Colleen Elizabeth Barrett v Western Star Kids Family Day Care P/L

[2020] FWC 3754

[2020] FWC 3754

FAIR WORK COMMISSION

DECISION

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

Colleen Elizabeth Barrett
v
Western Star Kids Family Day Care P/L
(C2020/5426)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 16 JULY 2020

Application to deal with a dispute in relation to JobKeeper.

[1] On 13 July 2020, Ms Colleen Elizabeth Barrett 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 Western Star Kids Family Day Care P/L, 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 Barrett relevantly states:

“I was asked by the Manager on 3 April 2020 to stay home from work due to COVID-19 restrictions until I am called back to work, when the restrictions are lifted.

I was told that all employees would be going on JobKeeper but we weren’t sure if I was entitled because I am on an age pension. Our payroll officer is an accountant in Sydney and my employer applied through him for JobKeeper for those employees who are entitled.

…

As 6 weeks has now passed, it appears that I am being ignored concerning my right to JobKeeper, which is substantially more than my age pension and the reason I work part-time, so I can have some savings and pay off my car. I am advised by the ATO that I probably won’t be able to get restrospective [sic] payment, but as JobKeeper will continue until September, I can receive the payment from here-on until the end date.”

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

“To receive the JobKeeper entitlement asap [sic] until the program ends.”

[4] On 14 July 2020, Commission staff attempted to contact the Applicant by telephone and left voice messages. On 14 July 2020, Commission staff emailed the Applicant to advise, 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. The emails included instructions on how to discontinue the application and a Form F50—Notice of discontinuance was attached.

[5] On 14 July 2020, the Applicant responded to the email stating:

“Thank you. Yes I do wish to continue with my claim.”

[6] On 14 July 2020, Commission staff contacted Ms Barrett by telephone to explain how her application would be dealt with by the Commission. Ms Barrett was advised she would be directed to file a submission about the Commission’s jurisdiction to deal with her dispute. Following this telephone call, Ms Barrett was sent an email directing her to file a submission about jurisdiction by 10:00 AM on Thursday, 16 July 2020.

[7] On 14 July 2020, the Applicant responded to the direction stating:

“I advise I want the commission to continue with my case. However, I don’t understand why you don’t have jurisdiction over this claim because I wasn’t nominated by my employer for JobKeeper. That is why I’m complaining.

I’m entitled to receive JobKeeper & my employer was responsible for nominating me along with their other employees. I have been asking them to get their accountant to process it but he has ignored all requests saying I’m not entitled. How is this fair? And Fair Work should be able to force them on my behalf. I’m still employed as I’ve not received any notice otherwise.” 

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

[9] The dispute Ms Barrett describes in her application is a dispute with the Respondent about her eligibility for JobKeeper payments. It is not a dispute about the operation of Part 6-4C, which 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.

[10] 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.

[11] 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.

[12] 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.

[13] 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.

[14] 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.

[15] 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

Printed by authority of the Commonwealth Government Printer

<PR721061>