The Coronavirus Economic Response Package (JobKeeper Payments) Amendment Act 2020 (Cth) extended the operation of Part 6-4C of the Fair Work Act 2009 (Cth) (‘Fair Work Act’) beyond 28 September 2020 up until the 29 March 2021.    

The amendments to Part 6-4C incorporated the creation of a new category of employers known as Legacy Employers.

What is a Legacy Employer?

A legacy employer is an employer:  

• Who qualified for payments for the original JobKeeper Scheme (Jobkeeper fortnights prior to 28 September 2020) but who does not qualify for payments under JobKeeper 2.0 (i.e. JobKeeper fortnight commencing 28 September 2020); and
• Who can show at least a 10% decline in turnover as per the relevant periods (see below); and
• Who has an authorised certificate (or self-certified for a small business) confirming that decline.  

What can a Legacy Employer do?
An employer that qualifies as a legacy employer has the ability to Issue JobKeeper enabling directions to change employment arrangements for an eligible employee to:

•    Work reduced hours or days; or

• Undertake alternative duties; or  

•    Work at an alternative location.

A legacy employer can also request an employee to work different days/times to their ordinary hours/days and the request cannot be unreasonably refused.

What decline in turnover test applies to a legacy employer?
A legacy employer can only issue a JobKeeper Enabling Direction or Request if they hold a 10% decline in turnover certificate for the relevant period from a financial service provider or they are a small business who chooses to self-certify. The 10% decline in turnover test requires that:

• For the period between 28 September and 27 October 2020, an employer must have a 10% decline in turnover in the June 2020 quarter compared to June quarter 2019;
• For the period between 28 October and 27 February 2021, an employer must have a 10% decline in turnover in the September 2020 quarter compared to September quarter 2019;
• For the period between 28 February 2021 and 28 March 2021, an employer must have a 10% decline in turnover in the December 2020 quarter compared to December quarter 2019.

If, at 28 October 2020 or at 28 February 2021 the employer does not hold a certificate or self-certification (for a small business), the Direction or Request will cease to have effect.

Important changes from 28 October 2020
Members are therefore reminded that to qualify as a legacy employer between 28 October 2020 and 27 February 2021, they will need to hold a 10% decline in turnover certificate for the September quarter 2020.   

Members who do not hold a 10% decline in turnover certificate for the September quarter 2020, will no longer be able to access the temporary modified JobKeeper Enabling Directions under Part 6-4C of the Fair Work Act from 28 October 2020.

JobKeeper Enabling Directions and Requests – Legacy Employers
Members can obtain further information in relation to JobKeeper Enabling Directions and Requests for Legacy Employers by visiting the AHA|SA website under the Coronavirus Tab in the Members only section.

For any information in relation to Legacy Employers please speak with Owen, Didier or Gary at the AHA|SA office.