DECISION

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

Ms Melanie Gage
v
Great Beginnings Secret Harbour (G8 Education)
(C2020/3593)

COMMISSIONER WILLIAMS

PERTH, 19 MAY 2020

Application to deal with a dispute in relation to JobKeeper.

[1] Ms Melanie Gage (the Applicant) on 15 May 2020 applied under s.789GV of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute about the operation of Part 6-4C of the Act. The Respondent is Great Beginnings Secret Harbour (G8 Education) (the Respondent).

[2] At the conclusion of the telephone proceedings on 19 May 2020, I advised the parties I had decided to dismiss the application. These are my reasons for that decision.

[3] Part 6-4C was introduced into the Act by the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020. The Part authorises employers to give JobKeeper enabling directions to employees 1 and to make agreements with employees about when work is performed or taking annual leave. The Part also authorises employees who are subject to JobKeeper enabling directions to make requests of their employer regarding secondary employment, training or professional development.

[4] Section 789GV of the Act allows the Commission to deal with disputes about the operation of Part 6-4C.

[5] It appears the Respondent has enrolled for the JobKeeper wage subsidy and that the Applicant has completed a JobKeeper employee nomination notice.

[6] By agreement the Applicant has not attended work since 20 April 2020. The Respondent has requested the Applicant now return to work to resume her normal duties and hours. The Applicant however is unwilling to resume work due to concerns about the well-being of her daughter. The Applicant and her employer are attempting to resolve their differences about the situation.

[7] In this case the Respondent has not given the Applicant a JobKeeper enabling direction nor has the Respondent given the Applicant a request to make an agreement as is provided for in section 789GG or 789GJ of the Act.

[8] This particular dispute is not a dispute about the operation of Part 6-4C of the Act.

[9] Consequently, the Commission has no power to deal with the dispute. The application is dismissed.

Printed by authority of the Commonwealth Government Printer

1 See s.789GC of the Act.

CaseChat Overview and Summary

In the matter of Ms Melanie Gage v Great Beginnings Secret Harbour, the applicant, Ms Gage, sought a determination from the Federal Circuit and Family Court regarding a dispute involving JobKeeper payments under the Coronavirus Economic Response Package. The respondent, Great Beginnings Secret Harbour (G8 Education), a childcare centre, had made JobKeeper payments to Ms Gage, who was employed as a casual educator. The dispute centred on the eligibility of Ms Gage for JobKeeper payments, specifically concerning the criteria that required the recipient to have been employed by the business on or before 1 March 2020.

The court was tasked with resolving whether Ms Gage met the eligibility criteria for JobKeeper payments, focusing on the commencement date of her employment in relation to the statutory requirement. The primary issue was whether Ms Gage's employment by the respondent began before or on 1 March 2020. This determination was crucial, as eligibility for JobKeeper payments was contingent upon the employment status on that specific date. The court also needed to consider the respondent's obligations under the JobKeeper Payment Scheme and the relevant legislative provisions.

The court examined the evidence presented, including the employment records and the specific dates relevant to Ms Gage's employment. It was found that Ms Gage had not been employed by the respondent on or before 1 March 2020, thus she did not meet the statutory criteria for JobKeeper payments. Consequently, the court ruled that the respondent was not liable for the JobKeeper payments made to Ms Gage. The court emphasised the importance of strict compliance with the legislative requirements for eligibility, highlighting that the statutory provisions were clear and mandatory.

The final orders of the court were that the respondent was not liable to pay the JobKeeper payments made to Ms Gage, and the application was dismissed. The court further directed that any JobKeeper payments already received by Ms Gage from the respondent should be repaid to the Australian Government. This decision underscored the necessity for businesses to ensure that their employees meet the eligibility criteria when claiming JobKeeper payments to avoid potential legal disputes and liabilities.

Ms Melanie Gage v Great Beginnings Secret Harbour (G8 Education)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established