James Peters v MCM Logistics Pty Ltd

[2020] FWC 3471

[2020] FWC 3471

FAIR WORK COMMISSION

REASONS FOR DECISION

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

James Peters
v
MCM Logistics Pty Ltd
(C2020/4638)

COMMISSIONER LEE MELBOURNE, 3 JULY 2020

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

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 24 June 2020.

[2] Mr James Peters (the Applicant) has 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 MCM Logistics Pty Ltd, the Applicant’s employer.

[3] This is a decision in respect of a JobKeeper dispute application that has been made by the Applicant. In terms of framing what the dispute is about, in answer to Question 2.1 in the Form F13A application that was lodged, the Applicant ticked the box that said “Other”.

[4] In respect to answers to Question 2.2 in the Form F13A, “What is the dispute about?”, the Applicant has put that, amongst other things, on 13 May 2020 casual employees signed the JobKeeper employment nomination notice. Since that date only two JobKeeper payments have been paid from MCM Logistics Pty Ltd (MCM). MCM are claiming they are not bound to backpay employees from 13 March 2020, “as we did not work those weeks.” The first element was an issue of backpay:

“Since we have started working again they have still failed to backpay the correct amounts to employees. I am currently owed $3946.49 as of the 8th of June. MCM has sent through payslips with the amounts they were meant to backpay employees yet those amounts never came into our bank accounts, when asking the accountant he claimed he reversed those payments as we were not entitled to the amount as we did not usually earn $750 per week.”

[5] References were also made to what Mr Brierly, of the Respondent, allegedly said about if the employees were not being rostered on they would not receive the JobKeeper payment and a further complaint that there had not been sufficient payment for various hours that had been worked. As to how the dispute was to be solved, the Applicant put that he would like to be paid the amount he is owed while continuing to work his allocated shifts at MCM. In essence, it was a claim for unpaid wages.

[6] Prior to the earlier conference, the Respondent forwarded a document dated 16 June 2020 which set out that long-term casual employees qualify from 27 April 2020 and that the Respondent had spoken with the Applicant and that they were not claiming the JobKeeper amount and the individual was not being paid. Most relevantly from that correspondence, Mr Brierly indicated that further investigation by the Respondent internally had shown the Applicant was “enrolled” on 25 February 2019 but that he did not officially work for MCM until his first shift dated 18 October 2019. Therefore, in the view of Mr Brierly, that made the Applicant ineligible for JobKeeper, as he did not qualify for the scheme based on his tenure being less than one year with MCM, no regularity or systematic work schedule. Mr Brierly said it was an oversight on the part of MCM business caused by enrolment paperwork which was dated 25 February 2019 to1 March 2020, a 12-month qualifying period which caused the confusion. In the material that the Applicant has filed today, to which I have had regard, that has included references to the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020, in particular s.9(6)(b) and assertions are made about the nature of the Applicant’s employment prior to 1 March 2020 and the associated relationships between his employer at that time and MCM.

[7] No doubt a factual dispute could potentially be resolved on that matter, however for the purposes of today it is not necessary for me to deal with that. The Applicant also indicated in the correspondence that was forwarded on Wednesday, 17 June 2020 that whether or not he was an eligible employee remained an issue in dispute. He has put that at no point in the last three months had the Respondent contended “I was not an eligible employee”, and that Mr Brierly and the accountant for MCM had on a number of occasions confirmed that he was not entitled to any payments unless he actually worked during a particular fortnight.

[8] Relevantly, the correspondence of 17 June 2020 sets out the reason for bringing the application is to draw the Respondent’s attention to the requirements to satisfy the JobKeeper wage condition requirements set out in ss.789GD and 789GDA of the Act and that given the Respondent has been receiving JobKeeper payments that the Applicant’s contention is they have a requirement to ensure “I’m paid the minimum payment guarantee provided for by section 789DGA”. I note that I am sure what the Applicant meant was “GDA”.

[9] When I asked the Applicant is his position that he says MCM are not complying with s.789GDA of the Act, he agreed with that proposition. He agreed that as a result of that he asserts that he is underpaid and when I put to him that he wants orders made that compel the Employer to comply with that section he agreed that was why he wanted those orders made. The Respondent provided further correspondence prior to the hearing dated 23 June 2020 which updated the position in terms of eligibility from the employer’s perspective. Relevantly, what that correspondence says is the Applicant does not qualify for the JobKeeper scheme, that he completed forms before March 2020 and so on.

[10] It is not necessary for me to set out the basis of what the Respondent puts there but essentially, the import of it is that, Mr Brierly, asserts that the Applicant does not qualify for the JobKeeper scheme. Mr Brierly acknowledges the error surrounding the qualification date in the previous response and says that it has only been through further investigation that the qualification date work schedule has been ratified. Mr Brierly disputes that the employer has claimed JobKeeper payments on behalf of the Applicant and has not passed them on.

[11] Now that the Respondent has identified the Applicant does not qualify for the JobKeeper Scheme, he has been paid top-up monies which are now refundable. There was an indication also given about a way in which the dispute could be resolved, and we discussed that in conference prior to the hearing and the Applicant elected not to pursue that option, as the Applicant absolutely had the right to do so. I note the Applicant provided a series of payslips, both with his original application and in recent days. It is not necessary in the circumstances, which will become clear, for me to deal with those.

[12] I note that the matter was previously listed for a conference and at that conference there was a discussion about the way the JobKeeper scheme operated and the role of the Commission in resolving disputes. Nonetheless, the Applicant has determined that he wanted to pursue the matter, as is his right to do so, though I will make some comments about that at the conclusion of this decision. It is apparent that from what I have said in the foregoing that what the Applicant seeks is orders that would have the effect of enforcing the existing provisions of s. 789GDA of the Act.

[13] It is also apparent that these orders are sought because it is plain the dispute is about the alleged underpayment of JobKeeper and fundamentally the dispute is also now about whether or not the Applicant is eligible at all for the JobKeeper payment. I decline to make the orders sought by the Applicant for two reasons. I am dismissing this application for want of jurisdiction. The reasons I am doing that are as follows:

[14] Firstly, as I stated earlier, the orders sought are in effect directed at ordering the company to make good on alleged underpayments. This is not within the jurisdiction of the Commission in respect to the JobKeeper jurisdiction. If the employer does not meet the minimum payment guarantee they contravene the civil remedy provision. A civil remedy provision is a provision of the Act that if breached means that the person affected can apply to the court for an order for a financial penalty against the alleged wrongdoer or any other order the court considers appropriate, such as an injunction. It is not a matter that is within the jurisdiction of this Commission.

[15] Secondly, and in any case, the orders sought pre-suppose that the Applicant is entitled to be eligible under the JobKeeper payment scheme. That is quite clearly a matter in dispute. The Commission cannot assist with disputes about decisions of the Commissioner of Taxation as to whether an employer is entitled to receive JobKeeper payments. Objections to such decisions are dealt with in the manner set out in Part IVC of the Taxation Administration Act 1953. This includes review by the Administrative Appeals Tribunal and appeal to the Federal Court of Australia.

[16] For the benefit of the Applicant, the information on disputes about JobKeeper eligibility are on the Australian Taxation Office’s website. For these reasons, the application is clearly without the necessary jurisdiction, having regard to the disputes that it seeks to resolve. For that reason, the application is dismissed.

COMMISSIONER

Appearances:

Mr J Peters on his own behalf

Mr D. Brierly for the Respondent

Hearing details:

2020

Melbourne (by telephone)

24 June

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