First JobKeeper Ruling Goes Against Worker

The Fair Work Commission (FWC) has handed down the first decision dealing with a dispute in relation to JobKeeper with the decision going against the worker.

Background

The applicant in the matter is employed by Village Roadshow Theme Parks Pty Ltd (VRTP) as a part-time employee working 30 hours per fortnight over 4 days.  The applicant has been employed with VRTP for around 22 years.

VRTP stood down a large number of its employees because of restrictions on the operation of its theme parks due to COVID-19.  The applicant last attended work on 19 March 2020 and was stood down on 23 March 2020.  The applicant was issued with a JobKeeper enabling direction, directing her not to attend for work.  She was also issued with a letter on 29 April 2020 referring to the challenges facing the business, thanking employees for their continued support and requesting employees use their leave entitlements.  The letter noted the applicant was eligible to participate in the JobKeeper scheme and requested she take one day’s annual lave per week.

The applicant objected to VRTP’s request for her to take annual leave and told the FWC that she was not being unreasonable in her refusal to agree to the request.  The applicant also told the FWC that she has five holidays planned in the coming months and into 2021 for which she intended to use her annual leave.  The applicant submitted that the JobKeeper legislation was not intended to assist a large employer like hers to use its employee’s annual leave accruals to set-off against the JobKeeper payment made by the federal government. 

Telling the FWC that the financial position of VRTP did not concern her, the applicant considered that small employers might need to request employees take leave if they were at risk of collapse, but employees of a large corporation, with a long period of service, should not have their annual leave adversely affected.  The applicant told the FWC that for 15 hours of work per week, she is usually paid around $375.  Her pay would double to $750 per week during the JobKeeper period.

FWC outcome

FWC Commissioner Hunt determined the dispute following a hearing involving the parties. The Commissioner considered section 789GJ(1) of the Fair Work Act, which was inserted into the Act in early April 2020:

789GJ Taking paid annual leave

(1) If:

(a) the employer of an employee qualifies for the jobkeeper scheme; and

(b) the employer is entitled to one or more jobkeeper payments for the employee; and

(c) the employer gives the employee a request to take paid annual leave; and

(d) complying with the request will not result in the employee having a balance of paid annual leave of fewer than 2 weeks;

the employee:

(e) must consider the request; and

(f) must not unreasonably refuse the request.

Commissioner Hunt found that the applicant unreasonably refused VRTP’s request.  The Commissioner said that the applicant had little to no regard for the request to assist VRTP in reducing leave liabilities during a time when it is unable to operate its business.  The Commissioner said the applicant’s rejection of the request had been “excessive, and disappointingly vitriolic” having regard for the fact the applicant had paid for future planned holidays without first obtaining approval from the employer. Commissioner Hunt ordered that the applicant not continue to refuse the request that she take annual leave.

McCreedy v Village Roadshow Theme Parks Pty Ltd [2020] FWC 2480