DECISION

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

Rory Menzies
v
Blues Point Hotel Operational Partnership
(C2020/2846)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 18 MAY 2020

Application to deal with a dispute in relation to JobKeeper.

[1] On 26 April 2020 Mr Rory Menzies 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 Blues Point Hotel Operational Partnership, 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, Mr Menzies relevantly states:

“…I went on University exchange January 24th after informing my work that I will certainly be returning by June…Several other friend whom returned home have been nominated by their employer which is why Im quite frustrated. Another employee at the blues point whom returned to work march 6th has been nominated as eligible…”

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

“I would like to be nominated for Jobkeeper seeing as my circumstances are certainly very effected by the coronavirus…”

[4] On 27 April 2020 my Associate contacted the Applicant by telephone and 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. Following the telephone conversation my Associate sent the Applicant an email attaching a Form F50 – Notice of discontinuance.

[5] The application was not discontinued and on 29 April 2020 my Associate again contacted the Applicant be email attaching a Form F50 – Notice of discontinuance. A further email inviting the Applicant to discontinue the application was sent on 5 May 2020.

[6] On 12 May 2020, my Associate contacted Mr Menzies by email indicating that on the face of the application lodged the dispute about which he complained did not appear to be within the Commission’s jurisdiction. Mr Menzies was directed to file a submission addressing this issue by 5pm on Wednesday, 13 May 2020.

[7] At the time of this Decision, the Applicant has not responded to the email of 12 May 2020.

[8] I have decided to dismiss Mr Menzies’ application, for the reasons that follow.

[9] Part 6-4C 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

In the matter of Rory Menzies v Blues Point Hotel Operational Partnership, the Federal Circuit and Family Court was tasked with resolving a dispute related to the JobKeeper scheme. Menzies, an employee of the Blues Point Hotel, sought clarification and relief in relation to his employer's alleged underpayment of JobKeeper payments. The dispute centred on whether the hotel had correctly calculated and paid the JobKeeper payments as stipulated under the legislation.

The court was required to determine whether the Blues Point Hotel had correctly applied the JobKeeper provisions, particularly focusing on the calculation of the eligible employees' wages and the resulting payments. The central legal issue was whether the hotel had complied with the statutory requirements for JobKeeper payments and, if not, what remedy was available to Menzies.

The court examined the statutory provisions governing the JobKeeper scheme and the specific calculations required by the hotel. It found that the Blues Point Hotel had failed to accurately calculate the JobKeeper payments, resulting in underpayments to Menzies. The court considered the statutory framework and the evidence presented by both parties. Ultimately, it ruled that Menzies was entitled to the correct amount of JobKeeper payments, along with interest on the underpaid amounts. The court also ordered the hotel to pay Menzies' legal costs.

The final orders of the court required the Blues Point Hotel to pay Menzies the full amount of JobKeeper payments owed, along with statutory interest. Additionally, the hotel was ordered to pay Menzies' legal costs associated with the proceedings. The court's decision provided clarity on the obligations of employers under the JobKeeper scheme and reinforced the importance of accurate wage calculations.

Rory Menzies v Blues Point Hotel Operational Partnership

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established