Shawnee Comer v Warren Ansell Salon Pty Ltd

[2020] FWC 2825

[2020] FWC 2825

FAIR WORK COMMISSION

DECISION

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

Shawnee Comer
v
WARREN ANSELL SALON PTY LTD
(C2020/4013)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 31 MAY 2020

Application to deal with a dispute in relation to JobKeeper.

[1] On 27 May 2020, Ms Shawnee Comer 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 Warren Ansell Salon Pty Ltd, 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 Comer relevantly states:

“1) Job Keeper subsidised wages are not (and have never) been passed onto me.

2) My employer agreed to Pay me this Wage on 1 May 2020 (attached below).

3) On 1 May 2020 (AND on 16 April 2020), my employer requested I sign the Job Keeper Nomination Form (attached). On 4 May 2020 I did so.

4) I have not been paid Job Keeper wages since approx. 18 April 2020…

…

9) I have not heard anything from my employer about Job Keeper wages since 1 May 2020 despite numerous emails, texts and phone calls.

10) I am now owed Job Keeper wages for May.

11) I believe my employer is not passing on the Subsidy to punish me for another unrelated dispute.

…”

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

“1) Simply to be paid the Job Keeper wages I am owed (which as of this date is approx. $6000 (before tax)); and

2) An apology in writing for failing to pass on the Subsidy as required.”

[4] It was unclear from Ms Comer’s application whether the respondent was in receipt of the JobKeeper wage subsidy in respect of the applicant. On 27 May 2020, Commission staff contacted the applicant’s representative to explain that there may be jurisdictional issues with Ms Comer’s application. The applicant’s representative was unable to confirm whether the respondent was claiming the JobKeeper subsidy from the Australian Taxation Office in respect of the applicant.

[5] On 28 May 2020, Commission staff emailed the applicant and respondent to advise, among other things, that the dispute as notified to the Commission may be a dispute about eligibility for the JobKeeper payment and may not be a dispute about the operation of Part 6-4C of the Act.

[6] The respondent was directed to make a submission about the Commission’s jurisdiction to deal with the applicant’s case. In particular, the respondent was directed to make a submission about whether it was claiming the JobKeeper subsidy in respect of Ms Comer.

[7] On the same day, Ms Comer was directed to make a submission in relation to the Commission’s jurisdiction to deal with her case. 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.

[8] The parties were notified that I would make a decision in relation to the applicant’s case soon.

[9] On 29 May 2020, the applicant made a submission in relation so s.789DG of the Act, which relates to the wage condition. The applicant submitted:

“To be entitled to a job keeper payment for an eligible employee for a fortnight an employer must pay amounts totaling at least the $1,500 for the fortnight to or in respect of the eligible employee (the ‘wage condition’). Employers cannot claim the jobkeeper payment unless they have already paid the employee. My employer is doing this very fact, I understand, without paying me. And when asked, has not confirmed the opposite.

…”

[10] On 29 May 2020, the respondent filed a submission in the Commission stating that it was not claiming the JobKeeper subsidy in respect of Ms Comer. In support of its submission, the respondent filed an Australian Taxation Office receipt for the wage subsidy it claimed which confirmed that the respondent is not claiming the subsidy in respect of Ms Comer.

[11] On 29 May 2020, the Commission served the applicant with submissions received by the respondent. In a further submission, the applicant acknowledged that the respondent did not register her for the scheme:

“…My employer simply did not register me as he should have because he did not understand I was on authorised leave (despite telling him). I therefore hope the Commission can order he does recognise I am (or at least was) on authorised leave and therefore entitled to Job Keeper. The ATO will back pay him for April. He is still in time to claim my employment for May. And therefore, I am still entitled to what I am claiming in the Form F13A.

…”

[12] The written material lodged in this case demonstrates that there is a history of disputes between Ms Comer and the respondent about other work-related issues. It appears that communication between Ms Comer and the respondent has become difficult and the applicant did not know whether the respondent was claiming the JobKeeper subsidy on her behalf.

[13] I am satisfied that the respondent is not claiming the JobKeeper subsidy in respect of Ms Comer.

[14] The dispute between Ms Comer and the respondent is a dispute about her eligibility 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.

[15] 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.

[16] 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.

[17] 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.

[18] 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.

[19] 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.

[20] 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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