From 28 September 2020 until 28 March 2021, certain employers could 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 qualified (or chose not to participate) from 28 September 2020
• could demonstrate at least a 10% decline in turnover for a relevant quarter and obtained a certificate from an eligible financial service provider or made a statutory declaration if they were a small business employer.

These employers were known as legacy employers.

Employers didn’t need to have received JobKeeper payments every fortnight between 30 March and 28 September 2020 to have been considered a legacy employer.

Legacy employers were different to qualifying employers. Qualifying employers qualified for the JobKeeper scheme and received JobKeeper payments for their eligible employees. They could also access the former JobKeeper provisions under the Fair Work Act.

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

Under the extended JobKeeper provisions, legacy employers were able to:

• 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).

The extended provisions applied from 28 September 2020. The last day they applied was 28 March 2021.

Meeting the 10% decline in turnover test each quarter

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

To meet the turnover test, a legacy employer needed 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 have issued or made a JobKeeper direction or agreement for a period when the extended JobKeeper provisions applied, a legacy employer needed to hold a certificate (or statutory declaration) for the quarter corresponding to that period, as set out in the table below.

If legacy employers didn’t get this certificate or statutory declaration, they couldn’t issue or make any JobKeeper directions or agreements that applied in the corresponding period. Any JobKeeper enabling directions or agreements that were already in place under the JobKeeper provisions automatically ended on:

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

Certificates and statutory declarations

To have demonstrated that they met the turnover test, legacy employers:

• needed to get a certificate from an eligible financial service provider that confirmed the employer had satisfied the turnover test for the relevant quarter, or
• made a statutory declaration instead of getting a certificate if they were a small business.

Small business employers could also have chosen to get a certificate from an eligible financial service provider.

Penalties may apply if an employer knowingly provided false or misleading information to an eligible financial service provider, or knowingly made or kept false or misleading employee records.

Statutory declarations

Small business employers could have made a statutory declaration instead of getting a certificate.

The statutory declaration needed to:

• have outlined that the employer had experienced at least a 10% decline in turnover for the relevant quarter
• have been completed by an individual who:
  • was the employer, or was authorised by the employer
  • had knowledge of the employer’s financial matters.

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

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

Record-keeping

Certificates were issued by eligible financial service providers for the purpose of qualifying for the extended JobKeeper provisions as a legacy employer. Employers may have wished to share a copy of the certificate or statutory declaration with employees to have demonstrated eligibility for the extended scheme.

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

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