Afaf Ayoubi v Quantum Risk Management Pty Ltd

[2020] FWC 3027

[2020] FWC 3027

The attached document replaces the document previously issued with the above code on 10 June 2020 to amend a typographical error in paragraph [4].

Associate to Deputy President Gostencnik.

Dated 10 June 2020

[2020] FWC 3027

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789GV - Application to deal with a dispute under Part 6-4C

Afaf Ayoubi
v
Quantum Risk Management Pty Ltd
(C2020/3652)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 10 JUNE 2020

Application to deal with a dispute in relation to JobKeeper.

[1] On 18 May 2020 Ms Afaf Ayoubi applied under s.789GV of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute about the operation of Part 6-4C of the Act. The Respondent is Quantum Risk Management Pty Ltd, the Applicant’s employer.

[2] In answer to question 2.2 of the Form F13A, which asks the Applicant to set out what the dispute is about, Ms Ayoubi relevantly states:

“1. Employer qualifies for Job Keeper and I am an eligible employee. After sending me the nomination form, employer then advised that my nomination was made in error and they withdrawing my nomination.

2. I sent them information confirming I am eligible and that if a company qualifies for job keeper then all eligible employees must be nominated, and I wanted an explanation as to why I had been singled out to no longer be nominated.

…”

[3] In answer to question 3.1 of the Form F13A, which asks the Applicant to set out the remedy they are seeking, Ms Ayoubi states:

“I would like to have my job keeper nomination reinstated and applicable payments be commenced.”

[4] On 18 May 2020 staff of the Commission attempted unsuccessfully to contact the Applicant by telephone. A voicemail message was left advising, among other things, that the dispute as notified to the Commission appears to be a dispute about eligibility for the JobKeeper payment and does not appear to be a dispute about the operation of Part 6-4C of the Act. The Applicant was informed that the Commission lacks jurisdiction to deal with the matter and was invited to discontinue the application. Following the telephone call the Applicant was sent an email restating the information contained in the voicemail message and attaching a Form F50 – Notice of discontinuance.

[5] The application was not discontinued and on 21 May 2020 my Associate contacted Ms Ayoubi by email indicating that on the face of the application lodged the dispute about which she complained did not appear to be within the Commission’s jurisdiction. Ms Ayoubi was directed to file a submission addressing this issue by 5pm on Friday, 22 May 2020.

[6] On 22 May 2020 Ms Ayoubi contacted my Chambers by email requesting further time in which to file a submission addressing jurisdiction. I granted the Applicant’s request for further time and directed her to file any submission by no later than 5pm on Friday, 5 June 2020. At the time of this Decision no submission has been received.

[7] I have decided to dismiss Ms Ayoubi’s application, for the reasons that follow.

[8] Part 6-4C was introduced into the Act by the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020. The Part allows employers to give certain directions to employees and make certain requests of them. It also allows employees to make particular requests of their employer about other employment and training.

[9] The Part also contains provisions which are civil remedy provisions enforceable in the Federal Court of Australia or the Federal Circuit Court of Australia pursuant to the provisions in Part 4-1 of the Act.

[10] Section 789GV of the Act allows the Commission to deal with disputes about the operation of the new Part. The provisions of the new Part are confined to an employer that is a ‘national system employer’ and to an employee who is a ‘national system employee’ (s.789GC). An extended meaning of these terms is found in Division 2A of Part 1-3 of the Act.

[11] Part 6-4C does not deal with whether an employer is eligible for a JobKeeper payment in respect of a particular employee or whether a particular employee is an “eligible employee” for the purposes of the JobKeeper scheme.

[12] These matters are addressed primarily by the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 made by the Treasurer under s.20 of the Coronavirus Economic Response Package (Payments and Benefits) Act 2020.

[13] Disputes about whether an employer is eligible for a JobKeeper payment in respect of a particular employee or whether a particular employee is an “eligible employee” for the purposes of the JobKeeper scheme, without more, are not disputes with which the Commission is empowered to deal under the power conferred on it by s.789GV of the Act.

[14] The dispute the subject of this application is a dispute about eligibility to participate in the JobKeeper scheme. That is not a dispute about the operation of Part 6-4C of the Act. The Commission has no power to deal with the dispute. The application is dismissed.

DEPUTY PRESIDENT

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