Legacy employers

Published 16 September 2020 | Updated 12 October 2020

Learn about legacy employers and the rules they need to follow to meet the 10% decline in turnover test.

Legacy employers – overview

From 28 September 2020, certain employers can use some of the JobKeeper provisions (with some changes) for their previously eligible employees if they:

  • previously participated in the JobKeeper scheme, but no longer qualify (or choose not to participate) from 28 September 2020
  • can demonstrate at least a 10% decline in turnover for a relevant quarter and get a certificate from an eligible financial service provider or make a statutory declaration if they are a small business employer.

These employers are known as legacy employers.

Employers don’t need to have received JobKeeper payments every fortnight between 30 March and 28 September 2020 to be considered a legacy employer. For example, a childcare sector employer who previously received JobKeeper payments can be a legacy employer even though they were ineligible for JobKeeper payments after 20 July 2020.

Legacy employers are different to qualifying employers. Qualifying employers qualify for the JobKeeper scheme and receive JobKeeper payments for their eligible employees. They can also access the JobKeeper provisions under the Fair Work Act. Learn more at JobKeeper scheme – overview.

Employees return to their usual terms and conditions of employment if their employer doesn’t meet the criteria and requirements for a legacy employer (including obtaining the relevant 10% decline in turnover certificate).

Under the extended JobKeeper provisions, legacy employers can:

  • issue JobKeeper enabling stand down directions (with some changes)
  • issue JobKeeper enabling directions in relation to employees’ duties and locations of work
  • make agreements with employees to work on different days or at different times (with some changes).

For information about using the JobKeeper provisions as a legacy employer, go to JobKeeper enabling directions and agreements for legacy employers.

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Meeting the 10% decline in turnover test each quarter

Legacy employers need to meet a 10% decline in turnover test (turnover test) for each relevant quarter. To demonstrate this, they need to get a certificate, or make a statutory declaration if they are a small business employer, for the relevant quarter.

To meet the turnover test, a legacy employer needs to demonstrate at least a 10% decline in actual GST turnover for the quarter in 2020, when compared to the same quarter in 2019.

To issue or make a JobKeeper direction or agreement for a period when the extended JobKeeper provisions apply, a legacy employer needs to hold a certificate (or statutory declaration) for the quarter corresponding to that period, as set out in the table below.

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 2019

If legacy employers don’t get this certificate or statutory declaration, they can’t issue or make any JobKeeper directions or agreements that apply in the corresponding period. Any JobKeeper enabling directions or agreements that are already in place under the JobKeeper provisions will automatically end on:

  • 28 October 2020, if the above conditions aren’t met for the September 2020 quarter
  • 28 February 2021, if the above conditions aren’t met for the December 2020 quarter.

For information about how to apply a turnover test and what needs to be included when calculating GST turnover, visit Actual decline in turnover test external-icon.png on the ATO website.

Go to JobKeeper enabling directions and agreements for legacy employers for more information about the rules for legacy employers and using JobKeeper provisions.

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Certificates and statutory declarations

To demonstrate that they meet the turnover test, legacy employers:

  • need to get a certificate from an eligible financial service provider that confirms the employer has satisfied the turnover test for the relevant quarter, or
  • can make a statutory declaration instead of getting a certificate if they are a small business.

Small business employers can still choose to get a certificate from an eligible financial service provider.

Penalties may apply if an employer knowingly provides false or misleading information to an eligible financial service provider, or knowingly makes or keeps false or misleading employee records.

Visit Information for eligible financial service providers for:

  • information about what needs to be included in a certificate and who can issue or make them
  • rules for and about eligible financial service providers
  • a template certificate.

Statutory declarations

Small business employers can make a statutory declaration instead of getting a certificate.

The statutory declaration needs to:

  • outline that the employer has experienced at least a 10% decline in turnover for the relevant quarter
  • be completed by an individual who:
    • is the employer, or is authorised by the employer
    • has knowledge of the employer’s financial matters.

    The Attorney-General’s Department has information about making a statutory declaration and a downloadable template that employers can use. Go to Complete a statutory declaration external-icon.png on the Attorney-General’s Department website.

    Penalties may apply if a person knowingly makes a false statement in the statutory declaration.

    After making a valid statutory declaration, the employer should then keep a copy of it.

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    Record-keeping

    Certificates are issued by eligible financial service providers for the purpose of qualifying for the extended JobKeeper provisions as a legacy employer. You may wish to share a copy of the certificate or statutory declaration with your employees to demonstrate eligibility for the extended scheme.

    Legacy employers should keep records of their certificates or statutory declarations as evidence of the decline in turnover.

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    Eligibility disputes

    We encourage employers and employees to work together to find solutions for their circumstances. Where there are disputes that can’t be resolved, there are a few different avenues to resolve them based on the nature of the dispute.

    Our Resolving workplace issues during coronavirus page has information and resources to help you. It also has information about our enforcement role under the JobKeeper scheme and who can help with:

    • questions about eligibility for the JobKeeper scheme
    • disputes about directions or requests under the JobKeeper scheme
    • disputes related to requirements for legacy employers, including certificates.

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    More information

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