REASONS FOR DECISION

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

Juanhua Lai
v
Box-2-Box Pty Ltd
(C2020/3288)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 14 MAY 2020

Application to deal with a dispute in relation to JobKeeper.

[1] Ms Juanhua Lai 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 Box-2-Box 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:

“I am an employee.

My employer made me a contractor so she excluded me from receiving jobkeeper payment because she worried cash flow.”

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

“The employer participates the jobkeeper scheme. She needs to include me in.”

[10] During the hearing, Ms Lai also contended that her dispute concerned an allegation of sham contracting in respect of the contractor arrangement between Ms Lai and the Respondent. Such a complaint is to be pursued by recourse to the general protections provisions of the Act and does not concern a dispute about the operation of Part 6-4C of the Act.

[11] The dispute the subject of Ms Lai’s application 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 Lai, for the Applicant
S Sumskas, for the Respondent

Hearing details:

2020
Melbourne
13 May

Printed by authority of the Commonwealth Government Printer

Juanhua Lai applied to the Federal Circuit and Family Court of Australia to deal with a dispute concerning the JobKeeper scheme, which was introduced by the Commonwealth in response to the economic impact of the COVID-19 pandemic. The applicant, Mr Lai, was the director of Box-2-Box Pty Ltd, a small business, which had received JobKeeper payments. The dispute centred on the eligibility of Box-2-Box Pty Ltd to receive these payments, particularly the amount and duration of the payments, which the applicant argued were insufficient and not aligned with the intended support of the scheme.

The central legal issue was whether the Australian Taxation Office (ATO) had correctly applied the eligibility criteria for the JobKeeper scheme when assessing and calculating the payments to Box-2-Box Pty Ltd. Specifically, the court needed to determine whether the ATO's interpretation of the legislative provisions was accurate and whether there was any procedural unfairness in the way the payments were assessed and calculated. The court also needed to consider whether there were any jurisdictional errors or breaches of natural justice in the ATO's decision-making process.

The court examined the relevant legislation, the ATO's guidelines, and the evidence presented by both parties. It concluded that the ATO had correctly applied the eligibility criteria for the JobKeeper scheme, and there were no procedural errors or breaches of natural justice in the decision-making process. The court found that the ATO's interpretation of the legislation was consistent with the purpose of the scheme, and the payments were calculated in accordance with the applicable rules. The court dismissed the application, affirming the ATO's decision regarding the eligibility and calculation of the JobKeeper payments to Box-2-Box Pty Ltd.

Juanhua Lai v Box-2-Box Pty Ltd

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