Legacy Employers - Fair Work Act and Decline in Turnover Certificates

The Fair Work Act JobKeeper provisions allow some employers to continue using some of the JobKeeper provisions (with modifications) for previously eligible employees if they meet certain criteria.

Legacy employers are those who received JobKeeper payments but are no longer eligible at 28 September. They must also prove at least 10% decline in turnover for the previous quarter by obtaining a certificate from an eligible financial service provider or by statutory declaration (for small businesses only).

Statutory declarations can be used by businesses with 15 or fewer employees to declare that the business has demonstrated a 10% decline in turnover for the relevant quarter and must be completed by the employer or authorised representative of the employer. They can also get a certificate if preferred. If using a statutory declaration, the declaration must be completed before the start of the quarter

Certificates can be issued by an eligible financial services provider – a qualified accountant or registered tax or BAS agent. The certificate must confirm a decline in GST turnover of at least 10% to qualify.

Legacy Employers and Fair Work Act JobKeeper Provisions

Under the extended Fair Work Act JobKeeper provisions, legacy employers can still issue JobKeeper enabling stand down directions and change hours and duties. Employers must continue to follow the employee consultation process as per Fair Work Ombudsman information.

Legacy employers must also inform relevant employees whether they have obtained a certificate or statutory declaration and whether the JobKeeper enabling direction or agreement will continue on or end.

Any existing JobKeeper enabling directions or agreements with employees about change of hours and duties will end on 27 September. Employers must re-issue or make new directions or agreements.

For full details on legacy employers and Fair Work Act JobKeeper provisions visit the FWO JobKeeper Extension webpage.

BAS Agent Next Steps 
  • Assess employers who no longer qualify for JobKeeper after 28 September to see if they qualify as a legacy employer.
  • Discuss with your clients ahead of time so they are aware of extra time that you may need to take on top of usual tasks to assess this, advise them and complete the form.
The Fair Work Ombudsman plans to issue further guidance about legacy employers and the certificate. 

Fair Work Ombudsman – Legacy Employers  
Attorney-General’s Department – Statutory Declaration