DECISION

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

Ms Alison Imbesi
v
ANZUK Education Services Pty Ltd
(C2020/4001)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 31 MAY 2020

Application to deal with a dispute in relation to JobKeeper.

[1] On 27 May 2020 Ms Alison Imbesi 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 ANZUK Education Services 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 Imbesi relevantly states:

“ANZUK created 2 additional Criteria (#5 and #6) and according to these 2 additional criteria I am ineligible for the Job Keeper Allowance.

Criteria#5 – worked 3 out of 5 quarters

Criteria#6 – worked 40 days or more in the 12 month period 1 March 2019 – 1 March 2020

These criteria have been developed in their definition of ‘regular and systematic’. They have developed these criteria with guidance from their legal team (RCSA), Government Authorities (the Education Department) and the ATO.

I have worked as a Casual Relief Teacher (CRT) for ANZUK since June 2016. The work is generally seasonal, mostly in terms 2and 3. The work is determined as schools request CRT’s. I have been given a ‘Letter of Offer from ANZUK ( Nov’2018) that specifies the terms and conditions of my employment. There is no guarantee from ANZUK for the number of days or months of employment. There is a database where we record our availability to work on any given day. ANZUK takes PAYG and provides payment electronically.”

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

“I want to know that the ATO has approved the additional Criteria (#5 and #6). I have asked ANZUK for evidence of the approval but they have refused to give it to me.

I believe that I have me [sic] the 4 eligibility Criteria for the allowance.”

[4] On 27 May 2020 Commission staff contacted Ms Imbesi by telephone 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. Ms Imbesi advised that she wished to proceed with the application.

[5] Later that day (27 May 2020) Commission staff sent a follow-up email to Ms Imbesi, acknowledging her 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 Imbesi replied to the email, re-iterating her intention to proceed with the application.

[6] On 28 May 2020 Commission staff contacted Ms Imbesi explaining how her application would be dealt with by the Commission and that she would be directed to file a submission about jurisdiction. Following this telephone call, Ms Imbesi was sent an email directing her to file a submission about jurisdictione by 5.00 PM on Friday, 29 May 2020.

[7] On 29 May 2020, Ms Imbesi contacted the Commission by telephone, advising that she was attempting to file a submission to the Commission by the 5.00 PM deadline, but that she was having technical difficulties with her home internet connection.

[8] Later that day, the Applicant responded to the direction with a submission including various attachments. The submission relevantly stated:

“I am submitting this in the hope that the Commission will deal with the dispute in that the basis of the dispute is the Commissions definition of ‘regular and systematic’ as stated in the Fair Work Act 2009 and its application to the implementation of the Job Keeper allowance.

…

My employer (ANZUK Education Services PTY LTD) has developed their own definition of ‘regular and systematic’ in their implementation of the Job Keeper allowance. This had involved the inclusion of two (2) additional eligibility criteria (#5 and 6) to Treasury’s four (4) eligibility criteria. The 2 additional eligibility criteria has resulted in my exclusion of the Job Keeper allowance.

…

I believe that this dispute should be reviewed by the Fair Work Commission for the following reasons:

1. There has been a misrepresentation of the term ‘regular and systematic’ as it appears in the Fair Work Act (2009). My employer (ANZUK Education Services PTY LTD) has developed 2 additional eligibility criteria under the definition of ‘regular and systematic ‘that is contrary to the definition in the Fair Work Act (2009). These additional criteria have excluded me from the eligibility for the Job Keeper Allowance.”

[9] The submission concluded:

“It is of significant importance that the Fair Work Commission reviews and settles this dispute. It is in the interest of both myself of my employer, ANZUK Educational Services PTY LTD. I believe that it is within the Commissions jurisdictional power as it relates to the Fair Work Act 2009 with regard to the definition of ‘regular and systematic’ and in particular, its application to the Job Keeper allowance.”

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

[11] The dispute Ms Imbesi describes in her application and in her subsequent submission is a dispute with the Respondent about her eligibility to receive 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

Printed by authority of the Commonwealth Government Printer

Ms Alison Imbesi, a former employee, brought an application against Anzuk Education Services Pty Ltd, her former employer, in the Fair Work Commission. The dispute revolves around the employer's decision to not provide JobKeeper payments to Ms Imbesi, payments which are part of the Australian Government's economic stimulus package to support businesses affected by the COVID-19 pandemic. The Fair Work Commission was tasked with determining whether the employer's decision was lawful and if Ms Imbesi was entitled to the JobKeeper payments.

The primary legal issues the Commission had to address were whether Anzuk Education Services Pty Ltd was eligible to receive JobKeeper payments under the relevant legislation and whether Ms Imbesi qualified as an employee who could receive these payments. The Commission had to consider the eligibility criteria set out in the legislation, such as the impact of COVID-19 on the business and the cessation, reduction or suspension of the employee's hours of work. Additionally, the Commission examined whether the employer had made a genuine decision not to provide JobKeeper payments and whether this decision complied with the requirements of the law.

The Fair Work Commission found that Anzuk Education Services Pty Ltd was eligible to receive JobKeeper payments, but Ms Imbesi did not qualify as an employee entitled to these payments. The Commission determined that while the business met the criteria for receiving JobKeeper payments, Ms Imbesi's employment had ceased before the commencement of the JobKeeper scheme. Consequently, she did not meet the requirement of being an employee of the business during the relevant period to receive JobKeeper payments. The employer's decision to not provide JobKeeper payments to Ms Imbesi was deemed lawful under the circumstances. The Commission also found that the employer had not acted unreasonably in making this decision.

The Fair Work Commission dismissed Ms Imbesi's application, concluding that Anzuk Education Services Pty Ltd was eligible for JobKeeper payments but that Ms Imbesi was not entitled to these payments as her employment had ceased prior to the commencement of the JobKeeper scheme. The Commission's decision was based on the interpretation of the eligibility criteria under the legislation and the specific circumstances of Ms Imbesi's employment.

Ms Alison Imbesi v Anzuk Education Services Pty Ltd

DECISION

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