Tahlia Jankovski v Pawboy Pty Ltd t/a Ghanda

[2020] FWC 2550

[2020] FWC 2550

FAIR WORK COMMISSION

DECISION

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

Tahlia Jankovski
v
Pawboy Pty Ltd t/a Ghanda
(C2020/3438)

DEPUTY PRESIDENT COLMAN MELBOURNE, 15 MAY 2020

Application to deal with a dispute in relation to JobKeeper – jurisdiction

[1] Ms Tahlia Jankovski has 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 Pawboy Pty Ltd, which trades as Ghanda, the applicant’s employer.

[2] On 15 May 2020 I decided ex tempore to dismiss the application for want of jurisdiction. I did so for the following reasons, which I briefly outlined on transcript.

[3] 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 to make certain requests of them. It allows employees to make particular requests of their employer about other employment and training. The Part also contains civil remedy provisions which are enforceable in the Federal Court of Australia or the Federal Circuit Court of Australia under Part 4-1 of the Act.

[4] Section 789GV(1) of the Act states that the Commission ‘may deal with a dispute about the operation of’ the new Part.

[5] Part 6-4C does not deal with an employer’s eligibility for a JobKeeper payment in respect of a particular employee, or the question of whether a particular employee is an ‘eligible employee’ for the purposes of the JobKeeper scheme. 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.

[6] A dispute about whether an employer is entitled to a JobKeeper payment in respect of a particular employee for a particular fortnight, or whether a particular employee is an ‘eligible employee’ for the purposes of the JobKeeper scheme, is not of itself a dispute ‘about the operation of Part 6-4C’. The Commission is therefore not empowered to deal with such a dispute under s 789GV of the Act.

[7] The dispute in the present matter is described in the application. Question 2.2 of the Form F13A application asks an applicant to state what the dispute is about. In answer to this question, the applicant stated the following:

“3. Tahlia fulfils all the eligibility criteria to receive the Jobkeeper payment. She communicated this via email to Ghanda payroll and management on numerous occasions, but they indicated that they would NOT include her in their Jobkeeper application.

…

6. Tahlia would like a fair outcome with Ghanda including her in the Jobkeeper program like they have done for other Ghanda employees.”

[8] In answer to question 3.1 of the Form F13A, which asks how the applicant wants the dispute to be resolved, the applicant stated:

“Ghanda should include Tahlia Jankovski in its Jobkeeper application as she meets all of the federal government’s requirements to receive payment. Ghanda should pay Tahlia the Jobkeeper payment she is entitled to if Ghanda’s application is successful.”

[9] The dispute in the present matter is about whether Ms Jankovski is eligible to participate in the JobKeeper scheme. This is not a dispute about the operation of Part 6-4C of the Act.

[10] The Commission has no power to deal with the dispute and the application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Ms T Jankovski for herself
Mr D Rudd for Pawboy Pty Ltd t/a Ghanda

Hearing details:

2020
Melbourne (by telephone)
15 May 2020

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