Jobkeeper disputes

The jobkeeper scheme was a temporary wage subsidy for businesses significantly affected by coronavirus (COVID-19).

The Fair Work Act 2009 (the Act) was also varied to include temporary jobkeeper provisions on 9 April 2020. The provisions originally applied until 27 September 2020. They were varied and extended again in September 2020 to apply until 28 March 2021. Most of the jobkeeper provisions were repealed on 29 March 2021 which means they do not apply on or after that date.

The temporary jobkeeper provisions were different for employers who qualified for jobkeeper payments at a particular point in time and ‘legacy employers’ who had previously, but no longer, qualified for jobkeeper payments. You can find out more about the temporary jobkeeper provisions for qualifying employers and legacy employers in the Jobkeeper disputes benchbook.

On 29 March 2021, most of the jobkeeper provisions in the Act were repealed, except as explained below. This means that on and after 29 March 2021 an employer cannot:

• give an employee a jobkeeper direction, or
• request that an employee agree to change their days and time of work.

All jobkeeper directions and agreements stopped applying on 29 March 2021. Any orders made by the Fair Work Commission to give effect to a jobkeeper direction also stopped applying at the start of 29 March 2021.

On and after 29 March 2021, the Commission has limited power to deal with jobkeeper disputes. The Commission is no longer able to make orders giving effect to jobkeeper directions or substituting one jobkeeper direction for another. The Commission can make orders setting aside jobkeeper directions and other orders that it considers appropriate.

The jobkeeper provisions that continue to apply include:

• s.789GR, which provides that if an employee is subject to a jobkeeper direction for a period, that period counts as service; and
• s.789GS, which deals with how an employee accrues leave entitlements where a jobkeeper direction or agreement applies to the employee; and how redundancy pay and payment instead of notice of termination of employment are calculated where a jobkeeper direction or agreement applies to the employee.

What happens if a jobkeeper direction or agreement used to apply

From 29 March 2021, jobkeeper directions and agreements no longer apply. This means that from 29 March 2021 employees are not required to comply with the jobkeeper direction or agreement.

If the Commission made an order giving effect to a jobkeeper direction which applied to an employee, from 29 March 2021 the order no longer applies. This means the employee is not required to comply with it from 29 March 2021.

On and after 29 March 2021, an employee, employer, employee organisation or employer organisation can still apply to the Commission to deal with jobkeeper disputes about:

• the period during which a jobkeeper enabling direction applied counting as service, or
• accrual of leave entitlements and the calculation of redundancy pay or payment instead of notice of termination of employment where a jobkeeper enabling direction applied, or where a person had agreed to take paid annual leave under a jobkeeper agreement before 28 September 2020.

The Commission can deal with these disputes by arbitration, mediation, conciliation, expressing an opinion or making a recommendation.

You can make a jobkeeper dispute application if you are:

• an employee 
• an employer
• an employee organisation
• an employer organisation

The Commission can only deal with disputes between employees and employers covered by the national workplace relations laws.

Jobkeeper disputes benchbook

The Jobkeeper disputes benchbook is a an overview of the Commission’s legal procedure relating to the jobkeeper jurisdiction. It includes checklists about jobkeeper enabling directions and jurisdictional issues in relation to jobkeeper dispute

1. Download the form

Download and complete Form F13A – Application for the Commission to deal with a jobkeeper dispute (coronavirus economic response).

2. Send us the form

Email your completed form to melbourne@fwc.gov.au. If you have any supporting evidence, please also include this in your email.

Try to fill out your application form as accurately as possible. Mistakes in application forms can cause delays dealing with your jobkeeper dispute.

Tips for filling out your form properly

• The correct legal name of the employer: If the Respondent is your employer, the legal name of the respondent is the name of your employer (not the name of a person such as your boss).
  • For example, if you work for Energy Fitness Pty Ltd and your boss’s name is Alex Smith, then the legal name of the respondent is ‘Energy Fitness Pty Ltd’ and the name of a person we can contact is ‘Alex Smith’.
  • The legal name is different from the trading name or business name. You can find your employer’s legal name on your payslips, PAYG payment summary, appointment letter or employment contract.
  • You can search your employer’s ABN using the ABN Lookup. This will help you write the correct legal name of your employer on your application form.
• Missing contact details: Make sure you have provided the address, telephone and email address for yourself and a person for the other side. 
• Incomplete form: Make sure you have answered all of the questions on the application form. If you don’t answer all the questions, we may not have enough information to deal with your jobkeeper dispute.
• Sign and date your form: Make sure you sign and date your application form. If you’re filling out the form electronically, you can type your name into the name section and in the signature section of the form.

The Commission deals with jobkeeper dispute applications quickly.

Commission staff will check your application to make sure it includes all the information we need. We will contact you if anything is missing or if there is a problem with your application.

A Commission Member will then decide how to deal with your jobkeeper dispute. This often involves holding a telephone or video conference or hearing. The Commission Member will run the conference or hearing and it will include you and a person from the other side.

Commission Members can direct the people involved in a jobkeeper dispute to provide more information in writing. Sometimes a Commission Member will make a decision based on written material only.

All of the people involved in the jobkeeper dispute need to have all of the information. This helps us to deal with disputes fairly. The Commission will give copies of the application form and all submissions and evidence it receives about a case to both sides. If you are concerned about particular information being passed on, please contact us before sending it. The Commission can’t deal with disputes confidentially.

The Commission can deal with a jobkeeper dispute by:

• Mediation or conciliation – A Commission Member contacts the employer and employee by telephone or video conference to talk about the dispute. The aim is to help both sides agree on how to resolve it. Both sides will have a chance to tell their side of the dispute.
• Giving a recommendation or an opinion – A Commission Member can give a written recommendation or opinion about how the employer and employee could resolve the dispute.
• Arbitration – A Commission Member can make a final and binding decision on how the dispute is to be resolved. Decisions are published on the Commission’s website. The Commission Member may also make an order.

Orders

An order is a ruling made by the Commission Member after they hear the dispute. Anyone bound by an order must comply with it.

From 29 March 2021, a Commission Member can make:

• an order that sets aside a jobkeeper direction, or
• any other order that the Commission Member considers appropriate.

Orders made by Commission Members before 29 March 2021 that gave effect to a jobkeeper direction, or that substituted one jobkeeper direction for another, stopped applying on 29 March 2021.

There are workplace rights relating to the jobkeeper provisions in Part 6-4C of the Act. These workplace rights are protected under the general protections provisions of the Act.

A person must not take adverse action against another person because the other person has or had a workplace right or exercises, exercised or proposes to exercise a workplace right.

Different government agencies were responsible for different parts of the jobkeeper scheme.

End of jobkeeper

The Fair Work Ombudsman has information on what happens now that the jobkeeper scheme has ended.

You can also phone the Fair Work Ombudsman on 13 13 94.

Pay and jobkeeper

The Australian Tax Office administered the jobkeeper payment scheme. There is more information on the jobkeeper payment scheme on the Australian Tax Office website.

The Commission cannot deal with disputes about whether an employer or employee was eligible for jobkeeper payments or give advice about whether an employee was an eligible employee. The Commission does not have power to make orders about payment of jobkeeper payments.