Mr Barry Lawrenson v Hotel Eyre Pty Ltd

[2021] FWC 1443

[2021] FWC 1443

FAIR WORK COMMISSION

DECISION

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

Mr Barry Lawrenson
v
Hotel Eyre Pty Ltd
(C2021/1326)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 17 MARCH 2021

Application to deal with a dispute in relation to JobKeeper

[1] On 10 March 2021 Mr Barry James Lawrenson 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 Hotel Eyre 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, Mr Lawrenson relevantly states:

“The Federal Government has set up a JobKeeper anomaly-loophole that is wrong, unfair and unjust, and allows an employer to discriminate/mistreat an employee by refusing them JobKeeper payments. My employer has wrongly refused to nominate me to the ATO for JobKeeper payments and the ATO cannot determine eligibility for payments if an employee is not nominated, after numerous conversations the FWO, FWC and ATO do not have the authority to resolve this issue and hence unjustly there is no government body to resolve this issue or complain to.

This anomaly-loophole has also allowed my employer to possibly defraud JobKeeper and payments involving a number of employees, and has also led to my personal long term continued retribution/discrimination, as a casual employee in Hospitality at Eyre Hotel Whyalla SA I have not been offered any work or JobKeeper assistance from October 2019 until the present March 2021 due to work injury/discrimination.

The deliberate misuse of this loophole by my employer is also a possible breach of Wage Theft which takes many forms, my employer has possibly breached a number of work areas involving CO/FO/FWC/ATO/Job Keeper/Workcover/Safety/Age Discrimination and I ask you seriously address all these possible breaches, as my employer has completely refused to address them so far on several occasions and requests.

Should this JobKeeper loophole be rectified it would be to the benefit of a vast amount of workers Australia wide.”

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

“The FWC to rectify the unjust JobKeeper loophople [sic] that the Eyre Hotel have taken advantage of, for the benefit of myself and a vast amount of workers Australia wide.

The FWC to investigate/resolve any possible breaches in any areas highlighted in my supporting documents and application caused by the Eyre Hotel Whyalla SA 5600.

The FWC should it be appropriate to pass on responsibility for any breaches to any appropriate authority for investigation, I would be willing to work with any authority to achieve any accountability/responsibility I am entitled too.

My goal is to return to work at Eyre Hotel and to realise any legal/financial recompense I am entitled to due to my long term mistreatment/retribution and deliberate JobKeeper-Wage Theft abuse I have endured from my employer.

For the past 18 months due to a work injury sustained at Eyre Hotel October 2019 I have suffered continuous physical and mental pain, and currently I require a shoulder operation whilst the Eyre Hotel have completely ignored their Workcover/Duty of care responsibilities, I am entitled to a medically healthy shoulder and return to work at Eyre Hotel or anywhere else for that matter.”

[4] On 11 March 2021 Commission staff attempted to contact the Applicant by telephone and left a voice message. On 11 March 2021 Commission staff emailed the Applicant to advise, 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. The emails included instructions on how to discontinue the application and a Form F50—Notice of discontinuance was attached.

[5] On 11 March 2021 the Applicant telephoned and spoke with Commission staff stating that he required further time to decide if he would withdraw. The Applicant was advised to submit an extension of time request in writing. On 11 March 2021 the Applicant emailed the Commission requesting an extension of 1 week. On 11 March 2021 the Commission emailed the Applicant explaining tight JobKeeper dispute timeframes and the Commission’s inability to grant an extension further than 1pm ACDT 12 March 2021.

[6] On 11 March 2021 the Applicant telephoned and spoke with Commission staff where he asked if the Commission could deal with any of the issues he raised in the Application. It was stated to the Applicant that safety laws are generally state-based and therefore dealt with by SafeWork SA. Commission staff stated that we can't give specific advice on the Applicant’s situation and that the Applicant can seek free legal advice to see if there is any relevant section of the Fair Work Act 2009 that applies to his situation. Commission staff explained to the Applicant the process that follows if he continues. The Applicant stated he will think about this overnight and contact the Commission tomorrow about his intentions.

[7] On 12 March 2021 the Applicant emailed the Commission stating he wanted to proceed with his application and wants the Commission to determine that he does qualify for JobKeeper and that he has the right to be nominated for JobKeeper. On 12 March 2021 the Commission emailed the Applicant stating that the Commission does not have the power to determine eligibility or to make the determination he has requested. The Applicant was told that jurisdictional directions would be issued to him shortly.

[8] On 15 March 2021 directions were emailed to the Applicant requesting that he make a submission about whether the Commission has jurisdiction to deal with his dispute under the Fair Work Act 2009 by 4PM ADCT 16 March 2021. On 15 March 2021 Commission staff attempted to telephone the Respondent to advise of the Form F13A application. There was no answer, so Commission staff left a voicemail for the Respondent. On 15 March 2021 the Commission emailed a copy of the Applicant’s Form F13A and supporting documentation to the Respondent.

[9] On 16 March 2021, the Applicant responded to the jurisdictional direction stating:

“…A JobKeeper loophole deliberately set up by the Federal Government is wrong, unjust, and unfair, and contravenes the FWC General Protections, and if corrected would be to the benefit of a vast number of workers Australia wide.

FWC General Protections conditions should cover this JobKeeper loophole and misuse along with a serious number of employer breaches, generally in the areas covering Protecting Workplace Rights, Providing Protection from Workplace Discrimination, Providing Relief against Discrimination Victimisation and Unfair Treatment, and Fairness in the Workforce. This JobKeeper loophole also prevents an employee the basic human and workplace right to address a dispute/appeal and should be considered unjust and unfair.

Protecting Workplace Rights: After several conversations directly with the offices of the Commonwealth Ombudsman, Fair Work Ombudsman, Fair Work Commission and Australian Taxation Office they have all advised they do not have the jurisdiction to deal with an employer who deliberately or otherwise refuses to nominate an employee for JobKeeper who genuinely qualifies for JobKeeper, I believe this loophole to be a deliberate set up taken by the Federal Government and should be considered as wrong, unjust and unfair, and should be overturned.

Currently due to this JobKeeper loophole which I believe is deliberate discrimination designed by the Federal Government there is no mechanism that allows an employee to appeal this injustice, which I believe is a contravention of an employee’s basic and workplace rights.

On a personal level this loophole has allowed my employer to discriminate against me on a long-term basis and has caused distress and prevented natural justice for me, after several excuses why I did not qualify my employer provided JobKeeper nomination forms on 6-8-20 that I submitted and now proof my employer believes I qualify for JobKeeper, and then my employer still did not process my nomination forms, taking advantage of this loophole to mistreat an employee and an abuse of my basic rights, preventing my employment complaints/enquiries.

Wage Theft: This deliberate misuse of this JobKeeper loophole by my employer has caused distress and I believe should also be considered as a form of wage theft, as it was deliberately used by an employer to prevent an employee who genuinely qualified for JobKeeper to maintain their employment and their income.

Fairness in the Workforce: This long-term refusal of employment at Eyre Hotel is Unfair and regular management Bullying, this Eyre Hotel Whyalla SA JobKeeper loophole and its misuse and this type of employment pressure has allowed my employer to maintain my long-term discrimination and distress, it has also allowed my employer to regularly continue with what I believe is a long list of breaches in several areas that I have previously informed the commission on. Since a shoulder work injury at Eyre Hotel in October 2019 I have not been offered any work which I believe is a breach of FWC, when advising my employer of this injury they completely ignored their Workcover obligations and duty of care to an employee, as a result I have had three unsuccessful cortisone injections and now I require a shoulder operation, my injury is currently covered as Notification only but I have applied to EML to have my shoulder injury determined and fully covered as a Workcover injury, which I understand also has implications regarding JobKeeper. From my diary 16-7-20 I emailed my employer asking why I had not received JobKeeper assistance, without email reply at the hotel on 21-7-20 the manager sacked me standing at the Gaming Room bar, obviously retribution for my October 2019 injury and consequences, and my weeks previous JobKeeper enquiry, after raising an unfair dismissal claim FWC ref U2020/10490, the hotel claimed they had not sacked me and I withdrew my unfair dismissal claim, obviously a discriminatory stunt from an employer to prevent an employee winning an unfair dismissal claim, and to prevent legitimate payment of JobKeeper, as at March 2021 I still have not been nominated by my employer for JobKeeper such is the long-term discrimination I have endured from my employer.

Workplace Protection-Age Discrimination: My position at Eyre Hotel is to resume my work there, I am still a long-term Casual employee there working regularly and systematically since September 2014, and as highlighted by hotel emails dated 10-9-20 and 4-3-21, despite submitting several legitimate medical certificates since October 2019 I have repeatedly been refused work there, and Eyre Hotel repeatedly have refused to comply with their required obligations, such is the mistreatment from my employer and JobKeeper loophole. Several friends have advised of a series of new young workers at Eyre Hotel, I have no doubt Eyre Hotel would be accessing the $200 Youth subsidy, I believe deliberately refusing me JobKeeper and deliberately refusing work long term to be deliberate Age Discrimination.

Age Discrimination, Bullying, Victimisation, Unfair Treatment: When Eyre Hotel qualified for JobKeeper assistance 2020 most of their employees qualified also, unfortunately as I had suffered a work injury October 2019 Eyre Hotel refused to nominate me for Job Keeper, as I have been deliberately and constantly refused work since my injury October 2019 I believe this to be an issue of management Bullying, Victimisation and Unfair Treatment, and eventually turning into Age Discrimination with the implementation of JobMaker.

Presently and currently, I am employed by Eyre Hotel Whyalla SA working there regularly and systematically as a long-term Casual since September 2014, whilst not having access to the accounts at the Hotel, my complaints along with United Workers Union help originate from my work experience, details from my current and previous work colleagues, and from my accurate business diary that I maintain and is available for scrutiny.

After several conversations with the CO, FWO, FWC and ATO they have all advised they do not have the power to deal with an employer who deliberately refuses to nominate an employee for JobKeeper who genuinely qualifies for JobKeeper, I believe this loophole to be a deliberate set up created by the Federal Government and should be considered as wrong, unjust, and unfair, and should be overturned for the benefit of numerous workers Australia wide.

This is not a dispute as such between FWC and ATO regarding JobKeeper and eligibility, rather this is a dispute between an employer and employee regarding nomination rights, from my enquiries with several authorities I believe I fully qualify for JobKeeper assistance and that I am entitled to be nominated by my employer.

This JobKeeper loophole deliberately created by the Federal Government is wrong, unjust, and unfair and does not allow for an employee to legitimately dispute/complain/enquire as per their FWC General Protections regarding their employment and workplace and human rights and should be rectified/overturned for the benefit of numerous workers Australia wide...” 

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

[11] The dispute Mr Lawrenson describes in his application is a dispute with the Respondent about his eligibility for JobKeeper payments. It is not a dispute about the operation of Part 6-4C, which 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.

[12] 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.

[13] 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.

[14] 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.

[15] 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.

[16] 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.

[17] 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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