Lilly Hatton v Harbour Guidance Pty Ltd

[2020] FWC 2566

[2020] FWC 2566

FAIR WORK COMMISSION

DECISION

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

Lilly Hatton
v
Harbour Guidance Pty Ltd
(C2020/3079)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 18 MAY 2020

Application to deal with a dispute in relation to JobKeeper.

[1] On 1 May 2020 Ms Lilly Hatton 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 Harbour Guidance Pty Ltd, 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, Ms Hatton relevantly states:

“Employer claims that due to the business changing ownership on the 17/3/2020 that our “application for the JobKeeper payment is more complex than anticipated” (see 1a) and that they “have consulted two professional firms, the advice received was inconclusive- for a company to be eligible, it needed to be in operation on or before March 1, it is not the case of Harbour Guidance”(see 1b)…”

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

“For this dispute to be solved the ATO and fairwork should consider the employees of Jeanswest who meet the employment criteria themselves to receive the Jobkeeper payments back dated to the 30th of March…”

[4] On 1 May 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 4 May 2020 my Associate emailed the Applicant again attaching a Form F50 – Notice of discontinuance.

[6] On 7 May 2020 my Associate attempted unsuccessfully to contact the Applicant by telephone to ascertain whether she 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 Ms Hatton by email indicating that on the face of the application lodged the dispute about which she complained did not appear to be within the Commission’s jurisdiction. Ms Hatton 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 Ms Hatton’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

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