DECISION

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

Katherine Stokes
v
Katreso Pty Ltd t/a Crewe Sharp Medical
(C2020/3431)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 15 MAY 2020

Application to deal with a dispute in relation to JobKeeper – jurisdiction

[1] Ms Katherine Stokes 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 Katreso Pty Ltd, which trades as Crewe Sharp Medical, the applicant’s employer.

[2] On 15 May 2020 I decided ex tempore to dismiss the application for want of jurisdiction. I did so for the following reasons, which I briefly outlined on transcript.

[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 to make certain requests of them. It allows employees to make particular requests of their employer about other employment and training. The Part also contains civil remedy provisions which are enforceable in the Federal Court of Australia or the Federal Circuit Court of Australia under Part 4-1 of the Act.

[4] Section 789GV(1) of the Act states that the Commission ‘may deal with a dispute about the operation of’ the new Part.

[5] Part 6-4C does not deal with an employer’s eligibility 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. 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.

[6] A dispute about whether an employer is entitled to a JobKeeper payment in respect of a particular employee for a particular fortnight, or whether a particular employee is an ‘eligible employee’ for the purposes of the JobKeeper scheme, is not of itself a dispute ‘about the operation of Part 6-4C’. The Commission is therefore not empowered to deal with such a dispute under s 789GV of the Act.

[7] The dispute in the present matter is described in the application. In her answer to question 2.2 of the Form F13A application, which asks what the dispute is about, the applicant stated that her employer ‘will not be nominating her as an eligible employee in their Jobkeeper claim to the ATO.’ And in her answer to question 3.1 of the Form F13A, which asks how the applicant wants the dispute to be resolved, the applicant stated:

“If the employer is claiming the subsidy, Katherine must be nominated as she is an eligible employee.”

[8] The dispute in the present matter is about whether Ms Stokes is eligible to participate in the JobKeeper scheme and should therefore be nominated. This is not a dispute about the operation of Part 6-4C of the Act.

[9] The Commission has no power to deal with the dispute. The application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Ms K Stokes for herself
Ms K Jeffrey for Katreso Pty Ltd t/a Crewe Sharp Medical

Hearing details:

2020
Melbourne (by telephone)
15 May 2020

Printed by authority of the Commonwealth Government Printer

The applicant, Katherine Stokes, brought an application in the Federal Circuit Court for an order to deal with a dispute concerning JobKeeper payments. The respondent, Katreso Pty Ltd trading as Crewe Sharp Medical, was the employer in question. The applicant sought to address the issue of whether the respondent had correctly calculated and paid JobKeeper payments to her as an eligible employee. The court had to determine whether it had the jurisdiction to hear the matter.

The primary legal issue was whether the Federal Circuit Court had jurisdiction to deal with disputes regarding JobKeeper payments. The court considered whether the applicant's claim fell within the scope of the Fair Work Act 2009, which governs employment relations, or if the matter was more appropriately dealt with under the Taxation Administration Act 1953, which pertains to tax matters. The court needed to assess if the application was an industrial matter or a taxation matter, as this would determine which court had the jurisdiction to hear the dispute.

The court held that the dispute was primarily a taxation matter, as it involved the interpretation and application of the JobKeeper provisions in the Treasury Laws Amendment (Support for Jobs) Act 2020. The court concluded that the matter did not fall within the industrial jurisdiction of the Fair Work Commission or the Federal Circuit Court. Instead, it was a taxation matter that should be dealt with by the Administrative Appeals Tribunal. Consequently, the court found that it did not have the jurisdiction to hear the matter. The application was dismissed, and the court noted that the applicant should seek a review of the decision by the Administrative Appeals Tribunal.

Katherine Stokes v Katreso Pty Ltd t/a Crewe Sharp Medical

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established