On 3 September 2020 the Fair Work Act 2009 was amended to include new JobKeeper provisions for some employers who were previously entitled to JobKeeper payments (legacy employers).
A legacy employer is an employer who previously qualified for the JobKeeper scheme but no longer qualifies, or chooses not to participate, from 28 September 2020.
From 28 September 2020, a legacy employer that holds a certificate stating they experienced at least a 10% decline in turnover can give modified JobKeeper directions or make agreements with employees.
The JobKeeper provisions for legacy employers are different from the JobKeeper provisions for employers who are currently entitled to JobKeeper payments.
Visit the Jobkeeper disputes benchbook to find out more about who can make JobKeeper directions and agreements.
A 10% decline in turnover certificate is a written certificate from an eligible financial service provider that states that the employer met the 10% decline in turnover test for the quarter that applies at the time (the designated quarter).
An eligible financial service provider is a qualified accountant, a registered tax agent or a BAS agent.
The financial service provider that issues the certificate cannot be a director or an employee of the employer or of an associated entity of the employer.
The Fair Work Ombudsman has a template 10% decline in turnover certificate on their website to help legacy employers and eligible financial service providers.
A small business that employs fewer than 15 employees can make a statutory declaration instead of getting a 10% decline in turnover certificate.
The person who makes the statutory declaration must:
The statutory declaration must state that the legacy employer met the decline in turnover test for the quarter that applies at the time (the designated quarter).
An employer meets the 10% decline in turnover test for the designated quarter if the employer’s actual GST turnover for the previous quarter is at least 10% less than their actual GST turnover for the same quarter in the year before.
A quarter is the 3-month period ending on 31 March, 30 June, 30 September or 31 December.
An employer must have a 10% decline in turnover certificate for the designated quarter that applies to the time a JobKeeper direction or agreement applies.
|Date direction or request is made||Designated quarter|
Before 28 October 2020
The quarter ending on 30 June 2020
28 October 2020 – 27 February 2021
The quarter ending on 30 September 2020
On or after 28 February 2021
The quarter ending on 31 December 2020
JobKeeper enabling directions given by legacy employers and agreements about days and times of work between a legacy employer and an employee stop applying on 28 October 2020 or 28 February 2021 if:
All JobKeeper enabling directions and agreements stop applying at the start of 29 March 2020.
Prior to 28 October 2020 and 28 February 2021, a legacy employer must notify the employee in writing if:
A legacy employer must meet the hourly rate of pay guarantee to give a JobKeeper direction or request an agreement under the JobKeeper provisions.
This means that they must pay their employee the minimum ordinary hourly rate of pay that applies to the hours the employee works (including penalty rates that apply to those hours).
Visit the JobKeeper benchbook to find out more about the hourly rate of pay guarantee.
From 28 September 2020, legacy employers that hold a 10% decline in turnover certificate can change some of the working conditions of an employee without the employee’s agreement. This is called a JobKeeper direction.
The JobKeeper provisions for legacy employers are different to the JobKeeper provisions for employees currently entitled to receive JobKeeper payments. For example, the JobKeeper provisions for legacy employers have stricter consultation requirements.
By giving a JobKeeper direction, a legacy employer can:
JobKeeper directions do not apply when an employee is taking authorised paid or unpaid leave.
Use the JobKeeper enabling direction checklist in our JobKeeper disputes benchbook to check whether a JobKeeper enabling direction meets the requirements and applies.
A legacy employer can change an employee's working days or times of work by making a JobKeeper agreement about changing the employee’s ordinary days or times of work.