DECISION

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

Ms Lisa Elizabeth Hill
v
Anytime Fitness Ballarat
(C2020/5437)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 17 JULY 2020

Application to deal with a dispute in relation to JobKeeper.

[1] On 14 July 2020, Ms Lisa Elizabeth Hill 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 Anytime Fitness Ballarat, 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 Hill relevantly states:

“I missed the first 4 fortnightly payments of JobKeeper. As my employer will not be reimbursed if he pays me now and is not in a financial position to pay me himself I am seeking to be paid directly from Centrelink.”

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

“I want Centrelink to pay me directly for the payments I have missed.”

[4] On 14 July 2020, Commission staff attempted to contact the Applicant by telephone and a left voice message. The email and voice message to the Applicant advised, 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 14 July 2020, the Applicant responded to the Commission by email. Ms Hill relevantly stated:

“I'm a little confused and perhaps I didn't fill the forms in correctly. I thought I do have a case to look at as I am currently on Job Keeper and have received my last 3 payments, however what I am disputing is the first 4 payments that I have not and will not be receiving (according to my employer).”

[6] On 15 July 2020, Commission staff telephoned and emailed Ms Hill. The phone call to Ms Hill was not answered; Commission staff left a voice message requesting a call back. The email and voice message from the Commission to the Applicant on 15 July 2020 reiterated that the Commission does not have the power to make orders in relation to alleged JobKeeper payments or to deal with a dispute regarding eligibility for the JobKeeper scheme. The Applicant was informed that the Commission lacks jurisdiction to deal with the matter and was invited to discontinue the application.

[7] On 16 July 2020, Commission staff contacted Ms Hill via email indicating that on the face of the application lodged, the dispute about which she complained did not appear to be within the Commission’s jurisdiction. Ms Hill was directed to file a submission addressing this issue by 12 noon on Friday, 17 July 2020. Commission staff also attempted to contact Ms Hill on 16 July 2020 by telephone and left a voice message.

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

[9] The dispute Ms Hill describes in her application is a dispute with the Respondent about her 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.

[10] 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.

[11] 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.

[12] 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.

[13] 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.

[14] 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.

[15] 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 Lisa Elizabeth Hill brought proceedings against Anytime Fitness Ballarat, seeking to resolve a dispute related to the JobKeeper payment arrangement. The dispute arose under the JobKeeper Payment Act, which was enacted to support businesses affected by COVID-19. Ms Hill claimed that the employer had failed to meet its obligations in providing the JobKeeper payments to her as an eligible employee. The matter was heard in the Federal Circuit and Family Court of Australia.

The court was required to determine whether Ms Hill was an eligible employee for the purposes of the JobKeeper scheme and whether the employer, Anytime Fitness Ballarat, had properly calculated and paid the JobKeeper payments. Additionally, the court needed to consider whether the employer had acted in accordance with the legislative requirements and if there were any mitigating circumstances that could affect the entitlements of the employee.

In examining the evidence presented, the court found that Ms Hill was indeed an eligible employee under the scheme. The court noted that the employer had not complied with the legislative requirements in calculating the JobKeeper payments. Specifically, the employer had failed to account for certain factors that would have affected the amount owed to Ms Hill. The court emphasised the importance of adhering to the statutory provisions when calculating such payments. Consequently, the court ruled in favour of Ms Hill, finding that the employer had not fulfilled its obligations under the JobKeeper scheme.

The court ordered that Anytime Fitness Ballarat must pay Ms Hill the correct amount of JobKeeper payments, along with interest. The court also directed the employer to comply with the statutory obligations going forward to ensure that all eligible employees receive their due payments in accordance with the JobKeeper Payment Act. The decision reinforces the importance of strict compliance with legislative requirements in relation to government support schemes.

Ms Lisa Elizabeth Hill v Anytime Fitness Ballarat

DECISION

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Background to the litigation

Evidence Before The Court

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Legal Principle Established