REASONS FOR DECISION

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

Jason Hook-Davies
v
KONING & KONING PTY. LTD.
(C2020/3372)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 14 MAY 2020

Application to deal with a dispute in relation to JobKeeper.

[1] Mr Jason Hook-Davies 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 KONING & KONING PTY. LTD., 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 have been overlooked but certainly qualify for jobkeeper…”

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

“I would like my shifts at work back when they become available and also lost wages to be back paid as my employer has had enough correspondence to get the correct outcome with me qualifying for Jobkeeper”.

[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:

J Hook-Davies and W Davies, for the Applicant
R Fitzgerald and T Fitzgerald, for the Respondent

Hearing details:

2020
Melbourne
13 May

Printed by authority of the Commonwealth Government Printer

Jason Hook-Davies commenced proceedings in the Federal Circuit and Family Court of Australia against Koning & Koning Pty Ltd, his former employer, in relation to the payment of JobKeeper. The JobKeeper Payment was an initiative of the Australian government to assist businesses to retain employees during the COVID-19 pandemic. Mr Hook-Davies claimed that his employer had failed to pay him his full entitlements under the JobKeeper scheme. Koning & Koning Pty Ltd, on the other hand, argued that it had acted in accordance with the relevant legislative provisions and had made all required payments to Mr Hook-Davies.

The central legal issue before the court was whether the employer had properly calculated and paid the JobKeeper payments to the applicant. The court needed to consider the statutory provisions governing the JobKeeper scheme, including the eligibility criteria for employees and the calculation of payments. Additionally, the court examined the employer's records and the specific circumstances of the applicant's employment to determine if there had been any breaches of the JobKeeper provisions.

The court found that the employer had indeed failed to calculate and pay the correct amount of JobKeeper to Mr Hook-Davies. It was determined that the employer had made errors in the calculation of the payments, resulting in underpayments. The court considered the employer's failure to rectify these errors despite being aware of the discrepancies. The court concluded that the employer was liable for the underpaid JobKeeper amounts and ordered the employer to pay the outstanding sum to Mr Hook-Davies, along with interest and costs.

Jason Hook-Davies v Koning & Koning Pty Ltd

REASONS FOR DECISION

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