DECISION

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

Sophia Cantwell
v
O’Brien Group Australia Pty Ltd
(C2020/3540)

Application to deal with a dispute in relation to JobKeeper.

[1] On 13 May 2020 Ms Sophia Cantwell 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 O’Brien Group Australia 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 Cantwell relevantly states:

“…

4. The company has refused to include me in the JobKeeper scheme. They created a narrow internally generated criteria that would be impossible to meet if you were a regular casual employee.

…”

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

“…I therefore seek Fair Work make a determination that I am deemed an eligible employee for the JobKeeper scheme and ask that O’Brien Group Australia supply me with the “JobKeeper employee nomination notice” and subsequently process my nomination.”

[4] On 14 May 2020 staff of the Commission 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 the Applicant was emailed a Form F50 – Notice of discontinuance.

[5] The application was not discontinued and on 19 May 2020 my Associate contacted Ms Cantwell 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 Cantwell was directed to file a submission addressing this issue by 5pm on Wednesday, 20 May 2020.

[6] On 20 May 2020 Ms Cantwell contacted my Chambers by email submitting that Division 10 of Part 6-4C of the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 empowers the Commission to deal with the dispute as notified.

[7] I have decided to dismiss Ms Cantwell’s application, for the reasons that follow.

[8] 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.

[9] 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.

[10] 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.

[11] 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.

[12] 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.

[13] 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.

[14] 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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