By Ceri Hohner

As a result of the new Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 (Cth)(JobKeeper Act) being passed into law in mid-April 2020, temporary changes have been made to the Fair Work Act 2009 (Cth) (FW Act) to enable employers to make directions and requests in relation to their employees’ working conditions. But with power comes responsibility, and the changes have also brought with them a new jurisdiction of dispute resolution, managed by the Fair Work Commission (FWC).

Many employers may already be familiar with the FWC; they may have appeared in a telephone conciliation conference for an unfair dismissal or general protections claim or been required to attend mediation for a bullying dispute. The FWC is also the government body which creates and amends modern awards, approves or rejects enterprise agreements, and determines the annual wage increase.

The new jurisdiction under Division 10 of Part 6-4C of the FW Act allows the FWC to deal with disputes about the JobKeeper arrangements, including full and partial JobKeeper-enabling stand downs, alteration of duties and location of work, and requests for an employee to change their days of work and/or take annual leave. Such disputes may arise in either of two ways:

  • by an employee (or a union on their behalf) objecting to a JobKeeper direction made by an employer (for example, that it is not reasonable, or the minimum period of notice was not given) or an employer refused to permit secondary employment/training/professional development; or
  • by an employer who asserts that an employee’s refusal of a JobKeeper request is ‘unreasonable’.

The FWC can deal with a dispute in a myriad of ways, including mediation or conciliation (facilitated dispute resolution methods that require the parties to agree on an outcome), making a recommendation or expressing an opinion (which is a non-binding determination by the FWC), or conducting arbitration (which is a formal process similar to a hearing, in which a binding determination is made by the FWC). Outcomes of these processes may include:

  • confirming a JobKeeper direction (and making such orders as to give effect to the direction);
  • setting aside a JobKeeper direction;
  • replacing a JobKeeper direction with a different JobKeeper direction (for example, a partial stand-down instead of a full stand-down); or
  • any other order that the FWC considers appropriate.

As the temporary changes to the FW Act will cease on 27 September 2020, any orders made by the FWC in respect of JobKeeper disputes will also end on this date, unless the Government extends the timeframe of the legislation.

Non-compliance with an order made by the FWC in this jurisdiction may lead to civil penalties being awarded against a business or an individual, up to a maximum of $63000 and $12600 respectively (noting that any individuals knowingly involved in the contravention, including but not limited to owners, directors or HR managers, can be fined).

Due to the current COVID-19 circumstances, the FWC will deal with a dispute by telephone/videoconference, or ‘on the papers’ (meaning that it will consider the matter based on written documents). Applications will not be accepted in-person or by post, but applicants can still use email, fax, or the FWC’s online lodgement service.

It should be noted that failure to pay an employee:

  • the wage condition ($1500 per JobKeeper fortnight, before tax);
  • the minimum payment guarantee (ensuring the employee is paid no less than the wage condition or their remuneration entitlements for work performed and leave taken, whichever is greater); or
  • the hourly rate of pay guarantee (ensuring that the employee’s hourly base rate is no less than their usual rate or the rate that applies to the duties they are performing, whichever is greater) is not the basis for applying for dispute resolution in the FWC.

Where an employer is non-compliant with any of the above conditions, they have contravened a civil remedy provision, meaning that the person affected can apply directly to a court (noting that the FWC does not have jurisdiction to determine civil remedy provisions). Generally, the FWC cannot assist with any disputes relating to entitlements to JobKeeper payments employers refusing to apply for JobKeeper entitlements or disputes about underpayments.

In addition to the new jurisdiction of JobKeeper disputes, there is also an increased risk to businesses of unfair dismissal and general protections claims. Employers should carefully consider before any actions are taken, preferably with the benefit of professional advice.

For more information on dispute resolution of JobKeeper matters, please contact the team at HR Assured.

Ceri Hohner is an associate and solicitor at FCB Workplace Law who has assisted clients across Australia from a range of industries and businesses.