Legacy employers were employers that:

• previously participated in the JobKeeper scheme, but no longer qualified, or chose not to participate, from 28 September 2020
• demonstrated at least a 10% decline in turnover for a relevant quarter and obtained either a:
  • 10% decline in turnover certificate from an eligible financial service provider, or
  • if they were a small business, a statutory declaration.

Under the extended JobKeeper provisions, from 28 September 2020 legacy employers could issue certain types of directions and make certain agreements with employees that they previously received JobKeeper payments for (eligible employees). The extended provisions applied from 28 September 2020. The last day they applied was 28 March 2021.

Legacy employers could previously:

• issue JobKeeper enabling stand down directions (with some changes) – for example, a direction to work less hours
• issue JobKeeper enabling directions for an employee to change their duties or work location
• make agreements with employees to work on different days or at different times.

Legacy employers needed to comply with notice and consultation rules and other safeguards under the extended JobKeeper provisions.

These directions or agreements could only start on or after 28 September 2020. The last day they applied was 28 March 2021. Notice and consultation could have started before 28 September 2020.

Directions and agreements in place on 27 September 2020

Any existing JobKeeper enabling directions and agreements that legacy employers already had in place ended on 27 September 2020. If legacy employers wanted to use JobKeeper enabling directions or agreements after this date, they needed to reissue or make new directions and agreements with their employees. These new directions or agreements needed to start on or after 28 September 2020. The last day they applied was 28 March 2021.

New directions and agreements on or after 28 September 2020

To have issued new directions or made new agreements that started on or after 28 September 2020, legacy employers needed to qualify as a legacy employer for each relevant quarter. This included:

• satisfying the 10% decline in turnover test
• having a certificate or statutory declaration.

Legacy employers could have made new:

• JobKeeper enabling stand down directions
• directions to change duties or work location
• agreements to change days or times of work.

These new directions or agreements could only start on or after 28 September 2020. Notice and consultation could have started before 28 September 2020.

JobKeeper enabling stand down directions

Legacy employers could stand down employees they had previously received JobKeeper payments for in certain circumstances.

A legacy employer could use a JobKeeper enabling stand down direction to direct an employee, that they previously received JobKeeper payments for, to temporarily:

• not work on 1 or more days that they usually work
• work for a shorter period than the employee usually worked on a particular day or days
• work less hours overall than the employee usually worked.

This meant a legacy employer could temporarily reduce an employee’s days or hours of work. However, JobKeeper enabling stand down directions made on or after 28 September 2020 couldn’t:

• result in an employee working less than 2 hours on a work day
• reduce a full-time or part-time employee’s hours of work to less than 60% of their ordinary hours as at 1 March 2020 (their ordinary hours before the impact of coronavirus).

Legacy employers needed to follow the requirements for making a direction.

Calculating 1 March 2020 ordinary hours of work

Legacy employers needed to follow certain rules where it wasn’t possible or appropriate to determine an employee’s ordinary hours of work as at 1 March 2020.

These rules applied to:

• employees whose ordinary hours of work changed on or after 1 March 2020 for reasons unrelated to coronavirus or government initiatives to slow its transmission (for example, employees on long term unpaid leave on 1 March 2020)
• employees that weren’t employed by the employer on 1 March 2020 (but who were employed on 1 July 2020).

For employees whose ordinary hours of work changed on or after 1 March 2020 for reasons unrelated to coronavirus or government initiatives to slow its transmission, their ordinary hours of work were calculated as their most recently changed ordinary hours of work (for reasons unrelated to coronavirus).

For employees not employed on 1 March 2020 (but employed on 1 July 2020), their ordinary hours of work were calculated as either:

• their ordinary hours of work when the employee started employment with the employer, or
• their hours of work as most recently changed for reasons unrelated to coronavirus.

When carrying out these calculations, any impact of a JobKeeper enabling stand down direction on the employee’s ordinary hours of work couldn’t be factored in.

Requirements for a JobKeeper enabling stand down direction

A legacy employer could give an employee, that they previously received JobKeeper payments for, a JobKeeper enabling stand down direction, as long as they met the following conditions:

• The employee couldn’t be usefully employed for their normal days or hours because of business changes attributable to:
  • the coronavirus pandemic, or
  • government initiatives to slow coronavirus transmission (such as an enforceable government direction).
• The legacy employer gave at least 7 days’ written notice to an employee and consulted with them (or their representative) before issuing a JobKeeper enabling stand down direction in writing.
• The legacy employer made sure the direction was reasonable, taking into account all of the circumstances. This included:
  • any caring responsibilities that the employee had
  • if the direction applied to a category of employees, making sure it didn’t have an unfair effect on some employees in that category compared to others.

If a direction was unreasonable, it didn’t apply to the employee.

Legacy employers had to implement the direction safely. This included considering the nature and spread of coronavirus.

A legacy employer couldn’t use a JobKeeper enabling stand down direction to increase the number of hours an employee worked.

If a JobKeeper enabling stand down direction applied to an employee, the employee had to comply with it.

The direction didn’t apply:

• when an employee was taking authorised paid or unpaid leave (such as annual leave or long service leave), or
• during any time the Fair Work Act said the employee was entitled to be absent from work (as opposed to taking leave), for example on a public holiday.

How a stand down direction was given

Legacy employers needed to:

1. Notify the employee in writing at least 7 days before giving the JobKeeper enabling stand down direction (unless the employee genuinely agreed to a shorter timeframe).
2. Follow the consultation rules for the direction – see below.
3. Give the employee the direction in writing.

Directions to change duties or work location

In certain circumstances legacy employers could issue JobKeeper enabling directions to change work location or duties of employees who they had previously received JobKeeper payments for. Legacy employers needed to give at least 7 days written notice to an employee and consult with them (or their representative) before issuing a direction to change duties or work location in writing.

These types of direction could only take effect on or after 28 September 2020 but notice and consultation could start before then. The last day they applied was 28 March 2021.

Requirements for a JobKeeper direction

To have made a direction, the legacy employer needed to ensure that:

For change in usual duties

• the duties were within the employee’s skill and competency
• the duties were safe (including considering the nature and spread of coronavirus)
• the employee had any required licences or qualifications to perform the duties
• the duties were reasonably within the scope of the employer’s business operations.

For change in work location

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

The direction wouldn’t have applied to the employee unless the legacy employer reasonably believed that the direction about duties was necessary to continue the employment of 1 or more employees. To determine whether it was necessary, it didn’t matter that the employer could have given a similar direction to another employee.

A legacy employer needed to make sure that the direction was reasonable, taking into account all of the circumstances, including:

• any caring responsibilities that the employee had
• if the direction applied to a category of employees, making sure it didn’t have an unfair effect on some employees in that category compared to others.

If a direction was unreasonable, it didn’t apply to an employee.

An employee’s minimum pay rate couldn’t be reduced while a direction to change usual duties was in place. If the temporary new duties attracted a higher minimum pay rate, the employee needed to be paid the higher pay rate. For example, under any applicable award or agreement.

If a JobKeeper enabling direction applied to an employee, the employee had to comply with it.

How a direction to change usual duties or work location was given

Legacy employers needed to:

1. Notify the employee in writing at least 7 days before giving the JobKeeper enabling direction (unless the employee genuinely agreed to a shorter timeframe)
2. Follow the consultation rules for the direction
3. Give the employee the direction in writing.

Agreements to change days or times of work

Legacy employers and their employees who previously received JobKeeper payments could agree to change the employees’ usual days or times of work. This type of agreement couldn’t result in the employee working less than 2 hours on a work day.

These agreements couldn’t start before 28 September 2020 but could be made before then. The last day they applied was 28 March 2021.

Requirements for agreements to change days or times of work

These JobKeeper provisions enabled a legacy employer to agree with an employee (that they previously received JobKeeper payments for) to perform their duties on different days or during different times. Before making an agreement, a legacy employer needed to make sure that:

• it was safe (including considering the nature and spread of coronavirus)
• it was reasonably within scope of the employer’s business operations
• the employee’s usual work hours weren’t reduced overall (as this required a JobKeeper enabling stand down direction).

If a legacy employer asked their employee to make an agreement to these changes, the employee had to consider the request and couldn’t unreasonably refuse it. This meant that the employee couldn’t refuse the request just because it resulted in them working extra hours.

Any agreement had to be recorded in writing, such as in a letter or email.

When the agreement ended, employees' terms and conditions reverted back to what they were without the agreement in place.

Notice and consultation rules

Under the extended JobKeeper provisions, legacy employers needed to give employees 7 days’ written notice before issuing a JobKeeper enabling direction. A shorter notice period could have been given if the employee genuinely agreed to it.

Legacy employers needed to consult with the employee about the direction during the 7 day notice period and keep a written record of the discussion.

While directions could only take effect on or after 28 September 2020, notice and consultation could start before then. The last day the directions applied was 28 March 2021.

An employee could appoint a representative (including a union) during the 7 day notice period. If they did, the employer needed to recognise the representative and consult with them.

Consultation included:

• providing information about the direction, including when it would take effect and the expected effects of the direction on the employee
• asking for the employee’s views on the impact of the direction (for example, the impact on family or caring responsibilities).

Legacy employers needed to promptly and genuinely consider the employee’s (or their representative’s) views within the 7 day notice period. They weren’t obliged to disclose confidential or commercially sensitive information to the employee.

If a legacy employer didn’t comply with the notice or consultation requirements, the direction didn’t apply to the employee.

Written notice about whether directions or agreements ended or continued

Legacy employers also needed to give employees that worked under either a JobKeeper enabling direction or agreement written notice about whether their new direction or agreement continued or ended.

Where a JobKeeper enabling direction or agreement ended because the legacy employer didn’t continue to meet the conditions outlined, the employer needed to give the employee written notice which outlined:

• that the direction or agreement stopped applying
• the date when the direction or agreement stopped applying.

Where the legacy employer did continue to meet the specified conditions, the employer needed to notify the employee that the direction or agreement continued.

Notice needed to be given before:

• 28 October 2020, for directions or agreements that applied between 28 September and 27 October 2020
• 28 February 2021, for directions or agreements that applied between 28 October 2020 and 27 February 2021.

When directions and agreements made on or after 28 September ended

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

Legacy employees needed to meet the 10% decline in turnover test and have a certificate or statutory declaration (for a small business employer) for each quarter they wanted to use the extended JobKeeper provisions. If they didn’t meet the requirements for the next quarter, any JobKeeper enabling directions and agreements given or made under the extended JobKeeper provisions 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.

Legacy employers needed to notify their employees in writing about whether the new directions or agreements continued to apply by the dates listed above.

Interaction with other obligations

Legacy employers who gave a JobKeeper enabling direction or made an agreement needed to comply with all existing rules in the Fair Work Act. This included:

• frequency of payment rules
• minimum hourly pay rates (in the applicable award or agreement)
• penalty rates, loadings or other allowances.

Other rules in the JobKeeper amendments to the Fair Work Act also applied to directions or agreements made by legacy employers. This included:

• directions needing to be safe and reasonable
• rules about accumulation of leave and other entitlements
• rules about requests for secondary employment, training or professional development.

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