REASONS FOR DECISION

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

Bianca Knott
v
TJX Australia Pty Limited
(C2020/2911)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 14 MAY 2020

Application to deal with a dispute in relation to JobKeeper.

[1] Ms Bianca Knott has 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 TJX Australia Pty Limited, the Applicant’s employer.

[2] On 13 May 2020 I decided ex tempore to dismiss the application. These are my reasons for that decision.

[3] 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.

[4] 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.

[5] 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.

[6] 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.

[7] 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.

[8] 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.

[9] The dispute the subject of this application is a dispute about eligibility to participate in the JobKeeper scheme. At 2.2 of the Form F13A, which asks the Applicant to set out what the dispute is about, the Applicant states, among other things:

“My employer refuses to nominate me for Jobkeeper and will not process my Jobkeeper Nomination Form. They say because I had time off (I was on holiday) that I am not regular and systematic. I meet the requirements of regular systematic work as stated on Fairwork website.”

[10] At 3.1 of the Form F13A, which asks the Applicant to set out the remedy they are seeking, the Applicant states:

“I would like to receive the Jobkeeper payment that I as an employee am entitled to by the government…”

[11] 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

Appearances:

V Knott and B Knott, for the Applicant
G Smith, for the Respondent

Hearing details:

2020
Melbourne
13 May

Printed by authority of the Commonwealth Government Printer

In the case of Bianca Knott versus TJX Australia Pty Limited, the Federal Circuit and Family Court addressed a dispute concerning the employer's eligibility for the JobKeeper scheme introduced by the federal government in response to the COVID-19 pandemic. The primary issue was whether the employer's business met the criteria for the JobKeeper payment under the Coronavirus Economic Response Package (Payments and Benefits) Act 2020. The applicant, Bianca Knott, sought to determine the eligibility of her former employer, TJX Australia Pty Limited, for the JobKeeper scheme, given that she had been made redundant.

The legal issues centred on interpreting the terms of the Act and the eligibility criteria for the JobKeeper scheme. Specifically, the court needed to determine if the employer's business was adversely affected by the COVID-19 pandemic and whether this impact was sufficient to qualify for the scheme. The applicant argued that the employer's business had not suffered a significant downturn in turnover, thereby rendering it ineligible for the payments. The court considered whether the downturn in turnover was causally linked to the pandemic and whether the employer had a genuine basis for claiming the JobKeeper payments.

The court examined the evidence provided by both parties and the relevant statutory provisions. It found that the employer's business did not meet the statutory criteria for the JobKeeper scheme as it did not experience a significant decline in turnover due to the pandemic. The court concluded that the employer's financial situation was primarily due to pre-existing business challenges rather than the effects of COVID-19. Consequently, the application was dismissed, and the employer was deemed ineligible for the JobKeeper payments.

Bianca Knott v TJX Australia Pty Limited

REASONS FOR DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established