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Fair Work Act Changes for Jobkeeper for Legacy JobKeeper Employers (employers who received JobKeeper payments before 28th September) – New Decline in Turnover Test to use Fair Work Act JobKeeper Concessions.

With the JobKeeper payments scheme extending until the 28 March 2021 the Fair Work Act 2009 (Cth) has also been amended to allow the Fair Work Act to enable employers to continue to make JobKeeper enabling directions.

This amendment also allows “legacy employers” who received JobKeeper payments in the period to 28 September 2020, but no longer qualify for a payment after the 28th September 2020 to continue to make JobKeeper enabling directors if they have 10% decline in turnover.

JobKeeper Enabling Directions for Legacy Employers include:

  • issue JobKeeper enabling stand down directions (with some changes) – for example, a direction to work less hours
  • issue JobKeeper enabling directions in relation to employees’ duties and locations of work – for example, a direction to change work location
  • make agreements with employees to work on different days or at different times (with some changes) – for example, an agreement that an employee will work on different days.

If you cannot satisfy the above legacy employers test or you do not qualify for JobKeeper 2.0 you cannot make any new agreements or issue new directions under the amended Fair Work Act JobKeeper concessions from the 28th September 2020.

10 per cent decline in turnover certificate required if 15 or more employees

Legacy employers must be able to demonstrate an actual 10% decline or more in their actual GST turnover in relevant quarters in 2020/2021 compared to the equivalent quarter in the previous year.

A 10% decline in turnover certificate must be issued by a ‘financial services provider’ confirming that the employer satisfies the 10% decline in turnover test. 4Front Accountants Pty Ltd is an eligible financial services provider.

In order to use the JobKeeper concessions in the periods below, legacy employers need to have a certificate for the relevant quarters before the start of each period.

Period for JobKeeper direction or agreement – Quarter to meet 10% decline in turnover test – Comparison quarter:

  • 28 September to 27 October 2020 (inclusive) – June 2020 – June 2019
  • 28 October 2020 to 27 February 2021 (inclusive) – September 2020 – September 2019
  • 28 February to 28 March 2021 (inclusive) – December 2020 – December 2021

Legacy employers will require a certificate for the June 2020 quarter, as compared to the June 2019 quarter, by 28 September 2020 to be able to utilise Fair Work Act concessions from this date onwards up until 27 October 2020.

In order to continue using the JobKeeper provisions for the next relevant period, legacy employers need to:

  • satisfy the turnover test for the next quarter
  • get a new certificate or make a new statutory declaration confirming this decline for that quarter.

Small businesses with fewer than 15 employees may instead provide a statutory declaration to attest to the 10 per cent decline.

There may be penalties for employers who knowingly provide false or misleading information to the eligible financial service provider, or knowingly make or keep false or misleading employee records.

Please contact the 4Front team if you have any questions or require further assistance with the above for your business on 07 3245 9966.

Carmine, Drue and the 4Front Team.

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