Mr William Feyen v FAL Group Pty Ltd

[2020] FWC 2549

[2020] FWC 2549

FAIR WORK COMMISSION

DECISION

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

Mr William Feyen
v
FAL Group Pty Ltd
(C2020/3370)

DEPUTY PRESIDENT COLMAN MELBOURNE, 18 MAY 2020

Application to deal with a dispute in relation to JobKeeper - jurisdiction

[1] Mr William Feyen has 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 FAL Group Pty Ltd, the applicant’s former employer.

[2] The application was listed for telephone hearing on 15 May 2020. The applicant did not attend the hearing. My associate advised the applicant that, unless I heard from him by close of business on 15 May 2020, I would determine the application based on the materials before the Commission. I did not receive any communication from the applicant.

[3] 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.

[4] Section 789GV(1) of the Act states that the Commission ‘may deal with a dispute about the operation of’ the new Part.

[5] Part 6-4C does not deal with whether an employer is eligible for a JobKeeper payment in respect of a particular employee for a particular fortnight, or whether a particular employee is an ‘eligible employee’ for the purposes of the JobKeeper scheme. 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.

[6] A dispute about whether an employer is entitled to a JobKeeper payment in respect of a particular employee for a particular fortnight, or whether a particular employee is an ‘eligible employee’ for the purposes of the JobKeeper scheme, is not of itself a dispute ‘about the operation of Part 6-4C’. The Commission is therefore not empowered to deal with such a dispute under s 789GV of the Act.

[7] The dispute in the present matter is described in the application. In answer to question 2.2 of the Form F13A application, which asks what the dispute is about, the applicant stated:

“1. I have been employed by FAL Group since October 2018 on a casual basis.

2. I meet the requirements of an eligible employee under Jobkeeper.

3. FAL Group have applied for and are participating in the JobKeeper program.

4. FAL Group severed my employment on 21 March 2020 stating lack of cashflow to keep me on until the Jobkeeper payments were received.

5. My understanding of the intention of the legislation was that it was ‘one in, all in’ and as such FAL should not discriminate among eligible employees as to who they will nominate for Jobkeeper.”

[8]  In answer to question 3.1 of the Form F13A, which asks how the applicant wants the dispute to be resolved, the applicant stated:

“I want FAL Group to reinstate me, nominate me as an eligible employee and process JobKeeper payments for me.”

[9] 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. The applicant is none of these. Relevantly, he is not an employee, because he has been dismissed and seeks reinstatement. Whether he may be an employee of some other employer is not relevant, because ‘employee’ in s 789GV(3) clearly means an employee of the respondent employer. The applicant does not have standing to bring a dispute to the Commission under s 789GV.

[10] Moreover, the dispute otherwise relates to whether the applicant is, or would be, eligible to participate in the JobKeeper scheme. This 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 therefore dismissed.

DEPUTY PRESIDENT

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