[2020] FWC 3469

The attached document replaces the document previously issued with the above code on 3 July 2020.

At paragraph [12] the words “per fortnight” have been inserted after “per employee”.

At paragraph [49] dot point two – the word “primarily” has been deleted, and the word “previously” inserted in its place.

Joseph Hyde

Associate to Deputy President Anderson.

Dated: 3 July 2020.

[2020] FWC 3469


Fair Work Act 2009

Section 789GV - Application to deal with a dispute under Part 6-4C

Allan Jones
Live Events Australia Pty Ltd



Application to deal with a dispute under Part 6-4C – Jobkeeper – whether employee can be usefully employed for normal days and hours – jobkeeper enabling stand down direction authorised – terms of direction unreasonable – order made to vary direction

[1] On 19 June 2020 Allan Jones (Mr Jones or the Applicant) applied to the Commission under section 789GV of the Fair Work Act 2009 (FW Act) to deal with a Jobkeeper dispute.

[2] The responding party is his employer, Live Events Australia Pty Ltd (Live Events).

[3] The dispute concerns a Jobkeeper enabling stand down direction (the Direction) issued to Mr Jones on 11 June 2020 that his minimum hours of work be reduced from 80 to 48 per fortnight.

[4] The application was subject to two conciliation conferences1 but did not resolve. I arbitrated the matter (by telephone) on 26 June 2020.

[5] I received substantial material by way of evidence and submission from Mr Jones and Live Events. I made confidentiality orders relating to one document produced by Live Events2 disclosing financial revenues and estimates. I took oral evidence from Mr Jones and from two officers of Live Events: Mr Davison (Executive Director) and Ms Cowle (Executive Assistant).

[6] Although self-represented at conciliation, Live Events was granted permission to be legally represented at the hearing. Mr Jones remained self-represented.


[7] Live Events is in the business of contracting with networks in Australia and New Zealand to broadcast live events, including sport. It is part of the Mediatec Asia Pacific group. Amongst other operations, it contracts to broadcast horse racing in Victoria and Western Australia.

[8] Mr Jones is employed on a full-time basis as a broadcast engineer. He is based in Western Australia. He travels to events with a broadcast crew and, together with other technicians, performs an integral role in securing feed of an event which is then sold to contracted networks.

[9] Although Mr Jones is not exclusively contracted to work on racing and has performed this technical role at other events (such as basketball), his work has overwhelmingly concerned horse racing events. I accept his evidence that over the past year, 97% of his rostered work had been at racing events in Western Australia. 3

COVID-19 impacts

[10] Since March 2020, the COVID-19 pandemic severely disrupted community activities including the events industry and sport. However, horse racing has been one of the few sporting events permitted by Australian public health authorities to continue relatively uninterrupted, though largely without crowds and with social distancing protocols.4

[11] More generally, the level of restriction on community activities differs in each Australian jurisdiction according to assessments by local health authorities. For example, the easing of restrictions on sporting events in Western Australia is, at the date of this decision, more progressed than in Victoria where current outbreaks of community transmission in Melbourne are concerning health authorities resulting in localised restrictions being reimposed.

[12] The overall business of Live Events has been disrupted by COVID-19. Whilst it is unnecessary to disclose the financial information produced in this matter, it is not contested that adverse revenue impacts have been significant and severe enough for operations to be materially scaled back and budgets recast. Eligibility for Jobkeeper has been established. Since 30 March 2020 Live Events has received a government subsidy of $1,500 per employee, per fortnight (including in relation to Mr Jones) via Jobkeeper.

[13] Scaled back operations have resulted in an overall reduced demand for labour. Pre-COVID-19 Live Events employed full time employees (such as Mr Jones) supplemented by casuals. Generally, Live Events has reduced reliance on casuals whilst retaining (to date) its full time workforce even where productive work to the level of pre-COVID-19 hours is not available.

[14] Whilst this is the general picture across the business, it is not uniform. Racing operations in Western Australia have continued, with much smaller impacts on rostered hours for labour including technicians and broadcast engineers.

[15] Mr Jones has continued to be rostered around 80 hours per fortnight and is performing productive work across those hours. What has been scaled back is , generally speaking, the regular overtime, often substantial, that Mr Jones and other technicians previously worked (although until mid-June 2020 crew manning levels and hours were reduced). As Mr Jones has productively worked almost a full complement of hours, and continues to do so, his fortnightly earnings have exceeded the level of the Jobkeeper subsidy.

COVID-19 measure: salary reductions

[16] Whilst this is the current actual position, Live Events took steps, since the outset of the pandemic, to make contingencies for more substantial reductions in working hours should this be required, including amongst racing technicians and crew in Western Australia.

[17] On 24 March 2020 (pre-Jobkeeper), Live Events asked staff (nationally) to agree to up to a 40% reduction “in salary and subsequent working hours” with the exception for technical staff if working shifts above this level were available:

“Regardless of the above exception and even if you believe that you will be doing less than a 40% reduction in hours, we are still asking every single staff member to agree to this temporary measure now, as we do not know if our racing contracts and other events that we currently still have on the event roster will continue throughout these challenging times. The theory behind this plan of everyone agreeing to the same reductions, is simply that we should all sacrifice a little bit together, rather than any individual having to suffer significantly more. Again, we expect this reduction to remain in place for three months.”5

[18] The effect of this proposal was that Live Events guaranteed 60% of contracted earnings.

[19] Live Events did not force staff to take this reduction. It recommended they do so. It foreshadowed redundancies if staff did not agree. All staff, other than Mr Jones, agreed via variation letters (the change operating for the period 6 April to 5 July). 6 As Mr Jones did not agree, his contract remained unaltered.

[20] On 14 May 2020 Live Events advised staff (nationally) that as Jobkeeper had kicked-in and some COVID-19 restrictions were being eased, operations were expected to return towards a “normal” working week. It advised that agreements to the 40% reduction would move to a 20% reduction earlier than planned. From at least June 2020 80% of contracted hours would be paid unless more work was performed. The employer hoped 100% of hours could be returned by July.7

[21] During June 2020 close to full crews resumed at some events, including racing in Western Australia. Mr Jones and other technicians in Western Australia were generally rostered not just for 80 hours per fortnight but also small amounts of overtime.

[22] The return to 100% of salary for all staff in July 2020 did not materialise. On 18 June 2020 Live Events advised staff that the 80% salary guarantee would continue until the end of July 2020 with the hope that 100% could apply from August:

“As I am sure most of you are aware due to the pandemic, the resulting restrictions and the time of year, we still remain extremely quiet in terms of projects. To give you an idea we are forecasting around a 75-80% reduction in Live Events Australia's revenue for 2020. Therefore, I have made the decision to prolong the current 20% reduction in hours through to the end of July. As soon as we see the full effects of this move to 80% (20% Reduction) in Salary and Working Hours for June, then we will then make the decision regarding August. The current plan is to move back to 100% Salary and working Hours in August.” 8

[23] This extension proposed by Live Events was to be actioned by a further variation letter signed by staff (with the change operating between 6 July and 27 September). As at the date of this hearing many, but not all staff had agreed, but none (other than Mr Jones) had refused. Individual consultations with concerned staff were occurring.

Jobkeeper enabling stand down direction to Mr Jones

[24] Pre-COVID-19, Mr Jones was contracted to work a minimum of 40 hours per week (80 per fortnight). He would be rostered in advance, usually working on the broadcast of race meetings. Given the imprecise duration of some sporting events and live crosses, overtime would be worked. Mr Jones regularly worked at least 85 hours per fortnight (including overtime). Occasionally he worked up to 100 hours per fortnight.

[25] Mr Jones turned down the 24 March 2020 proposal because, as a matter of fact, racing events in Western Australia had not been materially interrupted. He continued to be rostered at least 80 hours a fortnight of productive work; he considered that as work was still available a request to reduce his contracted hours was pre-emptive.

[26] On 5 June Live Events notified Mr Jones that it intended to issue a Jobkeeper enabling direction reducing his hours to 48 per fortnight, and proposed consultation.

[27] After email exchanges on 6 and 9 June,9 a consultation meeting was held on 10 June 2020. The record of the meeting is in evidence.10 At the meeting Mr Jones contested the reasonableness of the proposal on the basis that work was available, was being performed, and the employer had only weeks prior advised staff that the overall situation was improving and returning to normal. The employer maintained its ground:

“Revenues have been severely impacted. Situation is still volatile and while racing may continue, there is still risk of race meetings being cancelled for unknown amounts of time, we still have no certainty on when Live Events will be permitted to commence.”

[28] Notwithstanding Mr Jones’s objection and the intimation that he would consult ‘fair work’, on 11 June 2020 Live Events issued the following to Mr Jones:

“Dear Allan,


We refer to our meeting on June 10, 2020 regarding the reduction of your contracted working hours.

As you are aware Live Events Australia (the Company) is participating in the JobKeeper scheme and has nominated you as an eligible employee to receive JobKeeper payments. Whilst this has assisted with our cash flow, we are still facing challenges operating in the current environment. Whilst providing much needed assistance, unfortunately, such downturn will not be offset with the payment of the JobKeeper allowance to eligible employees such as yourself.

Under section 789GDC, 789GE and 789GG of the Fair Work Act 2009, an employer may direct an employee to work for a different number of hours compared with their ordinary hours of work, on different days, at different times and undertaking different duties where they are in receipt of the JobKeeper payment.

Therefore, in line with your eligibility of the JobKeeper Payment, and in line with the directions stipulated, the Company confirms your hours of work outlined below:

-Your new minimum hours of work will be 48 hours per fortnight.

All other terms and conditions of your employment remain unchanged.

The above agreement will commence as of 15 June 2020 and end on 27 September 2020, unless revoked, withdrawn or changed earlier.

If you have any questions or concerns in relation to this matter, please contact Storm Cowle on 0000000000.

Yours sincerely,


[29] No Live Events employee other than Mr Jones was issued a Jobkeeper enabling stand down direction either on 11 June 2020 or, to date, at any other time.

[30] Mr Jones filed these proceedings on 19 June 2020.

[31] Since the direction was issued, there has been no material change to Mr Jones’s working hours. He continues to work pre-determined rosters of 80 hours per fortnight, with small amounts of additional overtime (between two and five hours per fortnight).


[32] Mr Jones challenges the Direction on two grounds:

1. that it is not authorised by section 789GDC of the FW Act. In particular he says that the requirement in section 789GD(1)(c) that “the employee cannot be usefully employed for the employee’s normal days or hours” has not been met; and

2. that the Direction contravenes section 789GK and thereby does not apply to him because it is “unreasonable in all the circumstances”.

[33] In support of these contentions Mr Jones submits:

  productive work as a broadcast engineer in his normal days and hours existed at the time of the Direction, and continues to be rostered and performed at his regular contracted level of at least 80 hours per fortnight;

  racing events in Western Australia have not been disrupted;

  other employees in technical roles that comprise broadcast crews at racing events in Western Australia have continued to be rostered normal hours irrespective of whether they agreed or not to the requested contractual changes;

  Live Events is not able to issue the Direction as a mere contingency just in case normal hours cannot be worked at some future time;

  the Direction was given to him and him alone at the very time other staff were being told the business situation was returning to normal;

  it is not reasonable for Live Events to reduce his hours when his work has not been disrupted;

  it is not reasonable for Live Events to regard him as an outlier amongst employees and single him out for a Direction when he exercised a lawful right to refuse a recommended contractual variation and when, as a matter of fact, the work he and other technical crew members in Western Australia normally perform is not being materially disrupted; and

  in the event that racing activity in Western Australia is materially disrupted he is willing to then (but only then) agree to a reduction in hours (to the extent necessary) and willing to consider foregoing the statutory notice he may be required to be given 11 should a Direction be issued at that time.

[34] Live Events contend that the Direction was both authorised by law and reasonable, and that the application should be dismissed. In support of this position it submits:

  Properly interpreted, and having regard to the intended flexibility needed to respond to the COVID-19 pandemic, section 789GD permits Jobkeeper enabling stand down directions to be issued to deal with both actual and contingent circumstances;

  As a matter of fact, normal hours of employees in the business were disrupted at the time the Direction was issued, including to Mr Jones given that regular overtime worked even by technical crews covering racing in Western Australia had been reduced from pre-COVID-19 levels, as well as crew levels and ordinary hours of some other technicians;

  To maintain Mr Jones at 80 rostered hours per fortnight is requiring the employer to reduce available hours to other employees, including other technical crew members, which was and continues to be unfair (a proposition disputed by Mr Jones);

  To maintain a payment to Mr Jones equivalent to 80 hours per fortnight is unreasonable in those fortnights should the employer not be able to roster Mr Jones all those hours and the business would have to top-up Jobkeeper payments to make up his salary level;

  The situation concerning COVID-19 is fluid and sporting events, including racing in Western Australia, could be cancelled by public health or sporting authorities at short notice, leaving Live Events liable to pay Mr Jones for 80 hours per fortnight even if work cannot be performed due to cancellations at short notice;

  The Direction provides fairness amongst employees given that all employees other than Mr Jones agreed to reduce (in percentage terms) hours by the amount in the Directive (40%) for the three-month period April to July 2020, and are still only receiving a guarantee of 80% of salary; and

  The Direction is fair to employees as a whole because the general application of hour reductions across the workforce reduces the need for redundancies.


Is the Direction authorised?

[35] Section 789GDC(1) of the FW Act provides:

“789GDC Jobkeeper enabling stand down

(1) If:

(a) after the commencement of this section, an employer of an employee gave the employee a direction (the jobkeeper enabling stand down direction) to:

(i) not work on a day or days on which the employee would usually work; or

(ii) work for a lesser period than the period which the employee would ordinarily work on a particular day or days; or

(iii) work a reduced number of hours (compared with the employee’s ordinary hours of work);

during a period (the jobkeeper enabling stand down period); and

(b) when the jobkeeper enabling stand down direction was given, the employer qualified for the jobkeeper scheme; and

(c) the employee cannot be usefully employed for the employee’s normal days or hours during the jobkeeper enabling stand down period because of changes to business attributable to:

(i) the COVID-19 pandemic; or

(ii) government initiatives to slow the transmission of COVID-19; and

(d) the implementation of the jobkeeper enabling stand down direction is safe, having regard to (without limitation) the nature and spread of COVID-19; and

(e) the employer becomes entitled to one or more jobkeeper payments for the employee:

(i) for a period that consists of or includes the jobkeeper enabling stand down period; or

(ii) for periods that, when considered together, consist of or include the jobkeeper enabling stand down period;

the jobkeeper enabling stand down direction is authorised by this section.”

[36] It is not disputed by Mr Jones that paragraphs (a), (b), (d) and (e) apply. The issue for determination is whether the mandatory requirement of section 789GDC(1)(c) has been made out.

[37] The normal canons of construction apply to the interpretation of section 789GDC(1)(c). These require the ordinary meaning of words used by the parliament to be adopted having regard to statutory context and purpose.

[38] The objects in section 789GB are relevant. Part 6-4C has been inserted by the parliament as a temporary measure to facilitate (amongst other purposes) the retention of employment relationships, the avoidance of redundancies and the continued engagement of employees in productive work available within the economy.

[39] These objects require Part 6-4C to be interpreted according to the language used within a framework that is responsive to employer and employee circumstances whilst the temporary legislative measure applies. Those circumstances include the reality of imprecise and changeable economic impacts of the pandemic as public health measures wax and wane, and as business conditions (actual and forecast) vary.

[40] Whilst section 789GDC(1)(c) applies, along with section 789GDC as a whole, to a moment in time (that time being when the stand down direction is given) the overall business context applying at that time is relevant and informs whether conditions precedent to the issuing of a Jobkeeper enabling stand down direction exist. I apply this purposive approach, within the framework of the language used by the parliament, in determining this matter.

[41] Although overall circumstances applying to Live Events as at 11 June 2020 are relevant, section 789GDC(1)(c) directs attention to “the employee” (in this instance, Mr Jones) and not employees as a whole. The “Jobkeeper enabling stand down period” set out in the Direction is a fifteen-week period from 15 June 2020 to 27 September 2020. As Jobkeeper enabling stand down directions are, by their very nature, covering a future period, both actual hours worked at 11 June 2020 as well as reasonable forecasts for this period are relevant considerations.

[42] The evidence before me is that work performed by Mr Jones since 11 June as well as his roster for the first part of July 2020 has Mr Jones working productively around 80 hours per fortnight. Given the relative consistency of his hours in the lead up to 11 June 2020, it is likely that productive employment will be available to Mr Jones at around this level during the stand down period unless disruption occurs to racing events in Western Australia. Whilst event cancellation has not occurred to date, it cannot be discounted. The infectious nature of COVID-19 makes the risk of an unwanted detection possible amongst those within the sport and racing industries. Cancellation of a racing event at short notice is not beyond possibility even with the best of intent and risk minimisation protocols.

[43] Whilst ordinary hours worked by Mr Jones have not materially reduced below 80 per fortnight, the regular nature of previously worked overtime, and the level of that overtime has materially reduced his overall hours of work and earnings in the COVID-19 period compared to pre-COVID-19. Whilst a return to some overtime has occurred, this is not an established trend, and is not at previous levels. Mr Jones estimates that he may be about 20% down on actual remuneration and hours (20.8 hours per fortnight) compared to equivalent periods 12.

[44] I therefore conclude that to a substantial extent, but not completely, is Mr Jones working his “normal” hours. His normal hours (including regular overtime) are not likely to completely restore before the conclusion of his stand down period.

[45] Taking this into account, together with the possibility that his hours could be altogether reduced should there be an unwelcome sudden cancellation of a racing event due to COVID-19, I conclude that section 789GDC(1)(c) is made out.

[46] The Direction of 11 June 2020 issued by Live Events to Mr Jones was authorised by the FW Act.

Is the Direction unreasonable?

[47] Section 789GK of the FW Act provides:

“789GK Reasonableness

A jobkeeper enabling direction given by an employer to an employee of the employer does not apply to the employee if the direction is unreasonable in all of the circumstances.

Note: A direction may be unreasonable depending on the impact of the direction on any caring responsibilities the employee may have.”

[48] Reasonableness is to be objectively assessed having regard to statutory context and purpose and all relevant factual circumstances 13. In this matter those circumstances concern not just factors relevant to Mr Jones but also matters relevant to Live Events including its overall business circumstances and its rights and obligations as an employer to its workforce as a whole.

[49] I have concluded that issuing a Jobkeeper enabling stand down to Mr Jones was reasonable for the following reasons:

  The overall impact of COVID-19 on the operations of Live Events has been substantial and material;

  Mr Jones is not exclusively contracted to work on an unaffected sporting event (horse racing in Western Australia). He is contracted to work as a broadcast engineer on any events to which he is rostered. Albeit to a small extent, he had previously worked on events such as the broadcast of basketball – a sporting event interrupted by COVID-19;

  The hours of work on operations in Western Australia available to be distributed to all employees (including technical crews) has diminished by virtue of COVID-19 (but is now restoring for technical crews);

  It is reasonable for Live Events to concern itself with the interests of all employees in Western Australia and their desire to work as many rostered hours as possible, and not simply the interests of Mr Jones to retain his contracted roster of at least 80 hours per fortnight; and

  There is no guarantee that unexpected interruptions to events or sporting operations in Western Australia will not arise during the stand down period.

[50] However, for the following reasons I have concluded that Live Events overplayed its hand and that the terms of the Direction it issued to Mr Jones was unreasonable:

  The level of reduction provided in the Direction is not proportionate to either the then applying actual rosters of Mr Jones, the subsequently issued rosters to Mr Jones or reasonably forecast prospective rosters even taking into account the risk of an unscheduled interruption to contracted events in Western Australia;

  The level of reduction provided in the Direction is not proportionate to either the then applying actual rosters of other technical crew members working on sporting events in Western Australia or their subsequently issued rosters;

  There is no evidence that technical crews in Western Australia were not at 11 June 2020 (and since) being rostered for productive hours in excess of 48 per fortnight. The evidence is to the contrary; that technical crews were then and are now being rostered around 80 hours per fortnight whilst horse racing events remain in operation;

  Live Events imposed a direction reducing working hours of Mr Jones to 48 per fortnight at the very time it expected to continue to roster Mr Jones in excess of 48 hours per fortnight, and in fact continued to do so given that productive work was available to be performed by Mr Jones at the rostered levels; and

  To the extent that employees as a whole, including non-technical employees or employees not working on horse racing events in Western Australia are not being rostered their normal hours, those employees at least since June 2020 have been guaranteed 80% of salary (that is, a reduction of no more than 20%), not 60% (a 40% reduction) as had been the case in April and May 2020.

[51] Put simply, at the very time Live Events imposed on Mr Jones a stand down direction reducing his hours to 48 per fortnight (a 40% reduction), Live Events lifted the 40% reduction imposed on other staff to a figure of 20% which it advised staff more accurately reflected the then business circumstances. That figure remains.

[52] The Direction is overwhelmingly precautionary in nature; that is, the employer seeks flexibility to reduce ordinary hours worked by Mr Jones to this level (by 40%) should it need to do so. Whilst, having regard to the statutory objects of Part 6-C a reasonable level of contingency would not of itself render a direction unreasonable, a contingency which is so disproportionate from actual circumstances or from those reasonably forecast is an unreasonable direction. That is the character of the Direction issued to Mr Jones.

[53] In these circumstances the Direction to reduce hours to be worked by Mr Jones by 40% (to 48 per fortnight) was unreasonable within the meaning of section 789GK.

[54] A Direction on reasonable terms would have been for Live Events to have provided itself the capacity (if overall circumstances warranted) to reduce Mr Jones’s hours to 64 per fortnight (that is, up to a 20% reduction). This would have been consistent with the flexibility the employer sought to give itself with respect to other employees; a flexibility that was reasonable in the overall circumstances.

[55] I will order that in lieu of the words in the Direction:

“Your new minimum hours of work will be 48 hours per fortnight”

the following be substituted:

“Your new minimum hours of work will be no less than 64 per fortnight where in all the circumstances this reduction is necessary and reasonable”

[56] However, I add a significant note of caution. Given the objective evidence before the commission that productive work is currently available to Mr Jones at around the level of 80 hours per fortnight, I emphasise that a direction in these varied terms is not to be interpreted as a green light to reduce working hours of Mr Jones where there is no objective or fair basis for doing so. There would need to be objectively established operational requirements, considered in the context of available rostering hours for technical crews in Western Australia as a whole, if the full flexibility of the varied direction was to be utilised. Should those objective circumstances exist, Live Events should first explore reasonable alternatives to an hours or income reduction (such as redeployment to alternate roles but only if possible; assessment of training or development options; or the agreed draw-down of annual leave accruals). Further, it would be inappropriate for Live Events to leave the Direction in place (even in its varied form) if, during the period of its operation, the employer generally lifted the 20% reduction for other employees and returned its workforce to 100% of hours and salary.

[57] I note that while the direction is expressed by reference to fortnightly hours, Mr Jones is contractually employed by reference to weekly hours. This notwithstanding, the practice of fortnightly rostering is established in the business. A stand down direction expressed by reference to fortnightly working hours is not unreasonable as it allows a modicum of forward planning by the business and Mr Jones.

[58] A direction in these varied terms will be ordered to substitute for the Direction issued on 11 June 2020.


[59] An Order 14 will be issued under section 789GV(4)(c)(ii) substituting a different Jobkeeper enabling stand down direction by deleting from the Jobkeeper enabling direction of 11 June 2020 issued by Live Events Australia Pty Ltd to Allan Jones the words:

“Your new minimum hours of work will be 48 hours per fortnight”

and substituting in lieu:

“Your new minimum hours of work will be no less than 64 per fortnight where in all the circumstances this reduction is necessary and reasonable”.

[60] This order will apply from 11:59 pm on 3 July 2020.

The seal of the Fair Work Commission signed by Deputy President Anderson



A. Jones, on his own behalf

D. McLachlan, of counsel, with permission for the Respondent

Hearing details:

Adelaide, by telephone.
26 June.

Final written submissions:

Allan Jones: 28 June 2020
Live Events Australia Pty Ltd: 30 June 2020

Printed by authority of the Commonwealth Government Printer


1 22 June 2020 (Hampton C) and 24 June 2020 (Anderson DP)

2 R6

 3   A13 page 1

4 At least three race meets were postponed but re-scheduled

5 A3

 6   Although the evidence of Ms Cowle was that some staff who had agreed have not completed “the paperwork”

7 A4

8 R4

9 A6

10 A9

 11   3 days: see Section 789GM(1)(b) FW Act

 12   Reply submission by email 28 June 2020 5.50pm

 13   Transport Workers Union of Australia Queensland Branch v Prosegur Australia Pty Ltd [2020] FWC 3139 at [18] – [20]

 14   PR 720675