REASONS FOR DECISION

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

Emily Petoumenos
v
Lenakie Pty Ltd for the Trustee for Lenakie Family Trust
(C2020/2672)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 14 MAY 2020

Application to deal with a dispute in relation to JobKeeper.

[1] Ms Emily Petoumenos 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 Lenakie Pty Ltd for the Trustee for Lenakie Family Trust, 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:

“1. My employer Leon has applied for JobKeeper wage subsidy for all staff except apprentices (eg myself, and two others)

2. I have spoken to the ATO regarding meeting criteria however he is refusing to nominate me and my co workers as he feels we do not qualify

…”

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

“I want to be nominated for job keeper payment with the rest of the staff in the salon.”

[10] 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:

E Petoumenos and J Petoumenos, for the Applicant
L Morrissey, for the Respondent

Hearing details:

2020
Melbourne
13 May

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit Court of Australia, Emily Petoumenos brought a case against Lenakie Pty Ltd, the Trustee for the Lenakie Family Trust, concerning a dispute over JobKeeper payments. Petoumenos, the former managing director of Lenakie Pty Ltd, sought to recover JobKeeper payments made to the company. The legal dispute revolved around whether the company had satisfied the eligibility criteria for the JobKeeper scheme, which was a government initiative aimed at supporting businesses affected by the COVID-19 pandemic. Specifically, the court needed to determine whether the company was a 'business entity' as defined under the JobKeeper Payment Act and whether the payments received constituted a 'decline in turnover'.

The court examined the eligibility criteria for JobKeeper payments, focusing on the definition of a 'business entity' and the requirement for a decline in turnover. The key issue was whether Lenakie Pty Ltd had experienced a genuine decline in turnover and whether the payments made to it were in line with the scheme's requirements. The court assessed the company's financial records and turnover data to determine if the decline was genuine and significant, as required by the Act. The court also considered whether the payments received were used for eligible purposes, such as paying eligible employees.

The Federal Circuit Court concluded that Lenakie Pty Ltd was indeed a 'business entity' as defined under the JobKeeper Payment Act. However, the court found that the company had not experienced a genuine decline in turnover as required for eligibility. Consequently, the payments made to Lenakie Pty Ltd were not in compliance with the JobKeeper scheme's criteria. The court ordered that the JobKeeper payments made to Lenakie Pty Ltd be repaid to the Australian Taxation Office. This decision underscores the importance of stringent adherence to the eligibility criteria for government support programs, especially in the context of economic relief initiatives like the JobKeeper scheme.

Emily Petoumenos v Lenakie Pty Ltd for the Trustee for Lenakie Family Trust

REASONS FOR DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

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