JobKeeper disputes before the Fair Work Commission

It’s still early days but already there are clear signs that employees are not happy with how their employers are using the JobKeeper provisions of the Fair Work Act and are not afraid to take their disputes the Fair Work Commission (FWC).

What is not yet clear is how the FWC will interpret the extent of its jurisdiction to deal with these disputes, and, with only one case so far having been decided that went against the employee, whether this is a trend that employers can hope might continue.

The FWC has indicated it will turn cases around quickly so more will hopefully be known soon but here are some early indications.

The statistics and timeframes

Between 9 April and 7 May 2020, 212 JobKeeper disputes were lodged in the FWC. Of these roughly 60% have been withdrawn and roughly 75% raised jurisdictional issues such as:

1. whether a casual employee is an “eligible employee”;
2. the “one in all in” principle and nomination of employees for JobKeeper payments;
3. employer eligibility;
4. whether the relevant stand down direction was given prior to 9 April 2020;
5. disputes regarding an employee’s employment status;
6. whether a dismissed employee can seek re-engagement to become an eligible employee.

In addition to these JobKeeper disputes unfair dismissal claims increased by 60% in April compared to April last year and general protection cases involving dismissal increased more than 20%, according to a webinar presented by FWC President Iain Ross on 7 May 2020.

The Commission has indicated that it aims to have most matters referred to first conference/hearing within 48 hours of lodgement and to either deliver ex tempore judgments following the hearing or reserved decisions within 48 hours of hearing. The aim is to have all cases finalised within 14 days of lodgement.

Jurisdiction

The JobKeeper disputes (Coronavirus economic response) Benchbook[1] states that the Commission cannot assist with disputes about whether an employer is eligible to receive JobKeeper nor whether an employee is eligible for the purposes of the scheme. Enquiries regarding these matters are to be made with the ATO.

The Benchbook also states that the Commission cannot assist where an employer refuses to apply for JobKeeper payments, and as this is entirely up to employers there does not appear to be any recourse to employees in this situation.

The Commission cannot generally assist with underpayment claims and this would include payments under the JobKeeper scheme, however, a matter has already been appealed to a Full Bench in which Qantas is challenging whether the FWC has jurisdiction to deal with an employee’s dispute over his first payment.

On 15 April Qantas paid the employee $2,352.30 gross for work performed up to 6 April and then a further $647.70 gross by way of JobKeeper “top up”. Although he was paid $3,000 gross in total for April the employee alleges he should have been paid at least $1,500 per fortnight so was underpaid for the second fortnight by $852.30.

Qantas argued that the ATO permits employers to apply payments to employees paid monthly in the way that it did. It also argued that as this was essentially an underpayment claim the FWC lacked jurisdiction to hear it.

The appeal is listed for hearing on Monday 18 May and if unsuccessful the employee’s claim will be determined on its merits. It is hoped the Full Bench decision will provide further guidance regarding the FWC’s jurisdiction regarding JobKeeper disputes to assist both employers and employees understand their rights in this new area.

First decision regarding request for employee to take annual leave

The FWC decided against an employee in what is believed to be the first published decision under the JobKeeper dispute jurisdiction.[2]

The employer, VRTP, requested the employee, who had been issued with a JobKeeper enabling direction not to attend work, to take annual leave during the stand down period until her annual leave balance was reduced to two weeks. The employee refused the request by providing an “annual leave justification” relying upon holidays plans she had made (but had not yet been approved by VRTP) and some personal circumstances including a previously undisclosed medical condition.

VRTP did not accept the “annual leave justification” stating it did not meet its guidelines to unreasonably refuse its request to take leave.

The employee applied to the FWC to resolve the dispute and in particular sought confirmation that she was not being unreasonable in refusing to agree to the employer’s request.

Ultimately, Commissioner Hunt found that the employee’s refusal of the request by VRTP to take one day’s annual leave per week was unreasonable and she ordered the employee to “not continue to refuse the request made by VRTP”.

In making this determination the Commissioner noted the following:

1. the FWC had jurisdiction to deal with the dispute as it was a JobKeeper dispute;
2. as it was not a dispute regarding a JobKeeper enabling direction she was permitted to make “any other order” she considered appropriate under s789GV(4)(d) of the Fair Work Act (the Act);
3. the employee had combined annual leave and long service leave entitlements of approximately 18 weeks which had accrued over her 22 years of service with the employer. If the employee took one day of annual leave as requested up to 27 September 2020 when the JobKeeper amendments cease to have effect she would still have 11 weeks of accrued paid leave;
4. the employer’s leave policy cautioned employees not to book trips or make payments prior to leave being approved whereas the employee had committed herself to expenses for planned trips in September, October and November 2020 without obtaining formal approval;
5. in balancing the fairness between the parties as required by the Act, the Commissioner noted that VRTP was currently unable to operate at all and that this was likely to continue for some considerable time;
6. VRTP requested all relevant employees to take annual leave of half their usual days per week while in receipt of the JobKeeper payment (2.5 days per week for full time employees but only 1 day per week for Ms McCreedy as she worked 2 days per week);
7. she did not consider this to be unreasonable nor, as submitted by Ms McCreedy, that employers the size of VRTP should not be able to make such requests;
8. the test was not, however, whether VRTO had acted reasonably but whether Ms McCreedy had unreasonably refused VRTP’s request;
9. she did not regard Ms McCreedy’s medical condition (the details of which were redacted from the decision) to be a “serious medical condition” warranting the requirement of a balance of paid annual leave to her above a minimum of two weeks’ leave. She did concede that “if an employee had a serious medical condition requiring future surgery, or some further time off work to be treated for the medical condition, and there was the likelihood of the employee exhausting paid personal leave entitlements, it would factor into a consideration as to whether an employee’s refusal to take annual leave is unreasonable”;
10. this employee had significant long service leave accrued such that she would not be left without any access to paid leave. The Commissioner did not indicate whether her decision may have been different if the employee did not have this other leave accrued;
11. the stinging criticism of the employer the Commissioner was privy to on its closed Facebook page, monitored by and participated in by VRTP management, and the damage this may have caused to the relationship with some of its employees was something for “VRTP to consider and manage”;
12. she did not take into account the fact that the employee’s usual earnings were approximately $375 per week so she was receiving roughly double her normal pay by receiving the JobKeeper payment of $750 per week.

Key take aways

• Employers need to be careful when making JobKeeper enabling directions to ensure they comply with the Act;
• If you receive a JobKeeper dispute application it would be worth seeking advice as to whether it is within jurisdiction and, given, the tight time frames within which these applications are being dealt this should be done ASAP;
• If a request is made to an eligible employee to take annual leave then an employee is not able to unreasonably refuse the request;
• If the refusal is considered unreasonable then the employer can insist on the leave being taken and it is then up to the employee to challenge this decision;
• Factors that may be taken into consideration in determining whether a refusal is unreasonable include:
  • How much other leave the employee has;
  • What the employer’s leave policy says about approving leave;
  • What leave has already been approved;
  • Whether there is an ability for leave to be taken in advance of accrual or without pay;
  • Whether the employee is suffering from a serious medical condition that would make it reasonable to keep a higher balance of annual leave.

If we can assist you work through these issues please be in touch.

[1] https://www.fwc.gov.au/documents/documents/benchbookresources/jobkeeper-disputes/jobkeeper-disputes-benchbook.pdf

[2] Ms Leonie McCreedy v Village Roadshow Theme Parks P/L [2020] FWC 2480 (13 May 2020)