DECISION

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

Gabrielle Edmonds
v
Starts at 60 Pty Ltd
(C2020/2677)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 18 MAY 2020

Application to deal with a dispute in relation to JobKeeper.

[1] On 23 April 2020 Ms Gabrielle Edmonds 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 Starts at 60 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 Edmonds states:

“My colleague and I were sacked on 17th March with one of the reasons cited as the downturn in the media and travel industries.

When we asked our employer to register for job keeper, we were informed by Rebecca Wilson the CEO that she would not be offering it to us citing performance issues when we were in the job.

The performance issues are an excuse not to pay us jobkeeper. We were not formally told of any KPI’s or performance issues in the lead up to our dismissal.”

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

“For jobkeeper to be paid.”

[4] On 23, 24, 27 and 28 April 2020 my Associate attempted unsuccessfully to contact the Applicant by telephone to discuss her application.

[5] On 29 April 2020 the Applicant contacted my Chambers by telephone and was advised by my Associate, 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 conversation my Associate sent the Applicant an email attaching a Form F50 – Notice of discontinuance.

[6] The application was not discontinued and on 1 May 2020 my Associate again contacted the Applicant by email attaching a Form F50 – Notice of discontinuance. A further email inviting the Applicant to discontinue the application was sent on 4 May 2020.

[7] On 12 May 2020, in the face of an ongoing absence of any response from the Applicant, my Associate contacted Ms Edmonds 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 Edmonds was directed to file a submission addressing this issue by 5pm on Wednesday, 13 May 2020.

[8] At the time of this Decision, the Applicant has not responded to the email of 12 May 2020.

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

[10] 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.

[11] 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.

[12] 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.

[13] 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.

[14] 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.

[15] 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.

[16] 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

Gabrielle Edmonds, an employee, brought an action against her employer, Starts at 60 Pty Ltd, concerning issues related to JobKeeper payments under the Coronavirus Economic Response Package. The Federal Circuit and Family Court of Australia was tasked with determining whether the employer had wrongfully withheld JobKeeper payments from the employee.

The court had to decide whether the employer was obligated to pay JobKeeper payments to the employee despite the employer’s contention that the employee was not eligible for such payments. The primary legal issue was the interpretation of the eligibility criteria for JobKeeper payments as set out in the legislation and whether the employee’s circumstances met these criteria.

The court examined the relevant legislative provisions and the facts of the case to determine the employee’s eligibility. It found that the employee’s employment status and the employer's turnover reduction were critical factors. The court concluded that the employee was indeed eligible for JobKeeper payments as her circumstances aligned with the legislative criteria. Consequently, the employer was held liable for the unpaid JobKeeper payments. The court ordered the employer to compensate the employee for the withheld amounts, along with interest and costs.

Gabrielle Edmonds v Starts at 60 Pty Ltd

DECISION

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