What JobKeeper disputes can the FWC can deal with?

Today, the Fair Work Commission (FWC) has ruled that it has jurisdiction to deal with a dispute about an employer’s practices in respect of the wage condition and minimum payment guarantee obligations that arise under the Fair Work Act 2009 (Cth) (FW Act) from the JobKeeper scheme.

The FWC determined that:

  1. At the time of making the application the employee was an eligible employee and his employer was an eligible employer (for the purposes of JobKeeper eligibility).
  2. The dispute related directly to the employer’s application of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Payments and Benefits Rules) and the employer’s obligation to meet the wage condition and the minimum payment guarantee under the Fair Work Act 2009 (Cth) (FW Act).
  3. The dispute was a dispute about the operation of Part 6-4C of the FW Act and within the FWC’s jurisdiction.

It is important to remember that the wage condition and the minimum payment guarantee are not contingent on an employee having been stood down under a JobKeeper enabling direction.

The matter will now be conciliated. If unsuccessful, the matter will proceed to arbitration.

Background

The Qantas employee was stood down from any work, shift or duty commencing on or after 12.01AM on 6 April 2020.

On 15 April 2020 Qantas made two payments to the employee:

  • $2,352.30 (gross) for work performed up to the commencement of the stand down on 6 April 2020; and
  • $647.70 (gross) as a JobKeeper “top up”.

Qantas argued that the FWC could not deal with the dispute because, among other things:

  • the dispute was not a dispute about the operation of Part 6-4C of FW Act; and
  • the claim was an underpayment claim which, according to the FWC’s JobKeeper benchbook, was not within its jurisdiction.

The employee maintained that the dispute was about the proper interpretation of Part 6-4C of the FW Act and in particular the obligations in sections 789GD (wage condition) and 789GDA (minimum payment guarantee) of the FW Act

The FWC said that:

  1. at the time of making his application the employee was an eligible employee and his employer was an eligible employer;
  2. the employee was in receipt of a “top up” payment by his employer under the JobKeeper scheme;
  3. the payment fortnights that are the subject of his dispute are payment fortnights related directly to his employer’s application of the Payments and Benefits Rules and the employer’s obligation under Part 6-4C of the FW Act, to meet the wage condition and the minimum wage guarantee.

Therefore, the FWC has jurisdiction to deal with the dispute.

The dispute itself

The employee asserts that the “top up” payment should have been $1,500 gross for the second fortnight in April 2020. He says he has been underpaid $852.30.

Qantas says that it can apply payments to monthly paid employees across two fortnights, and to apply wages earned (if any) across those fortnights in a reasonable manner. It says that the employee received $3,000 (gross) in total across the two fortnights in April 2020, including payment for work done plus a JobKeeper “top up” to this amount.

If the dispute proceeds to arbitration it will provide useful guidance about an employer’s obligations (in respect of the wage condition and minimum payment guarantee) to employees who are paid monthly.

If you would like to discuss this further and the implications for your business please contact our Employment + Workplace Relations Partner, Erin Lynch.

Erin Lynch, Partner
M +61 477 330 202
E erin.lynch@vincentyoung.com.au

The contents of this publication do not constitute legal advice and are for general information purposes only.  You should seek legal advice regarding your particular circumstances.