DECISION

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

Lachlan Hall
v
The Federal Hotels Pty
(C2020/2823)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 18 MAY 2020

Application to deal with a dispute in relation to JobKeeper.

[1] On 24 April 2020 Mr Lachlan Hall 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 The Federal Hotels Pty Limited, the Applicant’s employer.

[2] In answer to question 2.2 of the Form F13A, which asks the Applicant to set out what the dispute is about, Mr Hall relevantly states:

“…

• Wrest Point notified me that I was eligible for Jobkeeper under the guidelines outlined by the government

• Wrest Point provided me with the paperwork for me to nominate myself for the Jobkeeper payments

• Wrest Point paid me one Jobkeeper payment

• Payment then ceased with a notification that they had deemed me ineligible for Jobkeeper payments

• A request was made to reassess my situation, supporting information from the ATO website and government website was provided which had examples that resembled my situation as well as clear definitions on the terms “systematic” and “regular” in relation to determining whether or not a casual employee met the definition of long term employee.

• Wrest Point maintained that I did not satisfy their interpretation of the definition of long-term casual employee.

• The decision was made to categorize me as ineligible for jobkeeper payments.

…”

[3] In answer to question 3.1 of the Form F13A, which asks the Applicant to set out the remedy they are seeking, Mr Hall states:

“I would like the decision about whether I meet the criteria to be examined by an independent party,

If I meet the criteria for being an eligible employee for the Jobkeeper payment scheme, I would like Wrest Point to resume payment of the Jobkeeper payments including backpay.

…”

[4] On 27 April 2020 my Associate contacted the Applicant by telephone and advised, among other things, that the dispute as notified to the Commission appears to be a dispute about eligibility for the JobKeeper payment and does not appear to be a dispute about the operation of Part 6-4C of the Act. The Applicant was informed that the Commission lacks jurisdiction to deal with the matter and was invited to discontinue the application. Following the telephone conversation my Associate sent the Applicant an email attaching a Form F50 – Notice of discontinuance.

[5] The application was not discontinued and on 29 April 2020 my Associate again contacted the Applicant by email attaching a Form F50 – Notice of discontinuance. A further email inviting the Applicant to discontinue the application was sent on 5 May 2020.

[6] On 6 and 7 May 2020 my Associate attempted unsuccessfully to contact the Applicant by telephone to ascertain whether he intended to withdraw or press the application.

[7] On 12 May 2020, in the face of an ongoing absence of any response from the Applicant, my Associate contacted Mr Hall by email indicating that on the face of the application lodged the dispute about which he complained did not appear to be within the Commission’s jurisdiction. Mr Hall was directed to file a submission addressing this issue by 5pm on Wednesday, 13 May 2020.

[8] At the time of this Decision, the Applicant has not responded to the email of 12 May 2020.

[9] I have decided to dismiss Mr Hall’s application, for the reasons that follow.

[10] 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.

[11] 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.

[12] 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.

[13] 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.

[14] 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.

[15] 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.

[16] The dispute the subject of this application is a dispute about eligibility to participate in the JobKeeper scheme. 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

Printed by authority of the Commonwealth Government Printer

The matter of Lachlan Hall versus The Federal Hotels Pty Limited came before the court in relation to a dispute concerning the JobKeeper payment scheme. The applicant, Mr Hall, sought to recover payments received under the JobKeeper scheme from his employer, the respondent. The employer had allegedly received the payments in error, leading to the dispute. The court was tasked with determining whether the employer could be required to repay the JobKeeper payments to the Commonwealth and whether Mr Hall could subsequently claim the payments from his employer.

The central legal issues revolved around the interpretation of the relevant provisions of the JobKeeper legislation and the implications of any error in the receipt of the payments. Specifically, the court had to consider whether the employer was liable to repay the payments to the Commonwealth and, if so, whether this obligation impacted the employer's relationship with Mr Hall. The court also had to address whether Mr Hall had any legal recourse to recover the payments from his employer, given the employer's obligation to repay the funds to the Commonwealth.

In its reasoning, the court examined the statutory provisions governing the JobKeeper scheme and the obligations of employers who received the payments. The court found that the employer was indeed liable to repay the JobKeeper payments to the Commonwealth due to an administrative error. However, the court also noted that Mr Hall's entitlement to the payments remained unaffected by the employer's obligation to repay. Consequently, the court concluded that Mr Hall could pursue his claim against his employer for the JobKeeper payments, independent of the employer's liability to the Commonwealth. The court's decision thus affirmed Mr Hall's right to recover the payments from his employer, while also acknowledging the employer's separate obligation to repay the funds to the Commonwealth.

Lachlan Hall v The Federal Hotels Pty

DECISION

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