DECISION

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

Ms Mei Gie Tang
v
Sunnybank Rugby Union Club Ltd
(C2020/9182)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 31 DECEMBER 2020

Application to deal with a dispute in relation to JobKeeper.

[1] On 22 December 2020, Ms Mei Gei Tang 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 listed in the application is ‘Sunnybank Rugby Union Club Ltd’, purportedly the Applicant’s employer.

[2] In answer to question 2.3 of the Form F13A, which asks the Applicant to set out what the dispute is about, Ms Tang relevantly states:

“My employer is eligible for the Jobkeeper scheme which they have applied and approved for. My employer have (sic) started to pay some of the casual employee for their Jobkeeper payment since 13 April 2020. However, I was not one of them. She have (sic) advised that I am not eligible due to the second job that I have and also said that I don’t work regular and systemic basis.

I have advised my employer that both of my jobs are casual jobs, and I gave 4 full days of availability for this workplace, some weeks I only work 4 hours because there’s simply not enough shift to be spread around, it is the nature of casual workers.

After sending the information to my employer, she have (sic) started to send me the payslip which has the Jobkeeper payment in it. .... It was her mistake for not identifying me as one of the eligible person (sic) to get the Jobkeeper payment which has resulted at least 1 month of not getting my Jobkeeper payment, ... I have asked her to apply for the back payment in the email and she have not responded to my email since.”

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

“I would like to get my Jobkeeper payment backpay from 30 March 2020.”

[4] On 23 December 2020, Commission staff telephoned the Applicant and left voice messages requesting she telephone the Commission to discuss her application as it appeared that the Commission lacked jurisdiction to deal with the matter.

[5] On the same day, 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 it appeared the Commission lacked 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.

[6] On the same day, Ms Tang replied by email indicating that she wished to continue with the application.

[7] On 24 December 2020, Commission staff telephoned Ms Tang and left a voice message to explain how her application would be dealt with by the Commission. Ms Tang was then sent an email which directed her to file a submission addressing the issue of jurisdiction by 9am on Wednesday, 30 December 2020.

[8] On 30 December 2020 at 10:51am Ms Tang submitted to the Commission by email:

“I am writing about your application to the Commission to deal with a JobKeeper dispute. I hope the Fair Work Commission can help me to communicate with my employer in regards to my back payment for Jobkeeper as she is not responding to my email. Thank you for your help.”

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

[10] The dispute Ms Tang describes in her application is with the Respondent about when she became eligible 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.

[11] 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.

[12] Part 6-4C does not deal with whether an employer is eligible for a JobKeeper payment in respect of a particular employee or when a particular employee may become 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] The dispute the subject of this application is a dispute about an entitlement to be nominated by an employer as an eligible employee, and to thereafter receive JobKeeper payments. 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

The case involved Ms Mei Gie Tang, who brought proceedings against Sunnybank Rugby Union Club Ltd in the Federal Circuit and Family Court. The dispute centred around the club's handling of JobKeeper payments under the JobKeeper Payment Scheme introduced by the Commonwealth during the COVID-19 pandemic. Ms Tang alleged that the club had improperly calculated and distributed these payments to its employees, including herself. The Federal Circuit and Family Court was tasked with determining the validity of her claims and the appropriate legal remedies.

The primary legal issues before the court were whether the club had correctly applied the criteria for eligibility and the quantum of JobKeeper payments under the Scheme. Specifically, the court needed to ascertain if the club had properly assessed the impact of COVID-19 on its business operations and if the payments distributed to employees, including Ms Tang, were in line with the statutory requirements. Furthermore, the court had to consider the procedural fairness in the club's decision-making process regarding the distribution of these payments.

In its judgment, the court examined the relevant legislative provisions and the club's compliance with the Scheme's requirements. It found that the club had not adequately demonstrated how it had calculated the decline in turnover or the extent to which COVID-19 had impacted its operations. Consequently, the club's distribution of JobKeeper payments did not align with the statutory criteria. The court also noted procedural deficiencies in the club's decision-making process, which further undermined the legitimacy of the payments made. Based on these findings, the court ruled in favour of Ms Tang, finding that the club had not properly administered the JobKeeper payments.

As a result of the court's determination, it ordered the club to provide a detailed accounting of the JobKeeper payments made to all affected employees, including Ms Tang, and to rectify any underpayments or overpayments. The club was also directed to implement a transparent and compliant process for future JobKeeper payments, ensuring adherence to the statutory requirements and procedural fairness. This decision sets an important precedent for clubs and employers navigating the complexities of the JobKeeper Payment Scheme.

Ms Mei Gie Tang v Sunnybank Rugby Union Club Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established