{"id":"F2020L01172","name":"Coronavirus Economic Response Package (Payments and Benefits) Higher Rate Determination 2020","slug":"coronavirus-economic-response-package-payments-and-benefits-higher-rate-determination-2020","collection":"legislative_instrument","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":null,"makingDate":null,"administeringDepartment":null,"currentVersion":{"id":113574,"registerId":"commonwealth-F2020L01172-current","compilationNumber":null,"startDate":"2026-04-03","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"Legislative Instrument","sectionType":"part","heading":"Legislative Instrument","content":"# Legislative Instrument\n\nCoronavirus Economic Response Package (Payments and Benefits) Higher Rate Determination 2020\n\n![](image.003.png)\n\nI, Christopher David Jordan, Commissioner of Taxation, make this determination under\n\nsubsection 20(4) of the Coronavirus Economic Response Package (Payments and Benefits) Act 2020 and subsection 9A(4) of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020.","sortOrder":0},{"sectionNumber":"Christopher David Jordan AO","sectionType":"part","heading":"Christopher David Jordan AO","content":"## Christopher David Jordan AO\n\nCommissioner of Taxation\n\nDated: 16 September 2020\n\n![](image.003.png)","sortOrder":1},{"sectionNumber":"1. Name of instrument","sectionType":"part","heading":"1. Name of instrument","content":"## 1. Name of instrument\n\nThis determination is the Coronavirus Economic Response Package (Payments and Benefits) Higher Rate Determination 2020.","sortOrder":2},{"sectionNumber":"2. Commencement","sectionType":"part","heading":"2. Commencement","content":"## 2. Commencement\n\nThis instrument commences on the day after it is registered on the Federal Register of Legislation.","sortOrder":3},{"sectionNumber":"3. Application","sectionType":"part","heading":"3. Application","content":"## 3. Application\n\nThis instrument applies if the Commissioner is satisfied that the hours of the kind referred to in subsection 9A(1) of the Coronavirus Economic Response Package (Payments and Benefits)\n\nRules 2020 (the Rules) for a class of individuals in the reference period are not readily ascertainable.\n\nIf the Commissioner is so satisfied, this instrument determines the specified circumstances in which the higher rate under section 13 of the Rules is taken to apply to individuals in that class.","sortOrder":4},{"sectionNumber":"4. Determination","sectionType":"part","heading":"4. Determination","content":"## 4. Determination\n\nThis determination applies to the classes of individuals covered by section 6 of this instrument.","sortOrder":5},{"sectionNumber":"5. Definitions","sectionType":"part","heading":"5. Definitions","content":"## 5. Definitions\n\nSubject to any addition or change contained in another paragraph, an expression used in this instrument that is defined in section 4 of the Rules (including, for the avoidance of doubt, subsection 4(2) of the Rules) has the same meaning in this instrument as it has in the Rules.","sortOrder":6},{"sectionNumber":"6. Employees in respect of whom there ar","sectionType":"part","heading":"6. Employees in respect of whom there are no records or incomplete records of hours including where remuneration is not tied to hourly or contracted rates","content":"## 6. Employees in respect of whom there are no records or incomplete records of hours including where remuneration is not tied to hourly or contracted rates\n\n(1) Where an employer does not have any record, or has incomplete records, of the identified employee’s total hours of work, paid leave and paid absence on public holidays in the individual’s employment with that entity in the reference period, including where the amounts paid by the employer to an employee or class of employees are by way of salary, wages, commission, bonus or allowances that are not tied to an hourly rate or contracted rate in the reference period, the Commissioner is satisfied that those hours for that class of employees are not readily ascertainable.\n\n(2) If subsection (1) applies and the individual employee within the class referred to in that subsection falls within one or more of the determined specified circumstances in section 7, then the higher rate under section 13 of the Rules will apply to that employee.","sortOrder":7},{"sectionNumber":"7. Determination of the specified circum","sectionType":"part","heading":"7. Determination of the specified circumstances","content":"## 7. Determination of the specified circumstances\n\n(1) In accordance with subsection 9A(4) of the Rules, the higher rate under section 13 of the Rules is taken to apply to the class of employees under subsection 6(1) in the following circumstances:\n\n(a) in the reference period, the sum of the amounts covered by subsection 10(2) of the Rules totalled $1,500 or more in respect of an eligible employee (if all references to ‘fortnight’ in that subsection were instead to ‘reference period’);\n\n(b) under a written industrial award, enterprise agreement, individual contract or other similar instrument governing the employment relationship, an eligible employee was required to work 80 hours or more (including paid leave and paid absence on public holidays) in the reference period; or\n\n(c) although not readily ascertainable, it can be determined based on reasonable assumptions that an eligible employee’s hours in the reference period was 80 hours or more (including paid leave and paid absence on public holidays).\n\n(2) For the purposes of paragraph (1)(a), exclude any amount paid that:\n\n(a) exceeds the sum of the amounts covered by subsection 10(2) of the Rules which the employer was required to pay the eligible employee in the reference period in relation to the performance of work by the eligible employee (including taking leave); and\n\n(b) is reasonably attributable to amounts paid for the purpose of satisfying the wage condition in section 10 of the Rules in respect of the eligible employee for a jobkeeper fortnight.\n\nNote: This is similar to the amount of salary and wages prescribed under section 12A of the\n\nSuperannuation Guarantee (Administration) Regulations 2018.","sortOrder":8}],"analysis":{"kimi_summary":{"content_quality":"ok","complexity_score":4,"scope_assessment":{"changed":false,"description":"This determination performs exactly the function contemplated by its enabling provisions (subsections 20(4) of the Act and 9A(4) of the Rules). It addresses a specific administrative gap—unrecorded hours—without expanding into new policy areas. The scope remains tightly constrained to determining eligibility for the higher JobKeeper rate where hours are not readily ascertainable."},"complexity_factors":["Heavy reliance on external legislative instruments—requires simultaneous reading of the Coronavirus Economic Response Package (Payments and Benefits) Act 2020 and the Rules 2020 to understand basic operation","Nested conditional logic: section 6(1) establishes a class, section 6(2) applies that class to individuals, section 7(1) sets three alternative tests, and section 7(2) adds an exclusion modifier to the first test","Counterfactual interpretation required in section 7(1)(a): asks readers to imagine subsection 10(2) with 'fortnight' replaced by 'reference period'","Cross-reference to Superannuation Guarantee Regulations in the Note, creating a three-layer legislative sandwich (Determination → Rules → Regulations)","Defined terms imported by reference from section 4 of the Rules rather than defined locally"],"plain_english_summary":"This determination lets employers claim the higher JobKeeper rate for employees whose hours weren’t properly recorded by applying three alternative tests (a pay threshold, written contract/agreement, or a reasonable estimate) instead of strict hour logs. It targets employers of salaried managers, commission or bonus-paid staff and others on non-hourly pay.\n\nIt matters because it prevents reduced subsidies solely due to poor record-keeping, ensuring eligible workers receive the higher JobKeeper payment."},"flash_summary":{"complexity_score":4,"scope_assessment":{"changed":false,"description":"This instrument does not expand or repeal the underlying Rules; it exercises the Rules’ delegated power to specify when the Rules’ higher rate applies if hours are not readily ascertainable. It defines affected classes and the specified circumstances (s.3, s.6, s.7), thereby clarifying application rather than altering the statutory scope."},"complexity_factors":["Commissioner’s subjective satisfaction trigger — instrument applies only if Commissioner is satisfied hours are not readily ascertainable (s.3, s.6(1)), adding administrative discretion.","Class-based approach — operates against classes of employees rather than only individually, requiring employers/Commissioner to identify affected classes (s.4, s.6).","Multiple alternative tests to apply the higher rate — monetary threshold, contractual hours threshold, or reasonable-assumption hours threshold (s.7(1)(a)–(c)), which require different evidentiary approaches.","Calculation and exclusion rule for monetary test — excludes amounts paid that exceed required work-related payments and those attributable to satisfying the wage condition, adding a valuation step (s.7(2)).","Cross-references to the Rules and other instruments — definitions and operation depend on terms and thresholds in the Rules and external regulations, increasing interpretive linkage (s.5; note regarding Superannuation Guarantee reg.).","Record-keeping and evidentiary burden on employers — applies where records are missing or incomplete and where pay is not hourly, creating potential compliance reconstruction costs (s.6)."],"plain_english_summary":"This determination sets out when the Rules' higher payment rate applies to employees whose hours in the reference period are not readily ascertainable. It covers classes where employers lack complete hours records or pay by salary/commission not tied to hourly rates, and prescribes three alternative tests (monetary, contractual hours, or reasonable-assumption hours) that make the higher rate apply. It affects employers (record-keeping burden), employees (eligibility for the higher rate) and the Commissioner (decision-making discretion), creating incentives to retain or reconstruct hours information."},"flash_summary_failed":{"failed":true,"reason":"A positive credit balance is required for all requests, including BYOK, so fallback providers remain available. Add credits at https://vercel.com/d?to=%2F%5Bteam%5D%2F%7E%2Fai%3Fmodal%3Dtop-up to continue.","source":"analysis-cron"}},"importantCases":[],"_links":{"self":"/api/acts/coronavirus-economic-response-package-payments-and-benefits-higher-rate-determination-2020","history":"/api/acts/coronavirus-economic-response-package-payments-and-benefits-higher-rate-determination-2020/history","analysis":"/api/acts/coronavirus-economic-response-package-payments-and-benefits-higher-rate-determination-2020/analysis","conflicts":"/api/acts/coronavirus-economic-response-package-payments-and-benefits-higher-rate-determination-2020/conflicts","importantCases":"/api/acts/coronavirus-economic-response-package-payments-and-benefits-higher-rate-determination-2020/important-cases","documents":"/api/acts/coronavirus-economic-response-package-payments-and-benefits-higher-rate-determination-2020/documents"}}