DECISION

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

Mr Matthew Guerin
v
Horndale Pty Ltd T/A Eagle Heights Mountain Resort
(C2020/5611)

Application for the Commission to deal with a JobKeeper dispute (Coronavirus economic response) – a dispute about eligibility to participate in JobKeeper scheme after refusal to work additional hours – recommendation made – application dismissed.

[1] On 20 July 2020, Mr Matthew Guerin 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 Horndale Pty Ltd T/A Eagle Heights Mountain Resort (Horndale), Mr Guerin’s employer.

Background

[2] Mr Guerin has been employed by Horndale since at least March 2019, working in the bottle shop of the resort. He is a casual employee and works a shift of approximately 9.5 hours on Saturdays, earning approximately $290.00 - $300.00.

[3] Mr Guerin is studying a Bachelor of Veterinary Science (Honours) at the University of Queensland’s Gatton campus. It is a demanding course, requiring a minimum of 31 hours of face-to-face contact Monday to Friday. In Semester 1, in the first half of 2020, on account of COVID-19, much of this learning was done on-line. In-person tuition has resumed for Semester 2.

[4] On Sunday afternoons Mr Guerin typically leaves his parents’ house at Mount Tambourine and travels to campus to reside there until Friday. It is a distance of approximately two hours, and his residency on the university campus disqualifies him from working any shifts at the bottle shop Monday to Friday.

JobKeeper

[5] In April 2020, Horndale became eligible to receive JobKeeper payments for eligible employees; Mr Guerin was enrolled in the scheme. He received four fortnightly payments, topping his fortnightly payments to $1,500.00. It is noted that this is a substantial windfall for Mr Guerin compared with his typical fortnightly wages of approximately $580.00 - $600.00.

[6] It is Mr Guerin’s evidence that he was telephoned by Mr Christopher Boyd, Bottle Shop Manager on 13 May 2020 and advised that Ms Theresa Poots, Director, had informed Mr Boyd to inform Mr Guerin that the JobKeeper payment is not “free money”, and he would have to work an additional shift of 9.5 hours on Fridays. In May 2020, Mr Guerin was learning from home, but determined that he had consolidated learning and could not agree to work on Fridays. Mr Guerin stated that Mr Boyd said to him that if he did not work the additional shift he might need to be “put off until this whole thing blows over.”

[7] Mr Guerin checked his university schedule and satisfied himself that he was unable to work the additional shift. On 15 May 2020, Mr Boyd telephoned him again and asked him for his response. Mr Guerin stated that he could not presently work the extra requested shift and would be able to work extra shifts throughout the year when university was on holidays. His evidence is that Mr Boyd stated that he could be required to work up to 20 hours per week whilst on JobKeeper. Mr Guerin again declined the request. Mr Boyd informed Mr Guerin that he would be required to work Saturdays but would be taken off the JobKeeper scheme as a consequence for not complying with the employer’s requirements.

[8] On 24 May 2020, Ms Poots attended the bottle shop to drop off a toner cartridge. She asked Mr Guerin if he could work additional hours, to which he declined. She requested he work a Sunday shift instead of the additional Friday shift which Mr Guerin declined.

[9] Mr Guerin noticed that he was no longer in receipt of the JobKeeper payment the week commencing 27 May 2020. He made inquiries to the ATO and to the Fair Work Ombudsman.

Conference

[10] On 22 July 2020 I convened a telephone conference. Mr Guerin participated, together with Ms Poots and Ms Mandy Wilkinson, Bookkeeper. Prior to the conference Ms Poots provided a statement of Mr Boyd dated 21 July 2020 which confirmed the following:

(a) He was asked by Ms Poots to contact Mr Guerin to work an additional shift, as employees from the hotel had been working in the bottle shop, but with the hotel about to re-open, they would then move across to the hotel;

(b) He considered that because Mr Guerin was studying university at home, he had capacity to work an additional shift, and should help out in the difficult position the business faced;

(c) Mr Guerin declined because of his university commitments;

(d) He informed Mr Guerin that if he declined, Ms Poots would take him off JobKeeper and only pay him his wages for Saturdays worked;

(e) He informed Mr Guerin that JobKeeper was not free money, and all other employees were doing shifts to cover the operation;

(f) He does not recall stating that Mr Guerin might get put off until this was all over;

(g) A couple of days later he called Mr Guerin and when he declined to work an additional shift he informed him that Ms Poots would now take him off JobKeeper and only pay him for the Saturday hours worked;

(h) Additional staff were required to work the shift that Mr Guerin declined to work.

[11] During the conference Ms Poots stated it is her understanding that the bottle shop was no longer eligible to receive JobKeeper payments for its eligible employees due to it no longer suffering a reduction of 30% revenue. She considered and had received advice that there needed to be ongoing eligibility, and therefore a business decision had been made not to claim for that part of the business.

[12] Further, she stated that she could not or did not want to cover the up-front cost of paying to Mr Guerin the amount of $1,500 per fortnight and await reimbursement from the ATO for a considerable period of time later.

[13] Ms Poots stated that the business has around 11 other employees who work in the hotel in receipt of JobKeeper payments. She considered that they had all been flexible and accommodating, working whatever hours are required of them. She finds it very difficult to afford to pay to them the $1,500 per fortnight and await reimbursement from the ATO, which can take up to 10 days from end-of-month. At one point during the conference Ms Poots suggested that she would take everybody off JobKeeper because she couldn’t afford to cover the costs associated with the delay in payments. I pointed out to Ms Poots it was a ridiculous proposition that she would assert, because of the delay in receiving payment from the ATO, that she would “knock-back” the amount of 11 x $1,500 per month = $16,500 and pay it from the funds of the business. I addressed with her that even if she was required to obtain funding, or borrow on account of the delay in payment, any cost of interest would not come close to $16,500 per month in free government funding.

[14] I questioned Mr Guerin if he was capable and agreeable to working some additional hours on Sundays on account of receipt of $750 per week for approximately $300 work of work. I stated that he was not under any obligation to do so, but he could agree to do so. He stated that he would be agreeable to work an additional shift of up to six hours on Sundays.

Post-conference

[15] I afforded the parties an additional few days to address the Commission on any other relevant material they wished for the Commission to know before deciding the application “on the papers”, as neither party wished for a hearing to be convened.

[16] Mr Guerin provided evidence of his recently published university timetable demonstrating a very extensive amount of contact hours (around 35) on campus between Monday to Friday. He stated that he planned to leave home at around midday on Sundays to arrive on campus at around 2:00pm and prepare for the week of study. Accordingly, he would not be able to work a shift on Sundays.

[17] The further information provided by Horndale included an assertion by Ms Poots that she had undertaken research which led her to the conclusion that “full-time students” were excluded from JobKeeper payments. She did not state if her research is pertinent to school students under the age of 18, because there is no such exclusion for university students, noting that Mr Guerin is 20 years of age.

[18] Ms Poots stated that the JobKeeper “top-up” payment Mr Guerin would be entitled to receive for June is $1,713.05, and for July an amount of $1,681.82. She stated that she would not be willing to pay this amount unless the ATO agrees to pay it to the business. She again declared that the eligibility test is a monthly test. She is wrong about that. The ATO website is very clear that for the first tranche of JobKeeper payments, the relevant business only needed to satisfy the eligibility test once: 1

“How to determine a fall in turnover

You only need to satisfy this requirement once – you don't need to retest your turnover each month. However, you will be asked each month to tell us your current and projected turnover.”

Is this a dispute about Part 6-4C of the Act?

[19] Part 6-4C of the Act was introduced in conjunction with the legislative changes accompanying the JobKeeper programme, and commenced from 9 April 2020.

[20] Part 6-4C allows employers to give certain directions to employees (JobKeeper enabling directions) and make certain requests of them. Part 6-4C also requires the Commission to deal with applications concerning certain JobKeeper disputes.

[21] Section 789GV of the Act provides:

“789GV FWC may deal with a dispute about the operation of this Part

(1) The FWC may deal with a dispute about the operation of this Part.

(2) The FWC may deal with a dispute by arbitration.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(3) The FWC may deal with a dispute only on application by any of the following:

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an employer organisation.

(4) The FWC may make any of the following orders:

(a) an order that the FWC considers desirable to give effect to a jobkeeper enabling direction;

(b) an order setting aside a jobkeeper enabling direction;

(c) an order:

(i) setting aside a jobkeeper enabling direction; and

(ii) substituting a different jobkeeper enabling direction;

(d) any other order that the FWC considers appropriate.

(5) The FWC must not make an order under paragraph (4)(a) or (c) on or after 28 September 2020.

(6) An order made by the FWC under paragraph (4)(a) ceases to have effect at the start of 28 September 2020.

(7) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.”

[22] The dispute before the Commission is not one of a JobKeeper enabling direction. Those matters are limited to the following provisions:²

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

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

(c) Work a reduced number of hours (compared with the employee’s ordinary hours of work).

Consideration

[23] Mr Guerin’s dispute with Horndale is a dispute about his continuing eligibility for JobKeeper payments and Horndale’s decision not to claim JobKeeper for Mr Guerin where he refuses to work hours in addition to his usual Saturday hours. It is not a dispute about the operation of Part 6-4C, which 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.

[24] 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.

[25] 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.

[26] 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.

[27] 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.

[28] 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.

[29] The dispute which is 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.

Recommendation

[30] Whilst I have concluded that the Commission has no power to deal with the dispute, I consider it appropriate to issue the following recommendation.

[31] The evidence is clear that Horndale, together with Ms Poots and Mr Boyd determined that because Mr Guerin refused to work additional hours, he should be removed from the JobKeeper scheme and no longer receive the payment of $1,500 per fortnight. It is stated so in Mr Boyd’s statement of 21 July 2020.

[32] There is no sound basis to do so, noting that even the payment of approximately $600 per fortnight in wages owing to Mr Guerin on account of his Saturday work would then become directly payable from Horndale without reimbursement by the ATO to Horndale. Horndale has not made a decision to remove other JobKeeper eligible employees from the scheme on account of the cost of paying to them $1,500 per fortnight and awaiting reimbursement from the ATO.

[33] It appears to me that Mr Guerin may have a cause of action against Horndale, Ms Poots and Mr Boyd which he could pursue under s.372 of the Act. I recommend Horndale pay to Mr Guerin the amount of $1,500 per fortnight for all eligible JobKeeper fortnights up until 27 September 2020, and obtain reimbursement from the ATO for such payments.

[34] Horndale should determine its eligibility for JobKeeper tranche 2 at the appropriate time.

Conclusion

[35] The Commission has no power to deal with the dispute. The application is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   Australian Taxation Office, “JobKeeper Payment – Employers – Eligible employers”, as at 27 July 2020, available at: <https://www.ato.gov.au/general/jobkeeper-payment/employers/eligible-employers/>.

² JobKeeper enabling direction means a direction authorised by section 789GDC, 789GE or 789GF.