Colin Jason Price v Gravity Media Pty Ltd

[2021] FWC 5958

[2021] FWC 5958

FAIR WORK COMMISSION

DECISION

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

Colin Jason Price
v
Gravity Media Pty Ltd
(C2021/4386)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 1 OCTOBER 2021

Application to deal with a dispute in relation to JobKeeper - application dismissed.

[1] On 28 March 2021, Mr Colin Jason Price (Applicant) 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 Gravity Media Pty Ltd, the Applicant’s employer.

[2] In answer to Question 2.3 of the Form F13A, which asks the Applicant to set out what the dispute is about, Mr Price stated the following:

“During Fed Govs JobKeeper - my employer (Gravity Media Pty Ltd):

Said could only pay 50% of our salary (including JobKeeper)

Initially tried to make us work 100% of our hours Had to back pay me the first few months as they were paying me less than minimum wage

Told Staff we were “all in this together” and we were ALL on 50% pay

HR were aggressive in getting Staff to sign monthly contract amendments * BULLLYING *

Nov '20 – It was leaked that some Staff had been on up to 80% of their Salaries

Staff were lied to in order to get them to agree to contract amendments. * FRAUD *

Nov ’20 a Freelancer called to ask me “How are you really going” without disclosing he was to be made NSW Ops Manager, in order to get me disclose information. * BULLLYING *

Nov ’20 – I had a workplace injury. HR are refusing to discuss with me

March, I asked to go part time so I could work a second part time job. They blocked me, now my position is tentative at best.

Most recently tried to force me to work during the NSW Lockdown to do work I was not trained for; I am now on Stress Leave.

They should be audited & held to account …”

[3] In answer to Question 3.1 of the Form F13A, which asks the Applicant to set out the remedy they are seeking, Mr Price stated the following:

“I want my Employer to admit that they lied to Employees to get them to agree to month-to-month variations to their contracts and salaries which resulted in financial loss and distress for Employees.

I want my Employer to admit they fabricated the company’s financial position to gain financial advantage.

I want Gravity Media to be audited and made to pay back any government benefits they were not entitled to or that that did not on pass to the Employees.

I want my employer to deal with injury issue from last year.

I want my employer to stop bullying me – both to directly and passive aggressively.

The work for which I was contracted (at Optus) has dried up – Ultimately; I want my Employer to admit this and make me redundant and pay me a redundancy so I can move forward. I have absolutely no trust in the organization (Gravity Media) and for multiple reasons outlined above I believe my position to be completely untenable.”

[4] On 29 March 2021, most of the JobKeeper provisions in the Act were repealed. Since 29 March 2021, the Commission only can only deal with disputes arising under the provisions of Part 6-4C that continue to operate: ss 789GR and 789GS.

[5] Section 789GR of the Act provides that if an employee is subject to a JobKeeper enabling direction for a period, that period counts as service. Section 789GS deals with how an employee accrues leave entitlements, and how redundancy pay and payment instead of notice of termination of employment is calculated, where a JobKeeper enabling direction or agreement applies to the employee.

[6] On 30 July 2021, my associate contacted the Applicant by telephone to inform him that the dispute as notified to the Commission does not arise under ss 789GR and 789GS of the Act. The Applicant was informed that the Commission therefore does not appear to have jurisdiction to deal with the dispute under s 789GV of the Act. My associate referred the Applicant to the Fair Work Ombudsman for advice in relation to the matters raised and invited him to discontinue the application. The Applicant was informed that should he wish to press the application the next step would be for him to file submissions on jurisdiction and directions would be sent to this effect. The Applicant stated that he did not wish to discontinue his application.

[7] Later that day the Applicant was emailed directions inviting him to file submissions about whether the Commission has jurisdiction to deal with the dispute by Friday, 6 August 2021. The email included instructions on how to discontinue the application should he decide to do so and a Form F50—Notice of discontinuance was attached.

[8] The Applicant did not file submissions by the deadline provided. On 11 August 2021 and 23 August 2021 my associate contacted the Applicant by telephone to follow up on the submissions he was directed to file. On each of these occasions my associate again explained the jurisdictional issue and asked the Applicant if he still wished to press the application. The Applicant maintained that he did not wish to discontinue the application.

[9] On 23 August 2021 an email was sent to the Applicant extending the deadline for filing submissions to Thursday, 26 August 2021. The email stated that following this deadline the application would be determined on the material at hand. The Applicant did not file any submissions by this deadline.

[10] I have decided to dismiss the application for the reasons that follow.

[11] The Applicant has applied under s 789GV of the Act for the Commission to deal with a dispute about the operation of Part 6-4C. The dispute described in the application does not concern ss 789GR and 789GS, which are the remaining provisions of Part 6-4C. The application appears to concern allegations of underpayment, fraudulent misrepresentation, and bullying. It does not concern whether any period under which a JobKeeper enabling direction applied is being counted as service as provided in s 789GR. It also does not concern how leave entitlements accrue, or how redundancy pay or payment instead of notice on termination of employment is calculated, where a JobKeeper enabling direction or agreement has applied within the ambit of s 789GS.

[12] The dispute the subject of this application 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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