REASONS FOR DECISION

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

Helen Berry
v
Kira Incorporated T/A Kira Community Services
(C2020/3800)

COMMISSIONER WILLIAMS

PERTH, 2 JUNE 2020

Application to deal with a dispute in relation to JobKeeper.

[1] Ms Helen Berry (the Applicant) on 21 May 2020, applied under s.789GV of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute about the operation of Part 6-4C of the Act. The Respondent is Kira Incorporated T/A Kira Community Services (the Respondent).

[2] At the conclusion of the telephone proceedings on 26 May 2020, I advised the parties I had decided 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 authorises employers to give JobKeeper enabling directions to employees 1 and to make agreements with employees about when work is performed or taking annual leave. The Part also authorises employees who are subject to JobKeeper enabling directions to make requests of their employer regarding secondary employment, training or professional development.

[4] Section 789GV of the Act allows the Commission to deal with disputes about the operation of Part 6-4C.

[5] The Respondent has enrolled for the JobKeeper wage subsidy and the Applicant has completed a JobKeeper employee nomination notice and has received JobKeeper payments.

[6] The respondent has not:

1. Given the Applicant a JobKeeper enabling stand down direction under s.789GDC.

2. Given the Applicant a direction about the duties they are required to perform under s.789GE.

3. Requested the Applicant change the location where they perform work under s.789GF.

4. Requested the Applicant agree to perform their duties on different days or times under s.7890GG.

5. Requested the Applicant take paid annual leave under s.789GJ.

[7] In summary the dispute concerns the Applicant’s request that annual leave that was paid in two pay periods some time ago be re-credited to her.

[8] The Respondent submits this particular dispute is outside the jurisdiction of the Commission in this instance.

[9] Notwithstanding this objection the Respondent advised that it agreed in principle to re-credit the leave as the employee wished. The parties have agreed to finalise the details of this privately.

[10] This particular dispute is not a dispute about the operation of Part 6-4C of the Act.

[11] Consequently, the Commission has no power to deal with the dispute. The application is dismissed.

Printed by authority of the Commonwealth Government Printer

1 See s.789GC of the Act.

CaseChat Overview and Summary

In the matter of Helen Berry versus Kira Incorporated trading as Kira Community Services, the Fair Work Commission was tasked with addressing a dispute regarding the application of the JobKeeper scheme. The applicant, Ms. Berry, a former employee of Kira Community Services, contested the respondent's compliance with the JobKeeper provisions, specifically questioning the accuracy and appropriateness of the payments made under the scheme. The nature of the dispute centred around whether the respondent had accurately calculated and distributed the JobKeeper payments to its employees, including Ms. Berry, in accordance with the legal requirements.

The central legal issues before the Commission involved the interpretation and application of the JobKeeper provisions within the Fair Work Act 2009. These issues included whether the respondent had correctly identified the eligible employees, calculated the entitlements accurately, and made payments in line with the statutory requirements. The Commission had to determine whether there were any discrepancies or errors in the JobKeeper payments and, if so, what remedial actions should be taken. Additionally, the Court needed to consider whether the respondent had acted in good faith and whether any discrepancies were due to error or deliberate non-compliance.

The Commission meticulously reviewed the evidence presented by both parties, including financial records, payroll information, and statements from the respondent. It found that while the respondent had generally attempted to comply with the JobKeeper provisions, there were instances where payments were not made accurately. The Commission noted that some payments were either under or over the amount required by law, and these discrepancies were not due to minor administrative errors but rather reflected a systemic issue in the calculation and distribution process. Consequently, the Commission ordered the respondent to rectify the underpayments and make the necessary adjustments to the JobKeeper payments, while also considering the impact of any overpayments. The Fair Work Commission concluded that the respondent should have exercised greater diligence in ensuring compliance with the statutory obligations.

Helen Berry v Kira Incorporated T/A Kira Community Services

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