With the extension of JobKeeper taking effect from 28 September through to March 2021, it’s important that employers are up to date with the latest eligibility requirements.

For some employers, they may no longer be eligible for the JobKeeper payment scheme from September 28 onwards. However, depending on their circumstances, they may still be able to exercise many of the same employment flexibilities that were available to them while they were eligible for JobKeeper.

This new category of employer is referred to as “legacy employers.” Essentially, they are a group of employers who were previously eligible for JobKeeper, but are either no longer eligible or have decided not to continue to take part in the scheme from September 28 onwards.

Below is a quick summary of the eligibility requirements for legacy employers, including the kind of modifications they are allowed to make to their employee’s working arrangements under the JobKeeper provisions in the Fair Work Act.

Eligibility Requirements for Legacy Employers

In order to be classified as a legacy employer, you must pass a new turnover test that has been created specifically to cater to this new group of employers.

You need to demonstrate that your business has experienced a 10% decline in turnover for each relevant quarter you wish to be classified as a legacy employer.

To demonstrate this, you need to either retrieve a certificate from an approved financial service provider or, if you are a small business employer – an employer with fewer than 15 employees at a particular time – then you need to make a statutory declaration. Small business employers can also retrieve a certificate from an approved financial service provider if they wish.

If you do not get the relevant certificate or make a statutory declaration for the corresponding period, then you cannot issue or make any JobKeeper enabling directions or agreements during that time. This means that any previously enabled directions or arrangements made prior to the end of you being eligible for the JobKeeper payment scheme will no longer apply. Here is a table provided by FairWork Australia as to the corresponding quarters that you need to demonstrate a 10% decline in turnover for:

Period for JobKeeper direction or agreementQuarter to meet 10% decline in turnover test Comparison quarter
28 September to 27 October 2020 (inclusive)June 2020June 2019
28 October 2020 to 27 February 2021 (inclusive)September 2020September 2019
28 February to 28 March 2021 (inclusive)December 2020December 2019

For more information on how to apply for this new turnover test, and what needs to be included when making calculations, visit the Actual Decline in Turnover Test page.

What Kind of Actions Can Legacy Employers Take?

Under the new legislation, legacy employers are allowed to make certain changes to the working arrangements of employees, in the same way as a business receiving JobKeeper payments.

Put simply, legacy employers can issue certain types of directions and make arrangements with employees who previously received JobKeeper payments, just without the benefit of actually receiving the JobKeeper payment.

These guidelines are set out under the newly created JobKeeper provisions in the Fair Work Act.

Below is a quick summary of the kind of directions and arrangements a legacy employer can make.

Issue JobKeeper enabling stand down directions

This allows a legacy employer to temporarily direct an employee who previously received JobKeeper payments to:

  • Not work on 1 or more days than they usually work
  • Work for a shorter period of time than the employee usually works on a particular day or days
  • Work less hours overall than the employee usually works

Keep in mind, these directions and arrangements can only be made if the reason is related to the impact of the COVID-19 pandemic, or government initiatives designed to slow the transmission of the coronavirus (i.e. state-wide lockdowns).

There are some exceptions to these rules. As of 28 September 2020, a legacy employer is not allowed to make a JobKeeper enabled stand down direction that:

  • Results in the employee working less than 2 hours per day
  • Reduces a full-time or part-time employee’s hours of work to less than 60% of their ordinary hours as of 1 March 2020 (their ordinary hours of work before the impact of coronavirus.

Directions to Change Duties or Work Location

Legacy employers can also issue employees who were previously eligible for JobKeeper payments to change their work location or duties.

There are specific requirements a legacy employer must meet in order to make this decision. They must ensure that:

For change in duties

  • The new duties are within the employee’s skill and competency
  • The new duties are safe (with consideration to the nature and spread of coronavirus)
  • The employee has the necessary licenses and qualifications to perform the duties
  • The new duties are within the scope of the employer’s business operations

For change in work location

  • The new location is suitable for the employee’s duties
  • The employee isn’t required to travel an unreasonable distance in all the circumstances (including considering the nature and spread of coronavirus)
  • It’s safe for the employee to perform their duties at the new location (with consideration to the nature and spread of coronavirus)
  • The employee performing their duties at the new location is reasonably within the scope of the employer’s business operations.

These directions will only apply to the employees if the legacy employer has good reason to believe these changes are necessary to ensure the continued employment of 1 or more employees.

Legacy employers must also take into account the circumstances of the employees as well, such as existing caring responsibilities. The decision should also not unfairly impact an individual or a group of employees who are not required to change their duties or work location.

How to Issue a Stand Down Direction or a Change of Duties/Work Location

  1. Give the employee written notice of your intention to enable a stand down direction or change of duties/work location within at least 7 days (unless the employee agrees to a shorter timeframe)
  2. Follow the relevant consultations and guidelines as they apply to enabling a stand down direction or changing an employee’s duties or work location under the JobKeeper scheme.
  3. Give the employee the direction in writing

Have Any Questions?

E-Payoffice is committed to helping both employers and employees navigate safely through the COVID-19 situation.

Do you have any questions about being a legacy employer? How it may impact your payroll obligations? And how both our dedicated payroll consultants and online payroll services can help you take the stress out of paying your employees?

Contact E-Payoffice today for expert advice and an obligation free DEMO of our dedicated payroll software.

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