Fair Work Act changes for legacy employers
On 3 September 2020, the legislation extending the JobKeeper payments scheme to 28 March 2021 was enacted, which also included amendments to the Fair Work Act 2009 (Cth) to extend Fair Work Act concessions allowing Jobkeeper recipients after 27 September 2020 to continue to make JobKeeper enabling directions. It also allowed ‘legacy employers’ (who received Jobkeeper payments in the period prior to 28 September 2020, but no longer qualify for a payment after 28 September 2020) to continue to make JobKeeper enabling directions if they have 10% decline in turnover.
JobKeeper enabling directions
Under the extended JobKeeper provisions, from 28 September 2020 legacy employers can:
- 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.
To issue new directions or make new agreements that start on or after 28 September 2020, employers have to be entitled to JobKeeper payments or if not qualify as a ‘legacy employer’ for each relevant quarter. This includes satisfying the 10% decline in turnover test or having a certificate or statutory declaration.
10 per cent decline in turnover certificate
Legacy employers must be able to demonstrate a 10% decline or more in 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. Small businesses with fewer than 15 employees may instead provide a statutory declaration to attest to the 10 per cent decline.
An eligible financial service provider is defined as a registered tax agent or BAS agent, or a qualified accountant (under the Corporations Act), but specifically excludes directors or employees and associated entities of the employer. As certificates are required to 'confirm' a position, there is a risk that these documents could be construed as an audit or assurance assignment precluding certain financial service providers from issuing them, therefore accountants should ensure in the scope of the engagement it is clear that the engagement is not an audit or assurance engagement.
On 16 September 2020, a template for certificates was made available on the Fair Work Ombudsman website here. It is not mandatory to use the template, however, it is recommended that this template be used as it does satisfy the requirements of the Fair Work Act provisions and helps ensure that the ‘eligible financial service provider’ is not conducting an ‘audit or assurance assignment’.
A summary of the dates the certificate refers to is below:
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. 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.