Coronavirus Economic Response Package (Payments and Benefits) Alternative Reference Period Determination 2020

The instrument’s core concepts are: alternative reference period, reference time, three specified classes of individuals, and objective triggers for substituting a different 28-day or 29-day window.

Alternative reference period: The determination provides an alternative period to be used in applying particular provisions of the Rules. For eligible employees the alternative is a 28-day period (s 6(2)); for eligible business participants and eligible religious practitioners the alternative is a 29-day period (ss 7(2), 8(2)). The instrument prescribes precisely which alternative period applies in differing factual scenarios (for example, where an employee was not employed for all or part of the reference period, see s 6(1)(b)).

Reference time: The instrument defines "reference time" as 1 March 2020 or 1 July 2020, as applicable (s 5). The reference time anchors which alternative period applies and which earlier periods are compared. For eligible employees, the "reference period" is each of the 28-day periods specified in Item 1 of the table in subsection 4A(1) of the Rules (s 6(3)), connecting this determination to the Rules’ schedule of reference periods.

Three classes: The instrument separately addresses:

• Eligible employees (s 6): focuses on the total hours of work, paid leave and paid absence on public holidays in a 28-day reference period, with an 80-hour threshold and a representativeness test relative to earlier 28-day periods.
• Eligible business participants (s 7): focuses on hours actively engaged in business in February 2020, using an 80-hour threshold and comparison to earlier 29-day periods that are wholly within a calendar month.
• Eligible religious practitioners (s 8): focuses on hours spent on activities specified in paragraph 12B(2)(b) of the Rules in February 2020, again using an 80-hour threshold and comparison to earlier 29-day periods wholly within a calendar month.

Objective triggers and fallback rules: Each class provision sets out trigger conditions (for example, total hours < 80 and not representative) and then prescribes the fallback alternative period to use (for example, the "most recent 29-day period, wholly within a calendar month, ending before 1 March 2020" in s 7(2)(a)). For employees, where the employee was stood down during the first 28-day period the instrument prescribes a specific rule to identify the first 28-day period starting on a pay-cycle boundary in which they were not stood down (s 6(2)(b)).

Reliance on the Rules for meaning: The instrument explicitly imports definitions from section 4 of the Rules (s 5), and repeatedly points the user back to particular Rules provisions , for example subsections 9A(1), 12AA(1) and section 12BA , indicating that this instrument operates only as an adjunct to those Rules, not as a standalone regime.

Commissioner discretion: The instrument is only triggered if the Commissioner considers the standard period in the Rules "may not be a suitable reference period" for the specified class (s 3). The instrument then fixes alternative periods that the Commissioner can apply for those classes; it does not set a general discretion to use any period chosen ad hoc.

The instrument affects three discrete groups of individuals, and by implication the entities that employ or engage them, insofar as those individuals’ JobKeeper payment rate depends on a historical reference period under the Rules.

Eligible employees: The instrument applies to an "eligible employee of an entity" where their total hours of work, paid leave and paid absence on public holidays in a 28-day reference period were less than 80 hours and not representative of a typical such 28-day period, or where they were not employed for all or part of the reference period, or they started employment on or before the reference time but the first pay cycle ended on or after the reference time, or they are treated (by operation of the Rules) as having been employed earlier but in fact were not employed for the whole reference period (s 6(1)(a)-(d)). The definition of "reference period" for employees is tied to Item 1 of the table in subsection 4A(1) of the Rules (s 6(3)), so employees whose test period was distorted by leave, stand-downs, or business activity in declared drought or disaster zones are targeted.

Eligible business participants: The instrument applies to an "eligible business participant for an entity" where their active engagement hours in February 2020 were less than 80 and not representative relative to earlier 29-day periods, or where they first became covered by the relevant Rules column between 1 February and 1 March 2020, or where the entity conducted business in a declared drought or natural disaster zone during February 2020 (s 7(1)(a)-(c)). That group typically comprises sole traders, partners or other business participants whose active engagement is used to determine entitlement under the Rules.

Eligible religious practitioners: The instrument applies to an "eligible religious practitioner for an entity" where hours spent on the activities specified by paragraph 12B(2)(b) of the Rules in February 2020 were less than 80 and not representative, or where the practitioner first commenced those activities between 1 February and 1 March 2020 (s 8(1)(a)-(b)). This group is narrower and defined by the specific activities referenced in the Rules.

Entities and administrators: While the instrument speaks to individual classes, employers, engaging entities and administrators will be affected because they must supply or verify pay-cycle dates, hours worked, periods of paid leave, stand-down evidence, and evidence of business operations in declared drought or natural disaster zones as applicable (see ss 6-8). The instrument thus allocates evidential and record-keeping burdens to entities and individuals who seek to rely on an alternative period.

Commissioner and agency: The instrument places a gatekeeping role on the Commissioner by requiring that an alternative be applied only "if the Commissioner considers that the period ... may not be a suitable reference period" (s 3). This makes the Commissioner the deciding official as to whether the alternative framework will be engaged in a given case, and thereby affects departmental process and decision-making workloads.

Temporal cohorts: The instrument is limited to reference times of 1 March 2020 or 1 July 2020 (s 5), so affected persons are those whose employment or engagement history around those dates gives rise to the specific triggers in ss 6-8.

This instrument establishes no freestanding duties to third parties, nor does it confer new substantive benefits apart from prescribing alternative temporal baselines used to apply specific provisions of the Rules. Still, it creates concrete procedural entitlements and obligations for the parties involved in determining a JobKeeper payment rate.

Duty to use alternative period only in specified circumstances: The instrument requires that an alternative reference period be used only where the Commissioner considers the standard period in the Rules may be unsuitable (s 3) and where one of the specific statutory triggers in ss 6-8 is met. This creates a conditional duty on administrators to apply the alternative only in those circumstances.

Right to an alternative baseline: Individuals who meet the triggers in ss 6-8 have a right, under this determination, to have their entitlement under subsection 9A(1), subsection 12AA(1) or section 12BA of the Rules assessed using the alternative period prescribed in the instrument (see s 6(2), s 7(2), s 8(2)). That is, an eligible employee whose hours in the reference period were "less than 80 hours" and not representative can have a different 28-day period treated as the reference period (s 6(1)(a), s 6(2)(a)).

Evidential expectations implicit in the structure: Although the instrument does not specify an evidentiary process, its mechanics impose an implicit administrative obligation to identify and document the relevant periods and circumstances. For example, to determine whether paragraph 6(1)(a) applies requires comparing the employee’s hours in the reference period to earlier 28-day periods ending at the end of a pay cycle (s 6(1)(a)); to apply paragraph 7(1)(c) requires information that the entity conducted business in a declared drought zone or declared natural disaster zone in February 2020 (s 7(1)(c)). These expectations create record-keeping and verification tasks for claimants and entities.

Procedural specificity for standing down: The instrument sets a specific rule addressing the complication of stand-downs for employees. If an eligible employee “was stood down in the first 28-day period” that otherwise would be the alternative, the instrument instructs use of "the first 28-day period starting on the first day of a pay cycle on or after the reference time in which they were not stood down” (s 6(2)(b)). That is a rights-protective rule focused on excluding periods of stand-down from being treated as representative.

Reliance on Rules’ definitions: The instrument adopts definitions from the Rules (s 5), so rights and duties under the instrument are conditional on how the Rules define terms such as "eligible employee", "eligible business participant", "pay cycle", and the activities listed in paragraph 12B(2)(b). The instrument therefore creates procedural rights that must be exercised in the conceptual framework the Rules provide.

No penalty-making power in the instrument: The determination contains no penalty or enforcement provision of its own. It instructs which periods to use when applying parts of the Rules but does not itself attach sanctions or investigatory powers beyond the Commissioner’s triggering discretion (ss 3, 6-8). Any enforcement or penalty mechanics will therefore derive from the Rules or other instruments, not from this determination.

This determination does not itself create offences or specify direct enforcement mechanisms or monetary penalties. It is a determinative instrument that prescribes alternative reference periods for application of certain Rules provisions; it does not confer additional sanctioning powers or penalties within its text.

Absence of penalty clauses: Nowhere in the instrument are penalties, fines, civil recovery mechanisms or enforcement processes established. The instrument’s operative provisions are limited to the identification of alternative reference periods for the purpose of applying subsections in the Rules (see s 3 and ss 6-8). Because the instrument explicitly imports meanings from section 4 of the Rules (s 5), any compliance, audit, review or penalty processes that follow from the use of alternative reference periods must be those that exist in the Rules or other applicable statutory frameworks, not in this determination itself.

Role of the Commissioner: The instrument places a decision-making role with the Commissioner by providing that it applies "if the Commissioner considers that the period set out in the table in subsection 4A(1) of the Rules may not be a suitable reference period" (s 3). That discretionary gatekeeping role implies that the Commissioner or the administering agency will operate the instrument as part of their broader compliance and payment administration machinery: determining suitability, identifying the correct alternative period, and applying the Rules provisions accordingly. The instrument does not specify how the Commissioner must make such a determination or what procedural safeguards attach to it.

Likely enforcement channels outside this instrument: Since the instrument itself contains no enforcement provisions, potential enforcement activity related to misstatements, fraud or incorrect applications of an alternative period would fall back on existing provisions in the Rules or other relevant law. The instrument’s text therefore expects administration and, where necessary, enforcement to be carried out under the Rules or other legal instruments which govern jobkeeper payments, data verification and recovery. Because the instrument imports definitions from the Rules (s 5), the applicable audit and recovery mechanisms are those in the Rules and their enabling legislation, rather than in this determination.

Practical implication: Users should treat this instrument as changing only how a historical period is selected. Any dispute over the Commissioner’s exercise of discretion, or any alleged false claim in support of an alternative period, will have to be addressed via the processes in the Rules or relevant agency procedures; those processes are not recreated or expanded in this determination.

This determination is explicitly an adjunct to the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020. It imports definitions from section 4 of the Rules and directs that the alternative reference periods be used in applying specific Rules provisions (s 3, s 5). As such, the determination does not stand alone; it functions only within the statutory-locational context created by the Rules.

Direct dependencies on the Rules: The instrument states that expressions defined in section 4 of the Rules have the same meaning in this determination (s 5). Moreover, the alternative periods are prescribed for use when applying subsection 9A(1) (employees), subsection 12AA(1) (business participants) and section 12BA (religious practitioners) of the Rules (s 3; ss 6-8). The instrument also ties the employees’ "reference period" to the 28-day periods specified in Item 1 of the table in subsection 4A(1) of the Rules (s 6(3)). Therefore the instrument’s operation relies on the content and structure of the Rules, including the Rules’ definitions, payment rules and period schedules.

Interaction with declaratory instruments: The instrument refers to "a declared drought zone, or declared natural disaster zone" as a trigger for alternative periods for employees and business participants (ss 6(1)(a) note, 7(1)(c)). Those references create an intersection with whatever instruments, regulations or statutory mechanisms are used to declare drought or natural disaster zones. The determination itself does not define how those declarations are made or which authority makes them; it simply treats the existence of such declarations as a factual trigger. Thus, application of the alternative period will depend on coordination with the list of declared zones maintained under other instruments or legislation.

Administrative law and review avenues: The instrument vests a threshold judgment in the Commissioner ("if the Commissioner considers ... may not be a suitable reference period" (s 3)). Any judicial review or merits review questions about the Commissioner’s exercise of that discretion would necessarily involve interpreting both this determination and the relevant Rules. The instrument does not specify appeal or review mechanisms; those must be sought in the Rules or the broader administrative law framework.

Evidential and data-sharing interactions: Although not explicit, the instrument’s mechanics will require interactions with tax, payroll or business records , for example, to establish pay-cycle dates, hours worked, periods of paid leave, stand-downs or business activity in declared zones. Those interactions may implicate data-sharing arrangements or disclosure obligations established under other laws or administrative protocols, but the instrument does not itself create such disclosure powers.

No conflict or override stated: The instrument does not purport to override the Rules. It operates as a determination that provides prescribed alternatives for use in applying parts of the Rules when the Commissioner considers the standard period unsuitable (s 3). Its textual relation to the Rules is one of supplementation and specification, not of substitution or repeal.

The instrument contains only three items that bear on its commencement and application, and the text supplied contains no recorded amendments, revocations or prior versions.

• Commencement: The determination "commences on the day after it is registered on the Federal Register of Legislation" (s 2). That is the only temporal commencement provision in the instrument.
• No recorded amendments in the instrument: The supplied instrument text does not list any amendments, repeals or prior versions. There is no schedule indicating earlier versions or subsequent changes contained in the text supplied.
• Dependence on the Rules: Because the instrument imports definitions and operationalises provisions of the Rules (s 5 and s 3), any amendment history that affects the meaning or operation of this determination will also be coupled to changes in the Rules themselves. The instrument’s practical effect may therefore change if the referenced provisions of the Rules (for example the table in subsection 4A(1) or subsections 9A(1), 12AA(1), section 12BA) are amended, but such downstream amendment history is not recorded in this instrument.

Practical note for practitioners: To track the effective content of this determination over time one must monitor both (a) whether the instrument itself is amended or repealed on the Federal Register of Legislation, and (b) whether the referenced provisions of the Rules are amended. The instrument’s text makes clear that it does not define several terms itself but imports them from the Rules (s 5), so any amendment to the Rules’ definitions or to the Rules table of reference periods will affect how this determination operates even where the determination text remains unchanged.

The supplied instrument text contains no references to judicial or tribunal decisions, nor does it record any litigation having challenged its operation. The determination is a secondary legislative instrument whose role is procedural,defining alternative reference periods for applying particular provisions of the Rules , and the document itself does not include a litigation history section or citations to case law.

What this means in practice:

• No cases are named in the instrument. Any legal challenges to the application of the alternative reference periods would necessarily engage the Rules and possibly administrative law principles governing the Commissioner’s discretion (see s 3), but the instrument itself contains no record of litigation.
• Practitioners researching disputes should look beyond this determination for any relevant case law addressing the Rules, the Commissioner’s exercise of discretion under s 3, or administrative decisions about what constitutes a "representative" period. The determination explicitly relies on the Rules for definitions and for the substantive payment provisions (s 5), so litigation touching the Rules will be directly relevant.
• Administrative or merits review challenges to a decision that an alternative period is or is not appropriate would, where available, be pursued under the review mechanisms applicable to actions of the administering agency and under administrative law principles; those mechanisms are not set out in this instrument.

In short, this determination contains no litigation record; the absence of cases in the text does not mean litigation is impossible, but any litigation would concern the instrument’s interplay with the Rules and the Commissioner’s decision-making powers rather than penalties contained within this determination.

This instrument’s operational simplicity hides several practical complexities that create risk points for practitioners, employers and claimants. The following are concrete, textually grounded "gotchas" to watch for when applying ss 6-8.

1. Commissioner’s gating discretion (s 3): The instrument applies only "if the Commissioner considers" the standard period may be unsuitable. That is a threshold fact for the instrument’s use. There is no procedural prescription in the instrument for how the Commissioner forms that view, what evidence the Commissioner requires, or how a person can seek review of that view. Practitioners should not assume an automatic entitlement to an alternative period merely because the factual triggers in ss 6-8 are present; the Commissioner’s concurrence is required.

2. Reliance on the Rules for definitions (s 5): The instrument explicitly imports definitions from section 4 of the Rules (s 5). Key terms such as "eligible employee", "eligible business participant", "first pay cycle", "pay cycle", and the activities in paragraph 12B(2)(b) are not defined in this determination. Misunderstanding the Rules’ definitions can lead to incorrect reliance on the instrument.

3. Different period lengths and reference constructs: Eligible employees use 28-day periods (s 6), while eligible business participants and religious practitioners use 29-day periods "wholly within a calendar month" (ss 7(1)(a), 7(2)(a), 8(1)(a), 8(2)(a)). Practitioners must take care when shifting between classes , the required comparative windows differ in length and anchoring, and the instrument ties the employee reference periods back to Item 1 of the Rules’ table (s 6(3)).

4. The 80-hour threshold is absolute for triggers (ss 6(1)(a)(i), 7(1)(a)(i), 8(1)(a)(i)): Each class uses "less than 80 hours" in the relevant period as an initial trigger. That numeric threshold is strict in the wording of the instrument; hours must be calculated accurately and consistently with the Rules’ definitions of what counts as hours, paid leave, or paid absence on public holidays (s 6(1)(a) language).

5. "Representative" is a comparative concept not defined here (ss 6(1)(a)(ii), 7(1)(a)(ii), 8(1)(a)(ii)): The instrument requires that the low-hour period be "not representative" when compared to earlier periods. The determination does not define what makes a period "representative", nor does it provide a quantitative test for representativeness. Users must therefore rely on the Rules and on the Commissioner’s interpretation; expect case-by-case assessment and evidentiary scrutiny.

6. Stand-down mechanics for employees (s 6(2)(b)): For eligible employees the instrument has a specific fallback if the first 28-day period ends up containing a stand-down: use "the first 28-day period starting on the first day of a pay cycle on or after the reference time in which they were not stood down" (s 6(2)(b)). Misapplying pay-cycle boundaries or failing to identify the correct pay-cycle start date can lead to selection of an incorrect alternative period.

7. Start-date windows for new entrants (ss 6(1)(c), 7(1)(b), 8(1)(b)): The instrument provides distinct rules for people who began employment or engagement on or before 1 March 2020 but after 1 February 2020, or whose first pay cycle ended on or after the reference time (s 6(1)(c)). Understanding whether an individual's start date falls in this window is essential to picking the correct alternative period (s 6(2)(b), s 7(2)(b), s 8(2)(b)).

8. Interaction with declared drought/natural disaster zones (ss 6(1)(a) note, 7(1)(c)): The instrument treats business activity in declared drought or natural disaster zones as a potential distorter of hours. However, the instrument does not define how such declarations are evidenced. Claimants and entities must be able to prove that the entity "conducted business or some of its business" in such a zone during the relevant month.

9. Record-keeping and proof burden on claimant and entity (implied by ss 6-8): Although the instrument does not impose explicit documentation rules, its mechanics require employers and individuals to produce accurate pay-cycle dates, hour totals, paid leave records, and evidence of stand-downs or disaster-zone business activity. Absence of adequate records will make it difficult to demonstrate that a prescribed alternative period should apply.

10. No penalty detail in the instrument (Penalties section): The instrument does not explain consequences for incorrect claims or misstatements related to an alternative period. Any recovery or penalty issues will arise under the Rules or other legal instruments, not here, but claimants should be aware that misuse of the instrument’s alternatives may still have sanction consequences under the broader payment framework.

The instrument sets procedural formulas for when and which alternative reference period should be used. Compliance therefore means preparing the documentary and factual material required to show both that a trigger in ss 6-8 applies and that the correct alternative period has been identified according to the relevant subparagraph.

Establish the Commissioner’s involvement early (s 3)

• Because this determination applies only where the Commissioner considers the standard Rules period may not be suitable (s 3), applicants should engage the administering agency or the Commissioner’s office to understand the evidentiary requirements and the process for requesting an alternative period. Keep contemporaneous records of any correspondence or submissions to the Commissioner.

Identify which class applies and use the correct statutory trigger (ss 6-8)

• Determine whether the individual is an eligible employee, eligible business participant, or eligible religious practitioner under the Rules (the instrument imports the Rules’ definitions (s 5)). Use ss 6-8 respectively to evaluate whether any of the factual triggers apply: low hours and non-representativeness, recent commencement of employment/engagement in the February-March 2020 window, or business activity in a declared drought/disaster zone (s 6(1)(a)-(d); s 7(1)(a)-(c); s 8(1)(a)-(b)).

Compile precise records of hours and pay cycles

• For employees: record total hours of work, paid leave and paid public-holiday absence in the relevant 28-day reference period and earlier 28-day periods ending at the end of a pay cycle, as the instrument requires comparison to earlier 28-day periods ending at the end of a pay cycle (s 6(1)(a)). Ensure pay-cycle start and end dates are accurately documented because s 6(2)(b) hinges on pay-cycle boundaries.
• For business participants and religious practitioners: document hours "actively engaged in the business" or hours doing activities specified in paragraph 12B(2)(b) in February 2020 and in earlier 29-day periods "wholly within a calendar month" used for comparison (ss 7(1)(a)(ii), 8(1)(a)(ii), ss 7(2)(a), 8(2)(a)).

Calculate the 80-hour threshold precisely

• The instrument uses "less than 80 hours" as the trigger in multiple places (ss 6(1)(a)(i), 7(1)(a)(i), 8(1)(a)(i)). Ensure hours are calculated consistent with whatever definitions of "hours" the Rules provide, since the instrument imports the Rules’ definitions (s 5).

Demonstrate representativeness or lack of it

• Because the instrument requires that the low-hour period be "not representative" compared to earlier periods (ss 6(1)(a)(ii), 7(1)(a)(ii), 8(1)(a)(ii)), prepare comparative payroll or engagement data showing typical hours in earlier 28- or 29-day windows. Where qualitative explanations are needed (for example, unpaid leave, sickness, or injury), provide contemporaneous leave records, medical certificates, or business continuity documentation evidencing that February 2020 was atypical.

Evidence for disaster/drought triggers

• If relying on the declared drought or declared natural disaster zone trigger (ss 6(1)(a) note, 7(1)(c)), collect proof that the entity conducted business in the declared zone during the relevant month (e.g., operational records, site addresses, invoices) and the details of the relevant declaration (the instrument references such declarations but does not define them).

Document stand-downs and pay-cycle boundaries for employees

• If the employee was stood down and the first 28-day alternative period would fall within a stand-down, apply the specific fallback in s 6(2)(b). That requires documenting the stand-down period and identifying the first 28-day period starting on a pay-cycle day after the reference time in which they were not stood down.

Preserve start-date evidence for new workers

• For persons whose employment or engagement began between 1 February and 1 March 2020 (or where the first pay cycle ended on or after the reference time), keep contract start dates, payroll commencement dates and pay-cycle end dates, because ss 6(1)(c), 7(1)(b) and 8(1)(b) create special alternative-period rules for those cohorts.

Proactive communication and record submission to the Commissioner

• Because the Commissioner's assessment is the trigger for applying the instrument (s 3), submit the compiled records and a clear explanation of why the standard Rules period is unsuitable. Keep evidence of transmissions and follow-up, and request confirmation in writing of the Commissioner’s decision to apply an alternative period.

Anticipate review or verification under the Rules

• Although this determination does not set out penalties, misuse or incorrect representations in support of an alternative period may be subject to audit, recovery or sanction under the Rules or other applicable law. Maintain clean audit trails for hours worked, leave taken, and business activity in declared zones.

Coordinate with payroll and accounting systems

• The instrument’s reliance on pay-cycle boundaries, 28-day and 29-day windows, and totals of hours and paid leave will necessitate precise payroll reporting. Employers should ensure payroll systems can generate the period-specific reports and that payroll administrators understand the pay-cycle constructs used in s 6(2)(b) and the requirement for 29-day periods wholly within a calendar month for ss 7-8.

Monitor the Rules and agency guidance

• Because the instrument imports definitions and operative hooking points from the Rules (s 5), practitioners must monitor the Rules and any agency guidance about how the Commissioner exercises the suitability discretion in s 3, and any procedural directives about documentary standards for evidentiary proof.

By following these steps and maintaining contemporaneous records that align with the specific textual triggers of ss 6-8, entities and individuals can position themselves to obtain a Commissioner determination applying the alternative reference periods set out in this instrument.