Tayla Stone v Ecco Ciocco'Lata Marion

[2020] FWC 2827

[2020] FWC 2827

FAIR WORK COMMISSION

DECISION

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

Tayla Stone
v
Ecco Ciocco’Lata Marion
(C2020/4074)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 1 JUNE 2020

Application to deal with a dispute in relation to JobKeeper.

[1] On 28 May 2020, Ms Tayla Stone 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 Ecco Ciocco’Lata Marion, 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 Stone relevantly states:

“…I am aware that the workplace has applied for JobKeeper and have had a discussion with my manager in which he said that he could not afford to put everyone on JobKeeper. I believe I am eligible for JobKeeper but have received no income.”

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

“I believe I am entitled to the JobKeeper payment so I would like to be reimbursed.”

[4] On 29 May 2020, Commission staff twice attempted to contact the Applicant by telephone and left voice messages requesting she telephone the Commission. On 29 May 2020, Commission staff emailed the Applicant 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. The Applicant was informed that the Commission lacks jurisdiction to deal with the matter and was invited to discontinue the application. The email included instructions on how to discontinue the application and a Form F50—Notice of discontinuance was attached.

[5] On 30 May 2020, Commission staff attempted to contact Ms Stone by telephone again. Commission staff sent Ms Stone another 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 Stone was directed to file a submission addressing this issue by 4pm on Sunday 31 May 2020.

[6] On 31 May 2020, the Applicant responded to the direction via email stating:

“I was of the understanding from the information received from the ATO that if your employer decides to participate in the Jobkeeper payment scheme (which my employer has) than the employer must nominate all eligible employees (which I believe I am). And that the Tax office has clarified that employers cannot choose to nominate only some employees which is what my manager explained to me that he has done. Can you please therefore explain why you are unable to assist me with my dispute in this matter. Or what further information you require from me in order to assist.”

[7] On 31 May 2020, the Commission responded to the Applicant’s email. The email reiterated that the Applicant had until 4pm Sunday 31 May 2020 to make a submission. The email also invited the Applicant to phone the Commission to discuss her application.

[8] I have decided to dismiss Ms Stone’s application for the reasons that follow.

[9] The dispute Ms Stone 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.

[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

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