James Ridgeway v YMCA Aquatic Event Services Limited

[2020] FWC 2518

[2020] FWC 2518

FAIR WORK COMMISSION

REASONS FOR DECISION

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

James Ridgeway
v
YMCA Aquatic Event Services Limited
(C2020/2613)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 14 MAY 2020

Application to deal with a dispute in relation to JobKeeper.

[1] Mr James Ridgeway 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 YMCA Aquatic Event Services Limited, 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:

“I am disputing my employer’s determination that I am ineligible for JobKeeper payment.”

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

“I want my employer to confirm my eligibility for the JobKeeper payment based upon ATO and Fair Work published criteria and guidelines and to pay me the entitlement effective 30 March 2020 and beyond.”

[10] During oral argument, Mr Ridgeway also contended that his dispute concerned a complaint about discrimination by the Respondent in its decision to accept some casual employees as “eligible employees” for the JobKeeper scheme, but excluding others including him. Putting to one side the absence of an identifiable protected attribute upon which to found the allegation, complaints about unlawful discrimination or about contraventions of the general protections provision of the Act are not matters that concern a dispute about the operation of Part 6-4C of the Act. Such complaints need to be pursued through other applications under the Act or under applicable anti-discrimination legislation.

[11] The dispute the subject of Mr Ridgeway’s application is not 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:

J Ridgeway, for the Applicant
A Crocker, Counsel for the Respondent

Hearing details:

2020
Melbourne
13 May

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