In April, when changes were made to the Fair Work Act 2009 (the Act) to support the JobKeeper scheme, the Fair Work Commission (FWC) was also attributed new powers to handle JobKeeper disputes. Reportedly, the FWC was flooded with more than 200 applications by the first week of May, but only around 25% of claims fell within the Commission’s jurisdiction. Although roughly 60% of early JobKeeper disputes were withdrawn because they fell outside of the new jurisdiction, the trend of claims being lodged that the FWC does not have the power to determine has continued unabated.
Of the applications which have required a decision of the FWC, either because the dispute has not been withdrawn or resolved prior to determination, the overwhelming majority relate to eligibility for the JobKeeper scheme. Large numbers of casual employees have been aggrieved by their employer’s exclusion of them from the scheme with many hoping for ‘rulings’ they should be regarded to be “regular and systematic” and therefore entitled to the JobKeeper payments. Early figures suggest applications of this nature made up more than 50% of claims involving jurisdictional issues.
Other individuals have been confused and upset by their employers failing to nominate them for the scheme, despite some being told they were to be included and possibly having been asked to complete a nomination form. In one instance, an apprentice sought to argue he had been “discriminated” against by being excluded from the scheme when his non-indentured colleagues had qualified, and one employee requested annual leave paid to her “some time ago” be re-credited. In all instances, the Commission has necessarily dismissed the applications for want of jurisdiction. Regardless of how useful or interesting a determination might have been, section 789GV of the Act does not empower the FWC to rule on eligibility for the JobKeeper wage subsidy or an employer’s administration of the payments.
Since the commencement of the jurisdiction, determinative rulings of the Commission have only been issued in a limited number of cases.
The earliest decision of relevance went against the employee, who had filed the dispute after taking issue with her employer’s request that she utilise one day per week of her annual leave while she was stood down and in receipt of the JobKeeper payment. As explored in our earlier article, Commissioner Hunt ultimately found the employee’s refusal of her employer’s request to be unreasonable and ordered the worker not to continue to refuse her employer’s request. Commissioner Mckinnon followed up with a similar decision of the same date (13 May 2020) in Powell v H & M Hennes & Mauritz Pty Ltd, also ordering the employee in question to stop refusing her employer’s request to take annual leave on the basis of one day per week whilst receiving the JobKeeper payment.
More recently, a Full Bench of the FWC quashed an earlier ruling of Deputy President Sams in TWU v Prosegur Australia Pty Ltd, with the Full Bench finding the Deputy President erred in determining a JobKeeper Enabling Direction to reduce full-time employees’ hours significantly whilst, in some cases, increasing the hours of part-time and casual employees to have been reasonable and enforceable. Instead, the Full Bench confirmed that the direction “disproportionately reduces full-time employees’ entitlements” making the direction, prima facie, “unfair”. The employer and TWU have since successfully agreed that full-time employees’ hours would not reduce below 60 hours per fortnight and that part-time and casual employees would not be compelled to accept a higher number of hours than they would have typically worked before disruptions occasioned by the COVID-19 pandemic.
IMPORTANT NOTE: As from 28 September 2020 onwards, section 789GJ (Taking paid annual leave) of the Act is repealed and cannot be relied upon by an employer. This means, it is no longer possible for an employer to request an eligible employee take a period of annual leave in accordance with section 789GJ, even if the employer is continuing to participate in the JobKeeper scheme beyond 28 September and receiving the JobKeeper wage subsidy payment in relation to that worker.