Fair Work Amendment (Jobkeeper Payments) Regulations 2020 (CTH) Continue Legacy Support

Thursday 24 September 2020 @ 10.31 a.m. | Industrial Law | Legal Research

On 18 September 2020, the Fair Work Amendment (Jobkeeper Payments) Regulations 2020 (Cth) were notified. According to the Explanatory Statement (“ES”), the primary purpose of the amending Regulations is to amend the Fair Work Regulations 2009 (Cth) (“the Regulations”) to “support the extension for ‘legacy employers’ of the temporary workplace flexibility measures in Part 6-4C of the Fair Work Act 2009 (‘Fair Work Act’) made by the Coronavirus Economic Response (‘Jobkeeper Payment’) Amendment Act 2020 (‘JobKeeper Amendment Act’) …”

The amending Regulations wholly commenced on 19 September 2020.

Definition of "Legacy Employers"

According to Fair Work, from 28 September 2020, certain employers can use some of the JobKeeper provisions 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 and 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.

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).

Consultation on the Legislation

The Federal Government consulted with state and territory government officials under the Inter-governmental Agreement for a National Workplace Relations System for the Private Sector and the Committee on Industrial Legislation and the National Tax Liaison Group (“NTLG”) in September 2020.

What is the NTLG?

According to the ATO website, the NTLG “is a stewardship group that focuses on significant matters in the national interest and supports key relationships reflecting the broader community”. The group provides an opportunity to discuss the strategic direction of the tax system and provides opportunities for improvements to the administration of the tax system.

Overview of the Amendments

As outlined in the Explanatory Statement, a new “Part 6 4C—Coronavirus economic response” will be inserted into the Regulations. A new regulation 6.07B provides for modifications to the 10% decline in turnover test in section 789GCB of the Fair Work Act (“Act”) as authorised by paragraph 789GCB(1)(d), and as limited by subsection 789GCB(2).

A new regulation 6.07C is also inserted, in order to provide a method of determining an employee’s ordinary hours for the purposes of JobKeeper enabling stand down directions for certain classes of employees for whom it is not possible or appropriate to assess their ordinary hours as at 1 March 2020 - for example, because they don’t have ordinary hours as at 1 March 2020 as they were not yet employed.

Outcome of the Changes

The amendments will ensure that any modifications made to the calculation of turnover for the purposes of the decline in turnover test in the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (“JobKeeper Payment Rules”) are picked up for the purposes of the “10% decline in turnover test” outlined in the Act.

This includes any existing modifications, and any future modifications that may be made, to the decline in turnover test under the JobKeeper Payment Rules, and will ensure alignment between the tests as far as possible.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.


Fair Work Amendment (Jobkeeper Payments) Regulations 2020 [CTH] - Supporting information available from TimeBase LawOne Service

Fair Ombudsman Website - Legacy Employees (Accessed 24 September 2020)

Australian Taxation Office - National Tax Liaison Group (Accessed 24 September 2020)

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