Mark Quinn v Whiteman Family Trust T/A JDC Information Systems

[2020] FWC 3117

[2020] FWC 3117

FAIR WORK COMMISSION

DECISION

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

Mark Quinn
v
Whiteman Family Trust T/A JDC Information Systems
(C2020/4535)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 15 JUNE 2020

Application to deal with a dispute in relation to JobKeeper.

[1] On 11 June 2020,Mr Mark Quinn 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 Whiteman Family Trust t/a JDC Information Systems, the Applicant’s former 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 Quinn relevantly states:

“When the jobkeeper allowance was announced I asked Jen if they were getting jobkeeper and she told me that she was not. I asked this same question a number of times during April. At the beginning of June, I found out that they had in fact been granted jobkeeper. I have asked for a refund of the amounts that were taken from my annual leave for the difference between the hours worked and the $750 jobkeeper allowance from the date they were eligible, being 30 March. This has been refused. In effect my employer has kept an allowance which is rightfully mine. I have since been summarily dismissed for arguing that it is unlawful to withhold my jobkeeper allowance.”

[3] On 11 June 2020 Commission staff contacted the Applicant’s representative, Ms Margaret Lomas, by telephone to advise that the Commission may only deal with disputes about the operation of Part 6-4C of the Act on application by an employee, an employer, an employee organisation or an employer organisation. Ms Lomas was informed that as the Applicant is no longer an employee of the Respondent, the Commission lacks jurisdiction to deal with the matter and was invited to discontinue the application. Ms Lomas advised that the Applicant wished to proceed with the application.

[4] During the same telephone call, Ms Lomas informed the Commission that the Applicant had filed an unfair dismissal application in respect of the Applicant’s alleged dismissal by the Respondent.

[5] On the same day, Commission staff sent a follow-up email to Ms Lomas acknowledging the Applicant’s wish to continue the application and including instructions on how to discontinue the application should she change her mind. A Form F50—Notice of discontinuance was attached. Later that day Ms Lomas replied to the email, re-iterating the Applicant’s intention to proceed with the application.

[6] On 12 June 2020 Commission staff contacted Ms Lomas by telephone, explaining how the application would be dealt with by the Commission and that the Applicant would be directed to file a submission addressing jurisdiction. Ms Lomas asked if the Applicant could withdraw the application after the direction was issued and was advised that the application could be withdrawn at any time. Ms Lomas advised that she would speak with the Applicant and inform the Commission if he decides to withdraw the application. Immediately following this telephone call, Ms Lomas was sent an email directing the Applicant to file a submission addressing jurisdiction by 5.00 PM on Saturday, 13 June 2020.

[7] No submission was received by or on behalf of the Applicant.

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.

[8] Section 789GV(3) of the Act states that the Commission may deal with a dispute only on application by an employee, an employer, an employee organisation or an employer organisation. “Employee” in s 789GV(3) means a national system employee. 1 The Applicant was not an employee of the employer with which there is said to be a dispute about the operation of Part 6-4C of the Act at the time he made this application because he had already been dismissed. He is not relevantly, a national system employee because he is not, at the time he made the application, employed or usually employed by a national system employer. The Applicant does not have standing to apply to the Commission to deal with a dispute under s 789GV.On the face of the allegations contained in the application a number of other applications to the Commission or to the Court might be available but this application is not one of them. The application is therefore dismissed.

DEPUTY PRESIDENT

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 1   See Fair Work Act 2009 ss 13 and 789GC