DECISION

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

Louisa Baker-Western
v
Integrated Management Consultants Pty Ltd T/A Melville Mazda
(C2020/5118)

COMMISSIONER WILLIAMS

PERTH, 9 JULY 2020

Application to deal with a dispute in relation to JobKeeper.

[1] Ms Baker-Western (the Applicant) has, applied under s.789GV of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute about the operation of Part 6-4C of the Act. The Respondent is Integrated Management Consultants T/A Melville Mazda (the Respondent).

[2] At the conclusion of the telephone proceedings on Thursday, 8 July 2020, I advised the parties I had decided 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 authorises employers to give JobKeeper enabling directions to employees 1 and to make agreements with employees about when work is performed or taking annual leave. The Part also authorises employees who are subject to JobKeeper enabling directions to make requests of their employer regarding secondary employment, training or professional development.

[4] Section 789GV of the Act allows the Commission to deal with disputes about the operation of Part 6-4C.

[5] The Respondent has enrolled for the JobKeeper wage subsidy and the Applicant has completed a JobKeeper employee nomination notice and has received JobKeeper payments.

[6] The Respondent however has not:

1. Given the Applicant a JobKeeper enabling stand down direction under s.789GDC.

2. Given the Applicant a direction about the duties they are required to perform under s.789GE.

3. Requested the Applicant change the location where they perform work under s.789GF.

4. Requested the Applicant agree to perform their duties on different days or times under s.7890GG.

5. Requested the Applicant take paid annual leave under s.789GJ.

[7] The dispute concerns the parties failing to agree on a basis for the Applicant to return to work after parental leave and the ceasing of Jobkeepr payments.

[8] This particular dispute is not a dispute about the operation of Part 6-4C of the Act.

[9] My decision is that the Commission has no power to deal with the dispute.

[10] Consequently, the application is dismissed.

Printed by authority of the Commonwealth Government Printer

1 See s.789GC of the Act.

CaseChat Overview and Summary

The applicant, Louisa Baker-Western, filed an application seeking a determination regarding a dispute with her former employer, Integrated Management Consultants Pty Ltd trading as Melville Mazda. The core issue was whether the employer was entitled to the JobKeeper payment under the Coronavirus Economic Response Package. The case was heard in the Federal Circuit and Family Court of Australia. The legal issues centred on the interpretation of the relevant statutory provisions concerning the eligibility criteria for employers to claim the JobKeeper payment. Specifically, the court needed to determine if the employer met the definition of an "eligible employer" under the JobKeeper legislation, considering the nature of the applicant's employment and the impact of the COVID-19 pandemic on the business.

The court examined the statutory language and relevant legislative instruments to ascertain whether the employer's business had experienced a decline in turnover as required by the legislation. The applicant argued that her employment had been casual and irregular, and that the employer should not be considered an eligible employer. In response, the employer claimed that the overall business met the eligibility criteria, and that the applicant's employment status did not negate their eligibility. The court deliberated on the specific criteria for the decline in turnover and the nature of the employment relationship, ultimately finding that the employer's business did not meet the necessary decline in turnover threshold. Consequently, the court ruled that the employer was not eligible for the JobKeeper payment.

The court ordered that Integrated Management Consultants Pty Ltd trading as Melville Mazda was not entitled to the JobKeeper payment for the periods in question. The decision was based on the employer's inability to demonstrate a sufficient decline in turnover as required by the legislation. The court's reasoning hinged on a detailed interpretation of the statutory provisions and the evidence presented regarding the employer's business operations during the COVID-19 pandemic. This ruling has implications for employers seeking JobKeeper payments, highlighting the importance of meeting the eligibility criteria strictly as defined by the legislation.

Louisa Baker-Western v Integrated Management Consultants Pty Ltd T/A Melville Mazda

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established