law may say - You may need to seek advice before jumping in. Beware of mistakes in the ATO information. You may not be penalised for a mistake but may need to incur the tax consequence of the act. eg repay overpayments or have super release included in assessable income
Some employers have changed the term "permanent" role to "ongoing" role so I guess the intention is no longer permanent in that context As for your example Paul, I think if she is the sole Director and is paid regularly (periodic) by her company and TID from her pays then I guess she is an employee of her company but then again I know no tax laws
best to avoid the secondary literature and look at the legislation as that is the law. The ATO or SRO's comments are just an interpretation.
