Ms Romee Van Polen v Asset Growth Pty Ltd

[2020] FWC 5095

[2020] FWC 5095

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Ms Romee Van Polen

v

Asset Growth Pty Ltd  

(C2020/7060)

Deputy President GOSTENCNIK MELBOURNE, 22 September 2020

Application to deal with a dispute in relation to JobKeeper.

1. On 17 September 2020 Ms Romee Van Polen 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 Asset Growth Pty Ltd, the Applicant’s employer.

1. In answer to question 2.2 of the Form F13A, which asks the Applicant to set out what the dispute is about, Ms Van Polen relevantly states:

“I started working for Asset Growth Pty Ltd Trading as Elite Property Group on 29th July 2019, my hours included working from 8.30am to 5pm, Monday to Friday which meant I received $1,153.83 gross.

On the 8th April 2020 Wendy sent out an email to everyone to explain that all wages would be delayed due to the significant drop in income and that she had registered for Job Keeper. (Can be seen in emails attached).

A work colleague had asked if I had handed in my Employee Nomination Notice to which I had no idea it was handed out.

After finding this information out I researched on who was eligible and I believe I fit into the eligibility criteria, I emailed Wendy asking if I needed a form to fill out she then replied that I would not be eligible so I don’t have to worry about it. (Can be seen in emails attached).

After following up regarding my email, she reassured me that when she hears back from the ATO she will keep everyone informed. (Can be seen in emails attached)

Wendy sent me an email to ask if I can scan and send her all the Employee Nomination Forms. I got myself a form from the ATO website to fill out and give in the email as well. I never received a response whether she did or did not put mine in.

Once following up again, I was shut down with Wendy stating, “If you are not satisfied with this you are more than welcome to find a job elsewhere”.

Wendy did not provide any evidence on how I was not eligible, and I feel as though I was treated in a quite unfair and unprofessional manner. Due to the numerous times my wages were weeks late during the COVID-19 matter and that I think I meet the eligibility criteria also that my workplace had got approved for the JobKeeper Scheme. I believe I should’ve been entitled to the JobKeeper Payment.”

1. In answer to question 3.1 of the Form F13A, which asks the Applicant to set out the remedy they are seeking, Ms Van Polen relevantly states:

“I would like for the Fair Work Commission to investigate and help.

I would like to receive my pay that I should have been entitled to (as my normal wage was under $1500).”

1. On 18 September 2020 Commission staff attempted to contact the Applicant by telephone and left a voice message. On 18 September 2020 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 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.

1. The application was not discontinued, and on 20 September 2020 Commission staff contacted Ms Van Polen by 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 Van Polen was directed to file a submission addressing this issue by 10am on Tuesday, 22 September 2020. Commission staff also attempted to contact Ms Van Polen on 22 September 2020 and left a voice message.

1. The Applicant did not respond to the direction.

1. I have decided to dismiss Ms Van Polen’s application, for the reasons that follow.

1. The dispute Ms Van Polen 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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

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